Com. v. Langston
| Decision Date | 17 July 2006 |
| Citation | 904 A.2d 917 |
| Parties | COMMONWEALTH of Pennsylvania v. Jennifer Dawn LANGSTON, Appellant. |
| Court | Pennsylvania Superior Court |
Michael S. Sherman, Wexford, for appellant.
Randa B. Clark, Asst. Dist. Atty., Butler, for Com., appellee.
¶ 1 Appellant, Jennifer Dawn Langston, appeals from the order of May 23, 2005, denying her motion to modify the sentence/restitution and granting the Commonwealth's motions to amend the restitution order. After careful review, we are constrained to vacate.
¶ 2 The underlying facts of this case are tragic but not in dispute. On June 15, 2002, appellant's pick-up truck crossed the center line and struck Glenn Clark's vehicle head-on. Mr. Clark died; his wife, Annette Clark, lapsed into a coma. At the time of the accident, Mrs. Clark was pregnant; she gave birth to a healthy son, Michael, while in a persistent vegetative state. Matthew Phillips and Michelle Phillips were named plenary co-guardians of Michael Clark.
¶ 3 On September 22, 2003, appellant entered into a negotiated guilty plea to homicide by vehicle, recklessly endangering another person ("REAP"), and two summary offenses, reckless driving and driving a vehicle at an unsafe speed. On November 7, 2003, the Honorable George H. Hancher, in accordance with the plea agreement, sentenced appellant to an aggregate term of 30 days to 7 months' imprisonment, followed by 5 years' probation. As part of her sentence, appellant was ordered to pay restitution in the amounts of $250 to Hugh Clark1 and $20,000 to the Crime Victim's Compensation Program. The purpose for the $20,000 restitution order to the Crime Victim's Compensation Fund ("the Fund") was to reimburse the Fund for monies it had paid out to the Phillipses to be held in trust for Michael Clark.
¶ 4 In addition, in accordance with the negotiated plea, several special conditions of probation were imposed. Appellant was ordered to pay $50/month during the entire five-year probationary period into a fund created to benefit Michael Clark; appellant was ordered to carry a picture of the decedent, Glenn Clark, in her wallet; she was ordered to write letters of apology to the Clark family and to the administration, faculty, and students of Mars Area High School, where Glenn Clark had been a wrestling coach; and appellant was ordered to complete 480 hours of community service, eight hours per month during the five-year probationary term.
¶ 5 On November 14, 2003, appellant filed a motion to modify the restitution order, stating that the Phillipses had already received in excess of $300,000 in insurance payments for the minor child, Michael Clark; and therefore, under the set-off provisions of the Crime Victims Act ("CVA"), 18 P.S. § 11.101 et seq., they were not entitled to any payment from the Fund. Appellant also stated that a third-party civil suit was pending, and requested that the court modify her sentence by eliminating the $20,000 restitution provision.
¶ 6 On February 4, 2004, the Commonwealth filed a motion to amend, requesting that the Phillipses be substituted for the Fund as the recipients of the $20,000 restitution. The Commonwealth averred in its motion that the Fund had paid out $20,000 for loss of support to Matthew Phillips, co-guardian of the estate and of the person of Michael Clark; that by letter dated January 14, 200[4], the Office of Victims' Services demanded reimbursement of said funds, due to an insurance settlement in the amount of $400,000; that the victims' damages far exceeded that recovered under the insurance policies; and that, in its letter to the Phillipses, the Office of Victims' Services stated that once it had been reimbursed in full, it would notify the clerk of courts to adjust the records so that the restitution would "revert to you." (Docket No. 76.)
¶ 7 On March 18, 2004, the trial court filed a memorandum and order denying both motions, opining that until the Fund had actually been reimbursed, there was no issue to decide. On April 13, 2004, appellant filed a notice of appeal from the court's order of March 18, 2004, denying her motion to modify the sentence. On June 25, 2004, during the pendency of the appeal, the Commonwealth filed another motion to amend, asserting that the Fund had been reimbursed and the issue was ripe for review. The Commonwealth stated that Matthew Phillips had reimbursed the Fund $17,900, the difference between the $20,000 paid to Phillips by the Fund and $2,100 already paid by appellant to the clerk of courts' office.
¶ 8 The Commonwealth made a motion for remand; and on January 25, 2005, this court granted said motion and remanded to the trial court. On May 23, 2005, the lower court granted the Commonwealth's motion and ordered that appellant make monthly payments to the Butler County Clerk of Courts for distribution to the Phillipses until the sum of $17,900 has been paid. On June 15, 2005, appellant filed a timely notice of appeal. Appellant has complied with the court's order to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b); and the trial court has filed a supplemental memorandum opinion addressing the claims raised therein.
¶ 9 Appellant brings the following issues for this court's review:
1. Whether the trial court erred by awarding restitution to a person (i.e., minor child) who is not a `victim' for restitution purposes as set forth in the Crimes Code and Sentencing Code?
2. Whether the Commonwealth's request to substantively modify the restitution order was untimely made?
3. Whether the trial court erred by failing to apply the applicable factors that must be considered before awarding restitution?
4. Whether the trial court erred by failing to offset the restitution award by monies the minor child received from insurance settlement proceeds and social security benefits?
Appellant's brief at 4.
¶ 10 Because we find appellant's first issue to be dispositive, we need not address her remaining issues. Appellant argues that the trial court erred by awarding restitution to a person who is not considered a "victim" of the crimes involved as defined by the Crimes Code and the Sentencing Code. After studied review, we must agree.
¶ 11 Before considering appellant's argument on its merits, we must first address the Commonwealth's contention that this issue is waived for failure to raise it in appellant's 1925(b) statement. Ordinarily, claims not raised in a court-ordered Rule 1925(b) statement are deemed waived on appeal. See Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005); Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). However, appellant's claim, that the minor child is not a "victim" statutorily entitled to restitution, implicates the legality of the restitution sentence. "Challenges to the appropriateness of a sentence of restitution are generally considered challenges to the legality of the sentence." Commonwealth v. Colon, 708 A.2d 1279, 1280 (Pa.Super.1998) (citations omitted). The legality of a sentence is an issue that cannot be waived. See, e.g., Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super.2001), citing Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.Super.1998). Therefore, we conclude that appellant's challenge to the legality of her restitution sentence is cognizable, despite her failure to raise this issue in her Rule 1925(b) statement. Id., citing Commonwealth v. Smith, 772 A.2d 75, 81 n. 10 (Pa.Super.2001).2
¶ 12 "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. Tareila, 895 A.2d 1266 (Pa.Super.2006), quoting Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa.Super.2004).
¶ 13 Mandatory restitution is statutorily grounded in two provisions, 42 Pa.Con.Stat.Ann. § 9721(c) and 18 Pa.Con.Stat. Ann. § 1106(a).
The Sentencing Code, 42 Pa.Con.Stat.Ann. § 9721(c) provides that `the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.' 42 Pa.C.S.A. § 9721(c). The ordering of restitution is further defined by 18 Pa.Con.Stat.Ann. § 1106(a). `Section § 1106(a) sets forth the general rule that upon conviction for any crime 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 therefore.' 18 Pa.Con.Stat.Ann. § 1106(a); Commonwealth v. Opperman, [780 A.2d 714, 718 (Pa.Super.2001), appeal denied, 568 Pa. 617, 792 A.2d 1253 (2001).]
Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa.Super.2004) (emphasis added).
¶ 14 Pursuant to Section 1106, in the trial court's original sentencing order, it directed restitution be made to the Fund since the Fund had already made payments to Michael Clark through the Phillipses. The trial court supported this award as follows:
At the time of the sentencing hearing on November 7, 2003, this Court was informed that the Crime Victim's Compensation Fund had not been reimbursed yet for the $20,000 award paid out to the victim. In accordance with 18 Pa.C.S.A. § 1106, this Court ordered [appellant] to pay $20,000 in restitution to the Crime Victim's Compensation Fund at claim number 200301051. The Crime Victim's Compensation Fund is considered a victim if compensation has been paid by the Crime Victim's Compensation Fund to the victim. 18 Pa.C.S.A. § 1106(h). It is clear that the Crime Victim's Compensation Fund is an appropriate recipient of mandatory restitution for amounts it has advanced to crime victims in Pennsylvania. The statute indicates the intent of restitution regarding the Crime Victim[']s Compensation Fund is to replenish the compensation fund by the...
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