Commonwealth v. McCabe

230 A.3d 1199

COMMONWEALTH of Pennsylvania

v.Joseph MCCABE, Appellant

No. 48 EDA 2019

Superior Court of Pennsylvania.

Argued January 7, 2020

Filed March 27, 2020

Katherine Elizabeth Ernst, Public Defender, Norristown, for appellant.

Stanley Joseph Konoval, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.^*

OPINION BY MURRAY, J.:

In a case of first impression, we address whether Veterans Court is controlled by Chapter 3 of the Rules of Criminal Procedure (Chapter 3), and if not, whether the trial court's failure to conduct an ability to pay hearing violated Appellant's right to due process and equal protection under the United States Constitution. After careful review, and under existing legal authority, we conclude that Veterans Court is not governed by Chapter 3. Likewise, the trial court did not err in failing to conduct an ability to pay hearing prior to imposing restitution. Accordingly, we affirm.

The trial court summarized the relevant background as follows:

[Appellant] was arrested on April 15, 2016 and charged with Theft By Unlawful Taking and Receiving Stolen Property for stealing a tackle box containing various pieces of precious metals, including gold coins from an acquaintance. On April 24, 2017, before the Honorable Todd D. Eisenberg, [Appellant] entered an open guilty plea to the Theft By Unlawful Taking charge, under 18 Pa. C.S. § 3921(a), as a condition of enrolling in the Montgomery County Veterans’ Treatment Court Program.

Judge Eisenberg held a restitution hearing on August 14, 2017, at which time the victim, Dr. Thomas V. Mohn, D.D.S., testified as to the contents and value of the coins in his stolen tackle box. Following that hearing, Judge Eisenberg entered an Order on January 2, 2018 ordering [Appellant] to pay restitution in the amount of $34,857.24, as a condition of his sentence. [Appellant] has been paying the monthly restitution amount since the order was entered. NT, 12/3/18, p. 15.

[Appellant] successfully completed the Veterans’ Treatment Court Program under the supervision of the Honorable Cheryl L. Austin, who subsequently rendered [Appellant's] sentence on December 3, 2018. At that time [Appellant] was sentenced to a period of two years supervision with the Montgomery County Adult Probation Department. It was further explained to [Appellant] that although his probation period ends within two years, the restitution order stays in effect until it is paid in full. NT, 12/3/18, p. 22. Judge Austin did not make the previously Ordered restitution part of [Appellant's] probation.

Trial Court Opinion, 3/11/19, at 1-2 (footnotes omitted).

On December 12, 2018, Appellant filed a post-sentence motion for reconsideration of sentence which the trial court denied on December 14, 2018. Appellant timely appealed. Both the trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Appellant presents the following three issues (reordered for ease of discussion):

1. Since Veterans Court is controlled by Chapter 3 of the Rules of Criminal Procedure, was it an error of law when the trial court instead acted pursuant to a Veteran's Court Manual that is not in compliance with Chapter 3 of the Rules of Criminal Procedure, ordered restitution pursuant to 18 Pa.C.S. § 1106(a) which is not permitted when ordering restitution pursuant to Chapter 3 of the Rules of Criminal Procedure, and thereafter failed to dismiss all charges against [Appellant] based upon that illegal restitution award?

2. Regardless of whether Chapter 3 of the Rules of Criminal Procedure applies to Veterans Court, was [Appellant] impermissibly denied a dismissal of charges based on his inability to pay full restitution, notwithstanding his successful completion of Veterans Court, in violation of his right to Due Process and Equal Protection under the United States Constitution?

3. Conversely, if Veterans Court is not controlled by Chapter 3 of the Rules of Criminal Procedure, was the Court's refusal to dismiss the charges against [Appellant] in error when that refusal was based upon an illegal order of restitution entered prior to sentencing with no statutory authority for such a restitution order?

Appellant's Brief at 2-3.

In each of his issues, Appellant challenges the restitution component of his sentence. "[A]n order of restitution must be based upon statutory authority." In re M.W. , 555 Pa. 505, 725 A.2d 729, 731–32 (1999). Where an appellant's challenge is directed to the trial court's authority to impose restitution, it implicates the legality of the sentence. Id. at 731 n. 4. "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Stevenson , 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc ) (citation omitted).

"Moreover, challenges to an illegal sentence can never be waived and may be reviewed sua sponte by this Court." Commonwealth v. Randal , 837 A.2d 1211, 1214 (Pa. Super. 2003) (en banc ) (citation and internal quotation marks omitted). 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. Dixon , 161 A.3d 949, 951 (Pa. Super. 2017) (citation omitted).

When interpreting a sentencing statute, we are mindful that:

‘[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.’ 1 Pa.C.S. § 1921(a). The plain language of the statute is generally the best indicator of legislative intent, and the words of a statute ‘shall be construed according to rules of grammar and according to their common and approved usage. ...’ 1 Pa.C.S. § 1903(a). We generally will look beyond the plain language of the statute only when words are unclear or ambiguous, or the plain meaning would lead to ‘a result that is absurd, impossible of execution or unreasonable.’ 1 Pa.C.S. § 1922(1) ; see also Mercury Trucking, Inc. v. Pa. Pub. Util. Comm'n , 618 Pa. 175, 55 A.3d 1056, 1058 (2012).

Commonwealth v. Hall , 622 Pa. 396, 80 A.3d 1204, 1211 (2013).

More than 40 years ago, this Court recognized the rising popularity of diversionary courts, stating:

These various programs differ in terms of their breadth and their ambition. While a majority of them are comprehensive in scope, others confine their attention to individuals suspected of committing particular crimes. In short, (diversion) programs share a common background, but have assumed no uniform structure. Nevertheless, the success of these programs has encouraged more and more state and local authorities to initiate and develop ... programs of their own.

Commonwealth v. Kindness , 247 Pa.Super. 99, 371 A.2d 1346, 1354 (1977) (concurrence in part by Spaeth, J.) (quoting State v. Leonardis , 71 N.J. 85, 95, 363 A.2d 321, 326 (1976) ). In Pennsylvania, specifically, programs known as "Veterans Court"¹ or "problem solving courts" are being implemented at the county level, namely through an accreditation program approved by our Supreme Court on August 1, 2011, and revised May 7, 2015.² Lackawanna County established Pennsylvania's first Veterans Treatment Court in October 2009, and Montgomery County established its VTC in April 2011.

In Montgomery County, Veterans Treatment Court is designed to

enhance public safety and reduce recidivism of criminal defendants who are veterans by connecting them with VA benefits, treatment services and supports and to find appropriate dispositions to their criminal charges by considering the defendant's treatment needs and the seriousness of the offense.

* * *

When the defendant is formally accepted into Veterans Treatment Court, the defendant must enter a plea to certain agreed-upon charges . Thereafter the defendant will proceed through the three phases of engagement identified in the Terms of Participation section therein.

Sentencing may be deferred pending completion of the Veterans Treatment Court program. Upon successful completion of the Veterans Treatment Court program, the defendant's charges may be reduced or dropped all together .

Montgomery County Veterans Treatment Court Policy and Procedure Manual (VTC Manual), at 1-2 (emphasis in original).³

VTC is not unlike the pretrial diversionary program known as Accelerated Rehabilitative Disposition (ARD) that is available for offenders of Pennsylvania's drinking and driving laws. The Pennsylvania Supreme Court created ARD in 1972 pursuant to its authority to supervise the lower courts; ARD was designed to resolve cases "by programs and treatments rather than by punishment." Commonwealth v. Armstrong , 495 Pa. 506, 434 A.2d 1205, 1208 (1981).

These rules, which appear at [Chapter 3], also provide that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete the ARD successfully, he may be prosecuted for the offense with which he was charged. The district attorney's utilization of ARD is optional under the rules.

Commonwealth v. Lutz , 508 Pa. 297, 495 A.2d 928, 931 (1985). In subsequent decisions, this Court explained that admission into an ARD program "places the criminal proceedings in abeyance," so that a defendant may pursue rehabilitation "without the necessity of trial and conviction," and successful completion of ARD "is not equivalent to a conviction under any circumstance." Commonwealth v. Brown , 449 Pa.Super. 346, 673 A.2d 975, 979 (1996) ; accord Commonwealth v. Hoover , 16 A.3d 1148, 1149-50 (Pa. Super. 2011).

Here, following Appellant's guilty plea to theft by unlawful taking, the trial court permitted Appellant to enter the Veterans Treatment Court program, and deferred sentencing to...