J-S32018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EARL FRANCIS DEMBY

                        Appellant                 No. 2385 EDA 2015


           Appeal from the Judgment of Sentence July 9, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0003388-2012


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EARL FRANCIS DEMBY

                        Appellant                 No. 2386 EDA 2015


           Appeal from the Judgment of Sentence July 9, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0006511-2014



BEFORE: BOWES, J., MUNDY, J., and PLATT,* J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:FILED JULY 20, 2016

     I agree that the sentence of incarceration must be vacated and

remanded for imposition of a Risk Recidivism Reduction Incentive sentence.

However, I disagree with my distinguished colleagues that the restitution



* Retired Senior Judge assigned to the Superior Court.
J-S32018-16


award must also be vacated.           I dissent from that portion as I believe the

restitution award may be upheld as a reasonable condition of rehabilitation.

       The restitution award herein was imposed for Appellant’s failure to

return a Soberlink device. Appellant was ordered to use this device, for a

period of 90 days, pursuant to an April 16, 2015 sanction order. This order

was prompted by Appellant’s failure to comply with all rules and regulations

of Delaware County’s Veteran’s Court Program, which was a condition of the

sentence imposed at these two cases.                 The order represented the

culmination of Appellant’s failure to abide by those rules over a period of

several years. Trial Court Opinion, 11/12/15, at 1.

       During this 90-day period, Appellant was twice arrested and charged

with new crimes.          The County’s probation department recommended

expulsion from the Veteran’s Court Program and resentencing on the

underlying crimes. On July 9, 2015, the trial court revoked probation and

resentenced Appellant.1 The Commonwealth further averred that Appellant

failed to return the Soberlink device2 and asked for restitution in the amount

of $1,200. The trial court agreed and awarded the full amount.



____________________________________________


1
     Appellant was also on parole as he had been originally sentenced to
county jail with consecutive periods of probation.
2
       Appellant contested this allegation; however, that factual finding is not
at issue in this appeal.



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      The trial court’s opinion justified the award as a valid condition of

probation or parole under 18 Pa.C.S. § 1106(b), which grants authority to

order restitution “pursuant to subsection (a).”     That subsection, in turn,

mandates restitution for property loss as a direct result of the crimes.      I

agree with the majority that the loss of the device is not a direct result of

any crime for which Appellant was sentenced.      Therefore, section 1106(b)

cannot justify the reward.

      However, it is well settled that a challenge to a court’s authority to

impose restitution implicates the legality of the sentence. Commonwealth

v. Hall, 994 A.2d 1141, 1143 (Pa.Super. 2010) (en banc). Issues relating

to the legality of a sentence are questions of law, and our standard of review

over such questions is de novo. Commonwealth v. Gentry, 101 A.3d 813,

817 (Pa.Super. 2014).

      We therefore must take note that Section 1106 of the Crimes Code is

not the only statutory basis for restitution. Section 9754 of the Judicial Code

governs orders of probation and explicitly provides for the award of

restitution in connection with efforts to rehabilitate. That section states, in

pertinent part:

      (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.
            ....

            (13) To satisfy any other conditions reasonably
            related to the rehabilitation of the defendant and not
            unduly restrictive of his liberty or incompatible with
            his freedom of conscience.

42 Pa.C.S. § 9754.

      Determining which title justifies the restitution award is crucial. Here,

the Appellant contends restitution cannot be imposed because the County is

not a “victim” for purposes of the Crimes Code’s restitution provision.

However, that issue is irrelevant under the Judicial Code’s restitution

scheme. A recent Supreme Court case, Commonwealth v. Hall, 80 A.3d

1204, 1216 (Pa. 2013), illustrates the point.     Therein, the Commonwealth

sought to affirm the trial court’s imposition, as a condition of probation, of a

payment of $200 per month to the victim’s children.        That defendant had

been convicted of voluntary manslaughter and received a sentence of five to

ten years incarceration plus ten years of probation. Clearly, the restitution

could not be justified under the Crimes Code, as the children were not

victims within the meaning of the statute, nor was the award a direct result

of the crime. The Court observed the interplay between the two competing

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restitution statutes to determine whether the restitution award could be

upheld:

     Nothing in the plain language of Section 9754 either
     specifies or limits the persons who may be proper
     subjects of restitution or reparation as a condition of
     probation, and the terms “restitution” or “reparation” are not
     defined by the statute. In contrast, the Crimes Code provision
     that authorizes restitution as part of a direct sentence for a
     crime involving personal injury expressly limits recovery to the
     direct victim of the crime: “Upon conviction for any crime . . .
     wherein the victim suffered personal injury directly resulting
     from the crime, the offender shall be sentenced to make
     restitution in addition to the punishment prescribed therefor.” 18
     Pa.C.S. § 1106(a) (“Restitution for injuries to person or
     property: General Rule”). In this case involving a homicide,
     obviously, the victim himself is deceased and cannot receive
     restitution. There is no indication that an estate was ever
     established on behalf of the victim, which could theoretically
     receive an award of restitution directed to the victim himself.
     See e.g., Commonwealth v. Dietrich, 601 Pa. 58, 970 A.2d
     1131 (2009) (sentencing court erroneously amended amount of
     restitution to victim's estate under Section 1106 beyond deadline
     for such modification); Commonwealth v. Lebarre, 961 A.2d
     176 (Pa.Super.2008) (sentencing court did not err in awarding
     restitution to victim's estate under Section 1106).

     The restitution ordered by the sentencing court here was
     directed toward the victim's children, which no doubt explains
     why the Commonwealth does not attempt to defend the order on
     the basis of Section 1106 of the Crimes Code, and why it argues
     that cases relying on Section 1106 are distinguishable.

Id. at 1213-14 (emphasis added).          Moreover, Hall pointed out that

restitution awards under the Judicial Code implicate different considerations

than awards under the Crimes Code:

     Thus, a condition requiring the defendant to take some measure
     of financial responsibility for the consequences of his criminal
     conduct may be reasonably related to the rehabilitation that
     probation is designed to foster. Probation itself is a form of

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      lenity in the context of criminal sentencing, and so long as
      essential constitutional liberties and freedoms are not
      disturbed, sentencing judges have discretion to fashion
      monetary obligations as conditions under Section
      9754(c)(8) and (13). Such conditions, so long as they are
      individualized and reasonable, may provide some measure of
      redress to those who have suffered financial hardship due to a
      defendant's crimes, while guiding the defendant towards a law-
      abiding path. In this case, the sentencing judge stated that she
      was seeking to assist appellee in understanding the cruelty of his
      actions, and that her “intent was that the defendant level the
      field he had disrupted when he killed the other children's father
      by contributing to their financial support.” Tr. Ct. Opinion,
      5/12/08, at 4–5. As a theoretical matter, an order like this
      serves rehabilitative purposes by bringing home the very real
      consequences of the crime.

Id. at 1216 (emphasis added).       Hall ultimately concluded that the child

support orders at issue in the case could not be justified under the statute.

      Applying the principles announced in Hall to this case, I think it is

plain that the Soberlink device was designed to rehabilitate Appellant. The

judge exercised lenity by not immediately incarcerating Appellant for his

multiple failures to comply with probation. Thus, when the judge revoked

probation on July 9, 2015, 42 Pa.C.S. § 9771(b) controlled.       That section

states that a “court may revoke an order of probation upon proof of the

violation of specified conditions of the probation . . . the sentencing

alternatives available to the court shall be the same as were available at the

time of initial sentencing[.]”   Accordingly, the award is justified by either

subparagraph (13) of 42 Pa.C.S. § 9754(c) (“To satisfy any other conditions

reasonably related to the rehabilitation of the defendant . . .”), or

subparagraph (8) (“To make restitution of the fruits of his crime or to make

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reparations[.]”).3      As we may affirm a trial court order on any basis

supported by the record, I would therefore affirm the restitution award

pursuant to § 9754(c).




____________________________________________


3
    I would note that the requirement that Appellant return the device in
working order after the ninety-day period was a condition of his probation.
Commonwealth v. Vilsaint, 893 A.2d 753, 757, n.5 (Pa.Super. 2006)
(“The courts have recognized implied conditions of probation, such as do not
commit another crime. Such implied conditions are obvious in nature.”)
(internal quotation marks omitted).



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