Com. v. Colon

• Decision Date: 03 March 1998
• Citation: 708 A.2d 1279
• Parties: COMMONWEALTH of Pennsylvania v. Marshall G. COLON, Appellant.
• Court: Pennsylvania Superior Court

Page 1279

708 A.2d 1279

COMMONWEALTH of Pennsylvania v. Marshall G. COLON, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 28, 1997.

Filed March 3, 1998.

Jean Arena, Asst. Public Defender, Gettysburg, for appellant.

Michael A. George, Asst. Dist. Atty., Gettysburg, for Com., appellee.

Before FORD ELLIOTT, EAKIN and OLSZEWSKI, JJ.

FORD ELLIOTT, Judge:

On October 2, 1996, appellant entered a plea of nolo contendere to one count of driving under the influence, 75 Pa.C.S.A. § 3731(a)(1), in exchange for which the Commonwealth agreed to a sentence of 23 months of intermediate punishment. The agreement provided for 30 days of partial confinement in the Adams County Prison, followed by 90 days of house arrest, with restitution to be determined by the court at the time of sentencing. (R. at 33-34.)

At sentencing on January 24, 1997, the court relied upon the recently enacted mandatory restitution section of the Sentencing Code to determine that the victim of appellant's drunk driving was entitled to full restitution, including restitution to his insurer, without regard to appellant's ability to pay. (Statement pursuant to Pa.R.App.P.1925, 2/24/97 at 1, citing 42 Pa.C.S.A. § 9721(c).) Appellant challenges the applicability of the mandatory restitution statute to a sentence of intermediate punishment, the trial court's determination that the insurance company was a victim, and the trial court's refusal to consider evidence of appellant's ability to pay restitution. (Appellant's brief at 3.) We affirm.

Challenges to the appropriateness of a sentence of restitution are generally considered challenges to the legality of the sentence. Commonwealth v. Walker, 446 Pa.Super. 43, 55, 666 A.2d 301, 307 (1995), allocatur denied, 545 Pa. 652, 680 A.2d 1161 (1996), citing Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984) (other citations omitted). Appellant's first two claims implicate the legality of the restitution sentence; therefore, we will address them in order.

In his first issue, appellant challenges the applicability of the mandatory restitution statute to a sentence of intermediate punishment. The section of the sentencing statute applicable to intermediate punishment provides in pertinent part:

(b) Conditions generally.--The court may attach any of the following conditions upon the defendant as it deems necessary:

....

(10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount, for the loss or damage caused by the crime.

42 Pa.C.S.A. § 9763(b)(10).

Both the Sentencing Code and the Crimes Code have recently been amended to include mandatory restitution sections. The Sentencing Code now provides:

(c) Mandatory restitution.--In addition to the alternatives set forth in subsection (a) of this section [one of which is intermediate punishment] the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained. For purposes of this subsection, the term 'victim' shall be as defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929.

42 Pa.C.S.A. § 9721(c). The plain language of this section indicates that it applies to sentences of intermediate punishment; therefore, we find no merit to appellant's first challenge to the restitution order. See also 1 Pa.C.S.A. § 1934 ("Except as provided in section 1933 of this title (relating to particular controls general), whenever, in the same statute, several clauses are irreconcilable, the clause last in order of date or position shall prevail."). We turn then to appellant's claim that an insurer is not a victim under the Sentencing Code.

The Administrative Code, incorporated by reference into the mandatory restitution section of the Sentencing Code, defines "victim" as:

(1) A person against whom a crime is being or has been perpetrated or attempted.

(2) A parent or legal guardian of a child so victimized, except when the parent or legal guardian of the child is the alleged offender.

(3) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiance, one of whom is to be identified to receive communication as provided for in this act.

71 P.S. § 180-9.1.

In addition to this definition of "victim," the Legislature has promulgated a second definition in its recent amendments to the Crimes Code. This definition provides 'Victim.' As defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as the Administrative Code of 1929. The term includes the Crime Victim's Compensation Fund if compensation has been paid by the Crime Victim's Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract.

18 Pa.C.S.A. § 1106(h).

As noted supra, appellant was ordered to pay restitution under the Sentencing Code, not the Crimes Code. While the General Assembly did not amend the Sentencing Code to include insurers in its definition of "victim," a recent en banc panel of this court concluded that "the broadened definition of 'victim' to include an insurance company who has suffered a consequent loss applies to both relevant restitution provisions. 18 Pa.C.S.A. § 1106(c) as amended, 42 Pa.C.S.A. § 9721(c) as amended, 71 P.S. 180-9.1." Commonwealth v. Layhue, 455 Pa.Super. 89,, 687 A.2d 382, 384 (1996) (en banc ). As a result, we conclude that in our case, the insurer was a "victim" for purposes of § 9721(c) of the Sentencing Code. We therefore turn to appellant's third issue, regarding the sentencing court's failure to consider evidence of his ability to pay when ordering restitution.

We note first that this issue implicates the discretionary aspects of appellant's sentence. Commonwealth v. Walker, supra at 55, 666 A.2d at 307 ("challenges alleging that a sentence of restitution is excessive under the circumstances [are] challenges to the discretionary aspects of sentencing[ ]"). Appellant has failed to comply with the requirements for raising a challenge to the discretionary aspects of his sentence, pursuant to Pa.R.App.P. 2119(f). Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As a result, this issue would be waived on appeal if the Commonwealth objected. Id. The Commonwealth did not, however, object. Despite this lack of objection, we may still quash the appeal or find the issue waived for non-compliance if we determine that our review of appellant's issue is "significantly hampered by the lack of a concise statement." Commonwealth v. Walker, supra at 52, 666 A.2d at 306. Because we find that our review is not significantly hampered, we must next decide if appellant raises a substantial question.

Appellant claims that his ability to pay was not considered, as required by the Sentencing Code provisions applicable to intermediate punishment. This claim raises a substantial question. Id. at 61, 666 A.2d at 310 ("a substantial question arises when appellant can show 'actions by the sentencing court inconsistent with the sentencing code ...' "), quoting Commonwealth v. McLaughlin, 393 Pa.Super. 277, 290-293, 574 A.2d 610, 617-18 (1990), appeal denied, 527 Pa. 616, 590 A.2d 756 (1991), cert. denied, 502 U.S. 916, 112 S.Ct. 320, 116 L.Ed.2d 261 (1991). As a result, we shall address the issue.

As previously noted, both the Sentencing Code and the Crimes Code have recently been amended to include a mandatory restitution section. The Crimes Code section provides in pertinent part:

(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. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim's Compensation Board or other governmental agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim's Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. 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.A. § 1106(c). Under this section, the trial court clearly would have been required to order appellant to pay full restitution regardless of ability to pay. ¹ Nevertheless, the trial court, in its statement pursuant to Pa.R.App.P.1925, opines that it ordered restitution pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9721(c), set forth supra.

Prior to the 1995 amendments to the Sentencing Code, our supreme court required that a sentencing court consider "what loss or damage has been caused, and what amount of restitution Appellant can afford to pay, and how it should be paid[ ]" when ordering restitution under the Sentencing Code. Commonwealth v. Harner, supra at 23, 617 A.2d at 707 (footnote omitted). The language of § 9763, applicable to intermediate punishment, like the language of § 9754, applicable to probation and at issue in Harner, echoes these concerns. See 42 Pa.C.S.A. § 9763(b)(10), supra; 42 Pa.C.S.A. § 9754(c)(8) (the court may order a defendant "[t]o 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."). As the Harner court stated when discussing restitution as a condition of probation under the Sentencing Code:

Restitution may also be imposed as a condition of probation and, under such circumstances, the courts are traditionally and properly vested with a broader measure of discretion in fashioning conditions of probation appropriate to the circumstances of the individual case. The...