Commonwealth v. Muhammed

219 A.3d 1207

COMMONWEALTH of Pennsylvania

v.Yahya Asaad MUHAMMED, Appellant

No. 1087 EDA 2018

Superior Court of Pennsylvania.

Argued May 22, 2019

Filed September 30, 2019

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

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.^*

OPINION BY NICHOLS, J.:

Appellant Yahya Asaad Muhammed appeals from the judgment of sentence entered after he pled guilty to criminal trespass.¹ On appeal, Appellant challenges the trial court's restitution award. For the reasons that follow, we vacate and remand for resentencing.

The relevant facts giving rise to this appeal are well known to the parties, and we need not restate them here. Briefly, the trial court summarized the procedural history of this matter as follows:

On March 5, 2018, ... Appellant[, who was represented by counsel,] entered into a negotiated guilty plea to criminal trespass, a felony of the third degree, and the Commonwealth nolle prossed the remaining charges.

In accordance with the plea agreement, the [trial court] sentenced Appellant to 11½ to 23 months in the county correctional facility, to pay court costs, and to pay the restitution amount ordered by the [trial c]ourt joint and several with his co-defendant, Lorna Fretwell.^[2] The [trial court] did not impose a restitution amount at that time.

* * *

On March 12, 2018, the [trial c]ourt held a restitution hearing.^[3] Following the restitution hearing, the [trial c]ourt ordered Appellant to pay restitution joint and several with co-defendant, Lorna Fretwell (criminal docket 4631-2017), to the victim in monthly installments as directed by the Montgomery County Adult Probation and Parole Department totaling $8,825.98.

Trial Ct. Op., 6/12/18 at 2-3.

On March 20, 2018, the trial court docketed Appellant's pro se motion seeking arrest of judgment and withdrawal of his guilty plea. On April 10, 2018, the trial court docketed Appellant's pro se notice of appeal, in which he included a statement of errors complained of on appeal.⁴ The trial court denied Appellant's post-sentence motion on May 22, 2018.⁵ Thereafter, the trial court issued a Pa.R.A.P. 1925(a) opinion asserting that Appellant's claims were meritless. On August 20, 2018, this Court issued an order directing Appellant's trial counsel, Vanessa L. Bellino, Esq., to enter her appearance on Appellant's behalf.

Appellant raises one issue on appeal: "Did the [t]rial [c]ourt err by awarding restitution that is speculative, unsupported by the record, and does not even relate to the crime for which [Appellant] pleaded guilty?" Appellant's Brief at 2. Appellant first argues that "the bulk of the items contained within the restitution order were not lost or damaged as a direct result of the crime for which [Appellant] pleaded guilty." Id. at 15. Second, Appellant asserts that "the restitution order awarded the victim more than the cash equivalent of the property lost due to the crime." Id. at 19. Third, Appellant contends that the order was "speculative and unsupported by the record." Id. at 26.

Our review of Appellant's claims depends on the nature of the issue being raised. It is well settled that a challenge to the legality of a sentence raises a question of law. Commonwealth v. Smith , 956 A.2d 1029, 1033 (Pa. Super. 2008) (en banc ). In reviewing this type of claim, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Childs , 63 A.3d 323, 325 (Pa. Super. 2013). "An illegal sentence must be vacated[.]" Commonwealth v. Ramos , 197 A.3d 766, 769 (Pa. Super. 2018) (citation and quotation marks omitted). Further, we have explained that "a criminal defendant cannot agree to an illegal sentence, so the fact that the illegality was a term of his plea bargain is of no legal significance." Commonwealth v. Rivera , 154 A.3d 370, 381 (Pa. Super. 2017) (en banc ) (citation and quotation marks omitted), appeal denied , 642 Pa. 121, 169 A.3d 1072 (2017). Moreover, "a challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte. " Commonwealth v. Wolfe , 106 A.3d 800, 801 (Pa. Super. 2014) (citation omitted).

In contrast, a defendant does not have an absolute right to pursue a challenge to the discretionary aspects of a sentence. See Commonwealth v. Lamonda , 52 A.3d 365, 371 (Pa. Super. 2012) (en banc ). Rather, before reaching the merits of such claims, we must determine whether (1) the appeal is timely; (2) the defendant preserved his issues; (3) the defendant included a concise statement of reasons for the discretionary sentence claim in his brief; and (4) the sentence is inappropriate under the sentencing code. See Commonwealth v. Corley , 31 A.3d 293, 296 (Pa. Super. 2011) (citation omitted). If a defendant invokes this Court's jurisdiction to review the discretionary aspects of a sentence, we review a sentence for an abuse of discretion. Commonwealth v. Smith , 206 A.3d 551, 567 (Pa. Super. 2019).

Section 1106 of the Crimes Code governs the imposition of restitution as part of a sentence and provides, in relevant part:

§ 1106. Restitution for injuries to person or property

(a) General rule. —Upon conviction for any crime wherein:

(1) property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime; or

(2) 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.

* * *

(c) Mandatory restitution.— (1) The court shall order full restitution:

(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss....

* * *

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim's request for restitution as presented to the district attorney in accordance with paragraph (4) and such other matters as it deems appropriate.

* * *

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

18 Pa.C.S. § 1106.

We have explained that there is a

distinction between claims that challenge the sentencing court's statutory authority to impose restitution, and those which seemingly concede such authority, but challenge the court's exercise of discretion in determining the appropriate amount of restitution. Accordingly, in determining whether a particular claim implicates the legality or discretionary aspects of sentencing, we do not merely look at the manner in which a restitution challenge is phrased; we must instead examine the specific nature of the claim presented to determine whether it challenges the sentencing court's statutory authority to impose restitution, or its discretion in determining the amount of restitution.

Commonwealth v. Weir , 201 A.3d 163, 172 (Pa. Super. 2018) (citation omitted), appeal granted , 14 WAL 2019, 2019 WL 2590591 (Pa. filed June 25, 2019).

In sum, "a challenge to the legality of sentence is presented when the defendant claims that the trial court lacked statutory authority to impose restitution because the Commonwealth failed to establish one or more of the requirements of section 1106(a)." Id. at 172 (citation omitted). "Conversely, where the Commonwealth has established each element of § 1106(a), i.e. , the victim suffered loss to person or property directly caused by the specific crime committed by the defendant, a claim that the restitution order is excessive implicates the discretionary aspects of sentencing." Id. at 174 (citations omitted); see Commonwealth v. Holmes , 155 A.3d 69, 78 (Pa. Super. 2017) (stating that where "statutory authority exists ... the imposition of restitution is vested within the sound discretion of the sentencing judge" (citation omitted)).

Initially, we observe that the trial court accepted Appellant's negotiated plea and imposed sentence on March 5, 2018. See N.T. Guilty Plea Hr'g, 3/5/18, at 13. As part of the sentence, the trial court ordered Appellant to pay court costs plus a restitution amount that would be determined at a future hearing. Id. at 13-14. However, the trial court did not specify a restitution amount or payment method. See id. ; see also Sentencing Order, 3/5/18, at 2.

In Ramos , the defendant entered a nolo contendere plea to criminal mischief. Ramos , 197 A.3d at 768. The trial court sentenced the defendant to pay a fine and court costs, but scheduled a separate restitution hearing for another date. Id. On appeal, this Court explained that the trial court "initially imposed a generalized, open-ended sentence of restitution, which is a matter we can raise sua sponte as an illegal sentence." Id. (citation omitted). The Ramos Court reiterated that Section 1106 "mandates an initial determination of the amount of restitution at sentencing," and concluded that the trial court must impose "some amount and method of restitution at the initial sentencing." Id. at 770 (citations omitted and emphasis in original); see also 18 Pa.C.S. § 1106(a), (c)(2). The Court further explained that

an order entered after the delayed restitution proceeding is not what renders the sentence illegal; it is the court's order at the initial sentencing, postponing the imposition of restitution until a later date, that fails in both respects to meet the criteria of the restitution statute and taints the entire sentence .

Id. (citations omitted and emphasis added).

Here, as in Ramos , the trial court "imposed a generalized, open-ended...