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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ESTATE OF LITE BELESKY,                 :         No. 2218 EDA 2012
                                        :
                        Appellant       :


                Appeal from the Order Entered June 29, 2012,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0604741-2006


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 08, 2014

      Appellant, the Estate of Lite Belesky (“the Estate”),1 appeals the order

enforcing a sentence of restitution by garnishing funds from a structured

settlement of which the deceased defendant below was a beneficiary.

Finding no error, we affirm.

      The trial court’s opinion accurately related the factual and procedural

history:

                  On February 8, 2007, [the deceased] was
            sentenced to 2 1/2 to 6 years incarceration, 8 years
            consecutive probation, and restitution in the amount
            of $168,319.03 after pleading guilty to theft by
            deception and criminal conspiracy arising out of a
            theft by deception scheme that [the deceased] and
            his mother, Janet Belesky, perpetrated against the
            complainant, 74 year old Jeanne Sherman, between

1
  The defendant in this criminal case, Lite Belesky, died during the pendency
of this appeal, and the Estate was substituted to represent his interests.
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           March 22, 2005 and February 22, 2006. In addition
           to the sentence, as a condition, the sentencing judge
           ordered that proceeds due [the deceased] from
           previous litigation were to be garnished for
           restitution, payable to the complainant or her estate
           in the event of her demise. To date, according to
           the motion, [the deceased] has paid $679.21 toward
           his restitution.   The last payment was made on
           March 8, 2010 in the amount of $14.82.             On
           March 30, 2012, the Commonwealth filed a motion
           for garnishment of [the deceased’s] $75,000
           structured settlement payment through Genworth
           Financial, Inc.

                  [The    deceased]      submitted    a   response
           conceding that this Court has jurisdiction over
           restitution, but, that because there is no statute
           specific to this situation, civil law should govern. He
           therefore argues that the garnishment of [the
           deceased’s] settlement funds is prohibited by the
           Structured Settlement Protection Act, 40 P.S.
           §4003(a). The Commonwealth responded with a
           memorandum of law opposing [the deceased’s]
           interpretation and arguing that the criminal court has
           jurisdiction over matters of restitution. On June 29,
           2012, following a hearing, and upon consideration of
           the submissions of both counsel, the record and case
           law, the Court granted the Commonwealth's motion
           and ordered that the $75,000.00 structured
           settlement payment due [the deceased] be placed
           into an escrow account pending appeal, instructing
           that no deposits, withdrawals, transfers or
           transactions other than interest accrual take place
           without a written order from the Court. This appeal
           followed.

Opinion, 12/31/12 at 1-2.

     The Estate raises the following issues on appeal:

           I.    Is the [deceased] entitled to an arrest of
                 judgment with regard to the Restitution By
                 Garnishment Order where the Commonwealth
                 failed to prove entitlement to such an Order


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                   when the Commonwealth failed to prove that a
                   structured    settlement   is    exempt     from
                   garnishment; that a corpus emanating from a
                   Minor’s Compromise can be garnished; and
                   where there is a lack of jurisdiction to proceed
                   in a criminal courtroom?

            II.    Is the [deceased] entitled to an arrest of
                   judgment on the Order Directing Restitution
                   via Garnishment, where the Order is not
                   supported by any Pennsylvania statute or case
                   law, and where the existing statutory laws
                   would hold that such an Order is barred and
                   unlawful?

            III.   Is the [deceased] entitled to an arrest of
                   judgment and a quash of the garnishment
                   ordered as the Court had no legal authority to
                   order the garnishment to come from a fund
                   which merely reimbursed the [appellant] for
                   losses sustained?

The Estate’s brief at 3.

      We begin our analysis with our standard of review:

            “An appeal from an order of restitution based upon a
            claim that a restitution is unsupported by the record
            challenges the legality, rather than the discretionary
            aspects, of sentencing.”        [Commonwealth v.
            Atanasio, 997 A.2d 1181 (Pa.Super.2010)], at 1183
            ( citing Commonwealth v. Redman, 864 A.2d 566,
            569 (Pa.Super. 2004), appeal denied, 583 Pa. 661,
            875 A.2d 1074 (2005)). “When we address the
            legality of a sentence, our standard of review is
            plenary and is limited to determining whether the
            trial   court  erred     as   a   matter    of    law.”
            Commonwealth v. Pombo, 26 A.3d 1155
            (Pa.Super. 2011) (citation omitted).

Commonwealth v. McKee, 38 A.3d 879, 881 (Pa.Super. 2012). Moreover,

claims that restitution was entered without authority or without jurisdiction



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likewise challenge the legality of the sentence.           Commonwealth v.

Dietrich, 970 A.2d 1131, 1133 (Pa. 2009).

      The Estate first challenges the jurisdiction of the trial court to enter an

order of garnishment. Essentially, it is arguing that the trial court, sitting as

a criminal court, was without authority to enter a civil remedy of

garnishment.

      We disagree with the Estate’s underlying assumption that the court’s

action here constituted a civil garnishment; rather, it constituted the

enforcement of a criminal sentence of restitution. Garnishment was merely

the   terminology    chosen   by   the    Commonwealth    in   its   motion,   and

subsequently employed by the trial court, undoubtedly because the action

was similar to the civil proceeding of garnishment. However, in reality, the

action of the trial court here was to order the seizure of the deceased’s

assets in order to satisfy the sentence of restitution.     Our statutes clearly

authorize the criminal court to seize potential restitution assets:

            (e)     Preservation       of    assets     subject    to
                    restitution.--Upon       application    of    the
                    Commonwealth, the court may enter a
                    restraining order or injunction, require the
                    execution of a satisfactory performance bond
                    or take any other action to preserve the
                    availability of property which may be necessary
                    to satisfy an anticipated restitution order under
                    this section:




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42 Pa.C.S.A. § 9728(e), in pertinent part.2

      Simply stated, the trial court’s action was not a civil garnishment

proceeding, but simply a lawful seizure of restitution assets for which it had

full jurisdiction to undertake. As noted by the Commonwealth, “restitution

can only be enforced by the criminal court.”     Commonwealth v. Pleger,

934 A.2d 715, 720 (Pa.Super. 2007).

      The Estate next argues that this transfer of funds violates the

Structured Settlement Protection Act (“SSPA”), 40 P.S. §§ 4001-4009.

Specifically, it indicates those provisions of the SSPA that require a petition

by the payee of the structured settlement to transfer such funds and court

approval of such transfer.

      First, the court’s action here does not qualify as a “transfer” as defined

under the SSPA:

            “Transfer.” Any direct or indirect sale, assignment,
            pledge, hypothecation or other form of alienation,
            redirection or encumbrance made by a payee for
            consideration, provided, however, that this shall not
            apply to a blanket security agreement used to secure
            a loan originating from a Federal or State chartered
            lending institution. Any transfer made or agreed to
            under this act shall be considered to be a consumer
            transaction.




2
   Although this statute is drafted in terms anticipating an award of
restitution, we find that it also supports the same preservation actions
following the award of restitution, as here.


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40 P.S. § 4002, in pertinent part.           The transfer here was not for

consideration but, rather, was a seizure of assets. Thus, it is not a transfer

governed by the SSPA.

      Second, the purpose of the SSPA clearly is to protect the injured

beneficiaries   of   structured   settlements   from   being   preyed   upon   by

unscrupulous parties who might try to obtain the beneficiary’s right to

payment by an offer of inadequate consideration.        See In re Benninger,

357 B.R. 337, 351 (Bkrtcy.W.D.Pa. 2006). The SSPA was not intended to

protect the assets of convicted criminals from being seized to give restitution

to their injured victims.

      Third, to the extent that the SSPA requires court approval of the

“transfer,” the court below specifically approved the seizure of these funds.

      Next, the Estate claims that pursuant to Pa.R.C.P., Rule 3123.1,

42 Pa.C.S.A., it may claim an exemption from attachment of certain types of

property which includes accident and disability insurance.3 The Rules of Civil

Procedure have no authority whatsoever in a criminal proceeding.               The

Estate’s argument is again predicated on the initial confusion caused by the

Commonwealth titling its original motion as one seeking garnishment. The

motion actually constituted a motion to seize restitution assets under

42 Pa.C.S.A. § 9728(e) and is a criminal rather than civil proceeding. The



3
 The deceased’s structured settlement apparently arose out of an insurance
policy of which he was the beneficiary.


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Estate cannot rely upon a Rule of Civil Procedure to avoid the seizure of

restitution assets in a criminal proceeding.

      Finally, the Estate baldly asserts that the assets cannot be seized

because they were compensatory damages intended to make the defendant

whole.   The Estate cites to no case or statute to support a finding that

compensatory damages are not subject to seizure for restitution. “[W]aiver

of an issue results when an appellant fails to properly develop an issue or

cite to legal authority to support his contention in his appellate brief.”

Commonwealth v. Cox, 72 A.3d 719, 721 n.3 (Pa.Super. 2013).

Consequently, we regard this issue as waived.

      Accordingly, having found no merit in the Estate’s arguments on

appeal, we will affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014




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