J-A08002-19

                                 2019 PA Super 317



 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 DAVID WHATLEY                             :
                                           :
                     Appellant             :   No. 1820 WDA 2017

            Appeal from the Judgment of Sentence July 18, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001802-2016


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

OPINION BY PANELLA, P.J.:                            FILED OCTOBER 18, 2019

      David Whatley appeals from the judgment of sentence imposed on July

18, 2017, following his guilty plea conviction of arson and related offenses.

Appellant was sentenced to five years of probation and ordered to pay $50,000

in restitution as a condition of probation. On appeal, he challenges the legality

and discretionary aspects of the order of restitution. Upon review, we conclude

that because the trial court imposed restitution without considering Appellant’s

ability to pay, the order imposing such restitution constitutes an illegal

sentence. Accordingly, we vacate Appellant’s sentence and remand for

resentencing.

      On April 19, 2017, Appellant entered a negotiated guilty plea to two

counts of arson (endangering property–reckless endangerment of inhabited

building), one count of arson (intent to destroy unoccupied building), and one
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count of risking catastrophe.1 The charges stemmed from Appellant setting

fire to an unoccupied house at 2503 Cleveland Street, McKeesport,

Pennsylvania. See N.T., Guilty Plea Hearing, 4/19/17, at 7. The fire also

caused damage to both 2501 and 2505 Cleveland Street. See id.

        With the benefit of a presentence investigation report, the trial court

sentenced Appellant to five years of probation. Upon agreement of the parties,

the court ordered a restitution amount of zero, but left restitution open for

motion by the parties within thirty days. See N.T., Sentencing, 7/18/17, at 3,

6.

        The trial court held restitution hearings on October 2, 2017, and October

23, 2017. On October 26, 2017, the court issued an amended sentencing

order, setting restitution in the amount of $50,000.00 as a condition of

Appellant’s probation. The trial court denied Appellant’s motion to reconsider,

and Appellant filed this timely appeal.

        Appellant raises two questions on appeal:

        1. Whether the sentence was illegal as [Appellant] was not present
        for the restitution hearing and it was conducted well outside the
        (90) ninety days where [Appellant] is required to be sentenced
        and the counts to which restitution was ordered were withdrawn
        by the Commonwealth at the time of the plea and the court left
        restitution open at the time of sentencing?

        2. Whether the order of restitution was excessive and an abuse of
        discretion as it failed to provide adequate reasons for determining
        the amount and the evidence relied upon was vague and
        unsubstantiated?

____________________________________________


1   See 18 Pa.C.S.A. §§ 3301(c)(2), 3301(c)(1), and 3302(b), respectively.

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Appellant’s Brief, at 7 (unnecessary capitalization omitted; issues renumbered

for ease of disposition).

      In the first issue, Appellant claims that the restitution ordered

constitutes an illegal sentence. Specifically he claims the sentence was illegal

both because it was not imposed within ninety days of his plea and because

he was not present at the first of two restitution hearings. See Appellant’s

Brief, at 17-23. We agree that the sentence is illegal, but do so on other

grounds.

      This case implicates the legality of Appellant’s sentence.

      The scope and standard of review applied to determine the legality
      of a sentence are well established. If no statutory authorization
      exists for a particular sentence, that sentence is illegal and subject
      to correction. An illegal sentence must be vacated. In evaluating
      a trial court’s application of a statute, our standard of review is
      plenary and is limited to determining whether the trial court
      committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006)

(citations omitted).

      In the instant case, the trial court stated that it imposed restitution as

a condition of Appellant’s probation pursuant to 42 Pa.C.S.A. § 9754, which

states:

      (a) General Rule.—In imposing an order of probation the court
      shall specify at the time of sentencing the length of any term
      during which the defendant is to be supervised, which term may
      not exceed the maximum term for which the defendant could be
      confined, and the authority that shall conduct the supervision.

      (b) Conditions generally.—The court shall attach such of the
      reasonable conditions authorized by subsection (c) of this section


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      as it deems necessary to insure or assist the defendant in leading
      a law-abiding life.

      (c) Specific conditions.—The court may as a condition of its
      order require the defendant:

                                       …

            (8) To make restitution of the fruits of his crime or to
            make reparations, in an amount he can afford to
            pay, for the loss or damage caused thereby.

42 Pa.C.S.A. § 9754(a)-(c)(8) (emphasis added).

      As a direct sentence, restitution is authorized by 18 Pa.C.S.A. § 1106,

which mandates that courts shall sentence offenders to make restitution in

certain cases of injury to persons or property. See 18 Pa.C.S.A. § 1106(a).

Such restitution is limited to direct victims of the crime and requires a direct

nexus between the loss and the amount of restitution. See Commonwealth

v. Harner, 617 A.2d 702, 706 (Pa. 1992).

      However, when restitution is imposed as a condition of probation

pursuant to section 9754, its purpose is to rehabilitate the defendant and

provide some redress to the victim. Under section 9754, the sentencing court

is given the flexibility to fashion the condition to rehabilitate the defendant.

See Harner, 617 A.2d at 706. Therefore, the requirement of a nexus between

the loss and amount of restitution is relaxed. See Commonwealth v. Hall,

80 A.3d 1204, 1215 (Pa. 2013). Notably, restitution imposed under section

9754 also is unique in that it requires a court to explicitly consider a

defendant’s ability to pay.




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       Pennsylvania courts have consistently held that a determination of a

defendant’s ability to pay is an integral requirement of imposing restitution as

a condition of probation. In Harner, our Supreme Court held that a trial court

must determine what damage a victim suffered, what amount of restitution

appellant can afford to pay, and how the appellant should pay restitution. See

id. at 707. Similarly in Commonwealth v. Kinnan, 71 A.3d 983 (Pa. Super.

2013), this Court stated: “[w]here a sentencing court imposes restitution as

a probationary condition, sub-section 9754(c)(8) obligates the court to

determine what loss or damage has been caused and what amount of

restitution the defendant can afford to pay.” Id. at 987 (citations omitted).

       Accordingly, where a sentencing court fails to consider a defendant’s

ability to pay prior to imposing restitution as a probationary condition, the

order of restitution constitutes an illegal sentence. See Kinnan, 71 A.3d at

988.

       In the instant case, the record reflects that the sentencing court did not

consider Appellant’s ability to pay prior to issuing its order imposing

restitution. During the initial restitution hearing, the court heard testimony

from George Stroz, the owner of the home at 2505 Cleveland Street. See

N.T., Restitution Hearing, 10/2/17, at 3. Stroz described the damage the fire

caused to his home and belongings. See id. at 3-10. He also estimated the

value of the damages he suffered due to the fire. See id., at 11-12. The court

then continued the hearing to give Appellant the opportunity to present

witnesses.

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      At the continuation of the hearing, the Commonwealth presented

testimony from fire investigator Michelle Gregory concerning her investigation

and assessment of the damage to Stroz’s house. See N.T., Restitution

Hearing, 10/23/17, at 6-16. Appellant neither testified nor presented any

witnesses on his behalf. Significantly, the trial court did not make any inquiry

into Appellant’s ability to pay restitution at either hearing. See generally

N.T., Restitution Hearing, 10/2/17, at 3-20; N.T., Restitution Hearing,

10/23/17, at 3-25.

      We therefore conclude that by failing to consider Appellant’s ability to

pay prior to imposing restitution as a condition of his probation pursuant to

section 9754(c)(8), the court exceeded its statutory authority. As a result, the

restitution order imposed constitutes an illegal sentence, and we vacate the

judgment of sentence. Because we have determined the sentence is illegal,

we need not reach the merits of Appellant’s other claims.

      Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




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