J. S26023/17

                               2017 PA Super 219

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MICHAEL DAVID ZRNCIC,                       :
                                            :
                          APPELLANT         :
                                            :     No. 1496 MDA 2016

                 Appeal from the Order Entered August 31, 2016
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002531-2008

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

OPINION BY DUBOW, J.:                                   FILED JULY 12, 2017

        Appellant, Michael David Zrncic, appeals from the August 31, 2016

Order entered in the Cumberland County Court of Common Pleas directing

Appellant to pay restitution in the amount of $1,527.26 to the Victims

Compensation Assistance Program and $1,038.77 to his minor victim’s

mother. On appeal, Appellant challenges the restitution that the trial court

awarded to the victim’s mother, averring that there is an insufficient nexus

between the loss claimed and the charge to which he pled guilty. For the

reasons that follow, we are constrained to vacate the portion of the

Restitution Order awarding $1,038.77 to the victim’s mother.




*
    Former Justice specially assigned to the Superior Court.
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       We briefly summarize the relevant facts and procedural history of the

instant case, as gleaned from the record, as follows. During a two-month

period in 2008, Appellant had an unlawful sexual relationship with a 15-

year-old female student at the karate school that he owned.                  Appellant’s

inappropriate   contact   with        his   victim   occurred   both   in   person   and

electronically, and included, inter alia, having the victim perform oral sex on

him.

       Police arrested Appellant and charged him with one count each of

Involuntary Deviate Sexual Intercourse (“IDSI”) and Unlawful Contact with a

Minor, two counts each of Aggravated Indecent Assault and Corruption of

Minors, and three counts of Indecent Assault. As part of their investigation,

police seized the victim’s laptop, which the Commonwealth avers contains

“direct evidence” that Appellant committed the offense of Unlawful Contact

with a Minor. Trial Court Opinion, dated 8/31/16, at 3.

       On January 8, 2009, Appellant entered into a negotiated guilty plea to

one    consolidated   count      of     Aggravated      Indecent   Assault    and    the

Commonwealth nolle prossed the remaining charges, including Unlawful

Contact with a Minor. The parties did not include restitution in the terms of

the plea agreement, and restitution became the subject of considerable

dispute.1


1
  The instant appeal represents the third time this Court has reviewed the
restitution award at issue in the instant case. As the earlier appeals are



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      Eventually, on August 31, 2016, the trial court ordered Appellant to

pay restitution totaling $1,527.26 to the Victims Compensation Assistance

Program and $1,038.77 to the victim’s mother. 2        The sum owed to the

victim’s mother represents the amount she paid to replace her daughter’s

laptop.   The police had seized the laptop as evidence as part of their

investigation into the charge of Unlawful Contact with a Minor.

      Appellant filed a timely notice of appeal and Appellant and the trial

court both complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises three issues:

      1. Whether the trial court erred in ordering [] Appellant to pay
      restitution for a laptop computer which did not represent
      damages to a person or property related to the charge to which
      [Appellant] pled guilty and was sentenced?

      2. Whether the trial court erred in ordering [] Appellant to pay
      restitution for a laptop computer purchased by the victim’s
      mother when the computer was not damaged and the victim’s
      mother did not demand the return of the computer from the
      police after it had been analyzed?

      3. Whether the trial court erred in directing [] Appellant to pay
      restitution for antivirus software and for an extended
      maintenance plan for a laptop computer which the victim’s


irrelevant to our disposition, we need not discuss them in further detail.
See Commonwealth v. Zrncic, No. 420 MDA 2014, unpublished
memorandum at 12-16 (Pa. Super. filed January 29, 2015) (holding that the
original sentence of restitution, set without a specific amount in anticipation
of a later hearing, was illegal); Commonwealth v. Zrncic, 131 A.3d 1008
(Pa. Super. 2016) (holding that Appellant was entitled to counsel at his
restitution hearing on remand).
2
  Appellant does not dispute the sum owed to the Victims Compensation
Assistance Program which includes, inter alia, counseling for the victim.



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J. S26023/17


      mother purchased as a replacement for one turned over to the
      police during the course of the investigation?

Appellant’s Brief at 4.

      Each of Appellant’s three issues challenges the imposition of restitution

as part of Appellant’s sentence. An issue regarding the award of restitution

presents a pure question of law, subject to plenary and de novo review.

Commonwealth v. Brown, 956 A.2d 992, 994 (Pa. Super. 2008) (en

banc).

      Appellant argues that since the laptop only contained evidence

relevant to the charge of Unlawful Contact with a Minor, and the

Commonwealth nolle prossed this charge when Appellant pled guilty to

Aggravated Indecent Assault, there is no direct nexus between the charge to

which he pled guilty and the restitution order. Therefore, Appellant avers,

the trial court had no authority to include the replacement cost of the laptop

in the restitution order.

      Our Supreme Court has held that “restitution is a creature of statute

and, without express legislative direction, a court is powerless to direct a

defendant to make restitution as part of a sentence.” Commonwealth v.

Harner, 617 A.2d 702, 704 (Pa. 1992) (citation omitted). The authority to

impose   restitution   comes   from   Section   1106   of   the   Crimes   Code.

Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008) (en

banc).




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      Section 1106 provides that “[u]pon conviction for any crime wherein

property has been stolen, converted, or otherwise unlawfully obtained, or its

value substantially decreased as a direct result of the crime, or 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) (emphasis added).

This section “applies only for those crimes to property or person where there

has been a loss that flows from the conduct which forms the basis of the

crime for which a defendant is held criminally accountable.”    Barger, 956

A.2d at 465 (quoting Harner, 617 A.2d at 706).

      In the instant case, police seized the laptop in order to investigate

whether Appellant committed the offense of Unlawful Contact with a Minor, a

charge that the Commonwealth later dismissed.       It is undisputed that the

laptop did not contain any evidence of Aggravated Indecent Assault, the

crime to which Appellant pled guilty. The question, then, is whether the trial

court may properly impose restitution for the laptop where the loss claimed

flows from crimes other than the crime to which Appellant pled guilty.

      This Court previously addressed this specific question in Barger,

holding that any restitution ordered must flow from only those crimes for

which a defendant is convicted, and not any underlying, unproven, conduct.

In Barger, the police charged the appellant with Rape, Statutory Sexual

Assault, Sexual Assault, Indecent Assault, Corruption of Minors, Terroristic



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Threats, and Harassment.     Barger, 956 A.2d at 459.       A jury found the

appellant not guilty of all felony and misdemeanor charges; the trial court,

however, convicted the appellant of Harassment. Barger, at 460. The trial

court sentenced the appellant, in part, to restitution in the amount of

$600.00 to cover the cost of replacing a couch on which the victim claimed

the appellant had raped her. Id. at 460.

      Upon review of the record, this Court found that Section 1106 did not

authorize a sentence directing the appellant to pay restitution for the couch

because there was not a direct nexus between the loss of the couch and the

charge for which the trial court convicted the appellant. Id. at 465.

      The trial court convicted [the appellant] of the offense of
      harassment for slapping [the victim]. [The victim] testified at
      trial that the couch was replaced because “[that was] where I
      was raped and we didn't want that in my house.” [citation
      omitted] Even assuming that there was a loss of property within
      the meaning of Section 1106, there was no direct nexus
      between the crime for which [the appellant] was
      convicted and the loss of the couch, as Section 1106
      requires.

Id. (emphasis added). None of the evidence at trial supported a conclusion

that the appellant slapped the victim on the couch. Id. at 465. Thus, we

found that the loss of the couch did not flow from the behavior for which the

appellant was held criminally accountable, and “[a]ccordingly, Section 1106

provided no authority to the trial court to include restitution for the couch.”

Id.




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        In the instant case, the trial court found that “the laptop contained

direct evidence of [Appellant’s] complicity in the charge of [U]nlawful

[C]ontact with [a] [M]inor, which is why it was seized.” Trial Court Opinion

at 3.    While the trial court acknowledges that the Commonwealth nolle

prossed the charge of    Unlawful Contact with a Minor, the trial court argues

that Appellant has “already benefitted greatly from his plea bargain” and

“should not now benefit a second time by avoiding paying restitution for his

actions[.]” Id.

        However much we may sympathize with this position, the legislature

does not authorize a trial court to impose restitution based only on the trial

court’s sympathies for the victim.    Rather, Section 1106 requires a “direct

nexus” between the loss claimed and the crime “for which Appellant was

convicted[.]” Barger, 956 A.2d at 465.

        Nor are we persuaded by the trial court’s conclusion that a “direct

causal connection” exists between the loss of the laptop and the charge of

Aggravated Indecent Assault because “[Appellant] was initially charged with

[U]nlawful [C]ontact with a [M]inor, and but for his plea agreement he

would still have been faced with that charge[.]”      Trial Court Opinion at 3.

Being “faced with [a] charge” is insufficient to justify an award of restitution,

and the trial court may not award restitution based on its conjecture that a

jury would have found Appellant guilty of the charge had the case gone to

trial. Whatever may have happened in the instant case in the absence of a



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plea agreement, Appellant was not convicted of Unlawful Contact with a

Minor.

     We, therefore, vacate the portion of the Restitution Order awarding

$1,038.77 to the victim’s mother.

     Restitution Order vacated in part.    All other aspects of Judgment of

Sentence affirmed. Jurisdiction relinquished.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2017




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