Commonwealth v. Stradley

50 A.3d 769

2012 PA Super 162

COMMONWEALTH of Pennsylvania, Appellee

v.Fred A. STRADLEY, Appellant.

Superior Court of Pennsylvania.

Submitted April 2, 2012.

Filed Aug. 13, 2012.

Arthur D. Agnellino, Sayre, for appellant.

Daniel J. Barrett, Assistant District Attorney, Towanda, for appellee.

BEFORE: STEVENS, P.J., BOWES, and STRASSBURGER ^*, JJ.

OPINION BY STRASSBURGER, J.:

On appeal, Fred A. Stradley (Appellant) challenges the propriety of the sentencing court's decision to award restitution without deducting the amount paid to the victim by his insurer. We affirm in part, vacate in part, and remand for entry of a restitution award payable to Appellant's insurer, Allstate Insurance Company (“Allstate”) in the amount of $7,900.00

On December 21, 2009, Appellant entered a guilty plea to driving under the influence of alcohol (DUI) (Tier III, second offense, highest rate of alcohol),¹ which arose from Appellant's involvement in a two vehicle accident, on August 23, 2009. On February 16, 2010, Appellant was sentenced to 120 days to 18 months' imprisonment and directed to pay a $1,500.00 fine. Appellant additionally was ordered to pay $7,900.00 in restitution, for property damage incurred in the accident. No post-sentence motions were filed. Appellant also did not file a direct appeal.

On April 12, 2011, Appellant filed a “Combined Motion to Vacate Restitution Order and Declare Defendant in Compliance with [75 Pa.C.S. § 1550(b)(1)(i) (pertaining to judicial review of driver's license suspensions or revocations) ].” Attached as exhibits to the motion were a letter from Allstate, and supporting documentation, advising that it had satisfied payment for the damages sustained by Regina Porter (the victim), the driver of the other vehicle, in the form of three checks in the amount of $7,681.05 (issued 9/9/2009 for property damage), $375.76 (issued 9/11/2009 for loss of services—rental car), and $217.95 (issued 9/26/2009 for property damage). The trial court dismissed Appellant's motion, reasoning that it was an untimely motion to modify sentence. See Order dated 6/21/2011. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents for our consideration the following issues:

1. Whether the trial court erred in finding Appellant's motion to vacate restitution untimely?

2. Whether the trial court erred in not allowing the restitution portion of the sentence to be vacated because Appellant's insurance company had already paid the victim?

Appellant's Brief at I (paraphrased).²

Initially, we note that when a defendant enters a guilty plea, he or she waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed. Commonwealth v. Boyd, 835 A.2d 812, 819 (Pa.Super.2003). Appellant's questions, regarding the restitution portion of his sentence, concern not only the jurisdiction of the trial court to review the claim, but also concern the trial court's original authority to impose it. Essentially, Appellant maintains that he should not be required to pay restitution for amounts already paid on his behalf, and that, as such, the amount of the restitution award should be vacated due to full payment of the actual loss already having been made by his insurer to the victim.

In the context of criminal proceedings, an order of “restitution is not simply an award of damages, but, rather, a sentence.” Commonwealth v. C.L., 963 A.2d 489, 494 (Pa.Super.2008). An appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.Super.2004), appeal denied,583 Pa. 661, 875 A.2d 1074 (2005). “The determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.” Commonwealth v. Hughes, 986 A.2d 159, 160 (Pa.Super.2009).

Commonwealth v. Atanasio, 997 A.2d 1181, 1182–83 (Pa.Super.2010). Thus, because Appellant's underlying claim on appeal challenges the legality of his sentence, its review is not abrogated by the entry of his guilty plea.

However, before reaching the merits of this issue, we first must determine whether the trial court had jurisdiction to address Appellant's motion to vacate restitution, which was filed approximately fourteen months after judgment of sentence was entered.

Section 1106 of the Crimes Code, which governs restitution for injuries sustained to person or property, provides in relevant part:

(3) The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, alter, or amend any order of restitution made pursuant to paragraph (2), provided, however that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.

18 Pa.C.S. § 1106(c)(3). This provision has been interpreted by our Court to permit a defendant to seek a modification or amendment of the restitution order at any time directly from the trial court. See Commonwealth v. Mitsdarfer, 837 A.2d 1203 (Pa.Super.2003) (holding that proper remedy for defendant requesting a reduction in the amount of restitution, entered following no contest plea to unauthorized use of an automobile, eleven months after judgment of sentence was entered, was through trial court, pursuant to 18 Pa.C.S. § 1106, and not PCRA; since statute afforded trial court authority to amend or alter restitution order at any time, defendant was not time-barred from filing an appropriate motion with the trial court). Accordingly, we agree with Appellant that the trial court erred in finding Appellant's motion to vacate restitution waived on the ground of untimeliness. Given this determination, we review Appellant's issue on its merits.

Appellant argues that the restitution order should be vacated because the victim has been made whole, that payments emanating from his insurer are equivalent to payments made directly by him, and that his insurer is not a victim, under 18 Pa.C.S. § 1106, but rather is a party obligated by contract to insure Appellant. Appellant's Brief at 5–7. He stresses that his insurer is not seeking reimbursement, as the insurer has returned to him disbursements received from Bradford County Collections Department as subrogee of the victim. ³

We conclude that under the applicable statutory language, the sentencing court had no discretion and was required to award Allstate restitution, upon determining that the victim had been fully compensated by Allstate for damages. Section 1106, restitution for injuries to person or property, of the Crimes Code provides:

(a) General rule.—Upon 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. Sub-section (c)(1)(i) of Section 1106 pertains to mandatory restitution and states in pertinent part that the court “shall order full restitution ... so as to provide the victim with the fullest compensation for the loss,” and that the court “shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.” 18 Pa.C.S. § 1106(c)(1)(i) (emphasis added).

Thus, in no uncertain terms, the statutory language requires the sentencing court to order restitution so as to provide the victim with full compensation for his or her actual loss and that such an award is not to be reduced by any amount the victim received from an insurer. Rather, restitution for amounts paid by an insurer must be awarded to that insurer. The argument that an insurer cannot be considered a victim is clearly refuted by the definition of “victim” contained within the statute. The term “Victim” “includes ... any insurance company that has compensated the victim for loss under an insurance contract.” 18 Pa.C.S. § 1106(h). Hence, it is clear that the restitution award entered at the sentencing hearing cannot stand as stated.

Under the statutory language, it is irrelevant that the insurance company is not seeking the award. There is no discretion accorded the court to make the...