Com. v. Opperman

• Decision Date: 20 July 2001
• Citation: 780 A.2d 714
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James Q. OPPERMAN, Appellant.
• Court: Pennsylvania Superior Court

780 A.2d 714

COMMONWEALTH of Pennsylvania, Appellee, v. James Q. OPPERMAN, Appellant.

Superior Court of Pennsylvania.

Submitted June 11, 2001.

Filed July 20, 2001.

Terri M. Schultz, Butler, for appellant.

David A. Hepting, Asst. Dist. Atty., Butler, for Commonwealth, appellee.

Leo M. Stepanian, Butler, for State Farm Insurance Company, appellee.

Before: JOYCE, OLSZEWSKI and POPOVICH, JJ.

JOYCE, J.

¶ 1 On November 3, 1999, Appellant pled guilty to Driving Under the Influence¹ (DUI) and Homicide by Vehicle While Driving Under the Influence.² On January 31, 2000 sentence was imposed whereby Appellant was ordered to serve a period of incarceration of 3-6 years for the Homicide by Vehicle While DUI and 48-96 hours for the DUI. On February 1, 2000, the trial court, sua sponte, amended the sentence to reflect that each count was to run consecutively. On February 4, 2000, the trial court entered an order scheduling a restitution hearing, which was ultimately held on July 19, 2000. As a result of the hearing, the trial court ordered that Appellant pay restitution to the following entities: $6,649.13 to the estate of Brian James Demarest, $12,788.89 to the Crime Victims Compensation Fund, and $44,500.00 to State Farm Insurance Company.³ This order was entered on September 10, 2000. On October 6, 2000, Appellant filed a notice of appeal and complied with the court's directive to file a concise statement of matters complained of on appeal.

¶ 2 Appellant presents two issues for our consideration: 1) whether the amended sentence order dated February 1, 2000 violated the merger doctrine and constitutes an illegal sentence in that it imposes a sentence for Driving Under the Influence consecutive to a sentence for Homicide by Vehicle While Driving Under the Influence; and 2) whether the trial court imposed an illegal sentence when it ordered restitution to an insurance company in a criminal case where said amounts included damages for "pain and suffering"? Appellant's Brief, at 2. ¶ 3 In turning to the merger issue, both parties as well as the trial court agree that it was an error that the sentences were imposed consecutively and they should have merged. Nonetheless, in the trial court opinion, the court raises a jurisdiction question since the appeal was taken from the restitution hearing as opposed to thirty days following the judgment of sentence. See Pa.R.A.P. 903. However, "the illegality of a sentence is not a waivable matter and may be considered by the appellate courts of the Commonwealth sua sponte." Commonwealth v. Vasquez, 715 A.2d 468, 471 (Pa.Super.1998) citing Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289 (1983). Thus, we have jurisdiction to address this issue. We agree with the parties and the trial court that Appellant's sentence for the DUI should have merged with the sentence for Homicide by Vehicle While DUI charge. See Commonwealth v. Neupert, 454 Pa.Super. 62, 684 A.2d 627 (1996) (the law is clear that Homicide by Vehicle/DUI and DUI merge for sentencing). Since the sentences were imposed consecutively, the sentence is illegal. Thus, we vacate Appellant's DUI sentence.

¶ 4 Appellant's second issue questions the legality of the imposition of the restitution order. In order to evaluate this issue, we need to reiterate the genesis of the restitution claim made by State Farm Mutual Automobile Insurance Company (hereinafter "State Farm"). On September 28, 1998, prior to Appellants' tender of a guilty plea, the parents of the victim entered into a Release and Trust Agreement with State Farm wherein State Farm would pay to the Estate of the victim the uninsured limits of three separate automobile insurance policies held by the victim's mother. Pursuant to the release, the payment of $45,000.00 constituted full and final settlement and discharge of all the claims of the uninsured motorist converge. The court order directed State Farm to disburse $44,500.00 of the $45,000.00 as follows: $3,700.00 to Joseph Kubit as attorney fees from the Wrongful Death action proceeds; $3,700.00 to Michael D. Gallagher, Esquire as attorney fees from the Wrongful Death action proceeds; $14,850.00 to James W. Demarest, under the Wrongful Death action, to be distributed in accordance with the provision of the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. § 8302[sic]⁴; $7,416.00 to Murrin, Taylor and Flach as attorney fees to be paid from the Wrongful Death action proceeds; and $14,834.00 to Rita Demarest, under the Wrongful Death action, to be distributed in accordance with the provisions of the Pennsylvania Wrongful Death Act, 42 Pa.C.S.A. § 8302[sic]. The remaining $500.00 was to be disbursed to the Estate of Brian James Demarest, Deceased, under the survival action pursuant to 42 Pa.C.S.A. § 8301[sic].⁵ Trial Court Order and Opinion, 9/8/00, at 2-3.

¶ 5 Subsequent to Appellant's guilty plea, State Farm sought restitution to compensate it for the amount it paid pursuant to the wrongful death and survival actions, alleging that they are one of Appellant's victims. State Farm relied on 18 Pa.C.S.A. § 1106(h), which defines victim to include "any insurance company that has compensated the victim for loss under an insurance contract." Appellant argues that the proceeds by State Farm were direct payments to third parties, not the victim, pursuant to three separate insurance policies held by the victim's mother. Thus, Appellant maintains it was an error for the trial court to order him to pay restitution to State Farm.

¶ 6 Whether a sentencing court's inclusion of restitution was appropriately ordered is generally considered a challenge to the legality of the sentence. Commonwealth v. Colon, 708 A.2d 1279 (Pa.Super.1998).

The primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim's personal injury and that it is his responsibility to repair the injury as far as possible. The imposition of restitution is within the sound discretion of the sentencing court and must be supported by the record.

Commonwealth v. Figueroa, 456 Pa.Super. 620, 691 A.2d 487 (1997) (internal citations omitted).

¶ 7 A trial court's authority to order restitution is vested in two separate statutory provisions. The first is contained in the Sentencing Code, 42 Pa.C.S.A. § 9721, which provides "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 defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as the Administrative Code of 1929."⁶ The propriety of ordering restitution is further delineated by 18 Pa.C.S.A. § 1106, which provides:

(a) General rule.—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 proscribed therefore.

18 Pa.C.S.A. § 1106(a). Furthermore, victim is defined under this section to include the definition contained in The Administrative Code of 1929, supra.⁷ The term includes any insurance company that has compensated the victim for loss under an insurance contract. 18 Pa.C.S.A. § 1106(h). Thus, the issue presented before us is whether an insurance company constitutes a victim when it has paid proceeds pursuant to an insurance contract to the parents of a victim who is deceased. The parties have not cited nor have we found any case law to provide us with guidance. Thus, it is an issue of first impression.

¶ 8 As our decision is driven by the definition of a victim, we are compelled to discuss the application of The Administrative Code, supra as both 42 Pa.C.S.A. § 9721(c) and 18 Pa.C.S.A. § 1106(h) reference it. As we have previously indicated, the references to The Administrative Code were accompanied by footnotes, which refer the reader to 71 P.S. § 180-9.1. This section, which contains The Administrative Code § 479.1, defines victim as "a person against whom a crime is being or has been perpetrated or attempted." However, this section was repealed on November 24, 1998, effective immediately. 1998, Nov. 24, P.L. 882, No. 111, § 5103, imd. effective. While we are cognizant of the fact that the subject matter of 71 P.S. 180-9.0 through 9.11 is now contained in the Crime Victims Act, 18 P.S. § 11.101 et seq., this statute does not formally adopt, subsume or recodify the subject matter. It is also persuasive that 18 Pa.C.S.A. § 1106 was amended on December 3, 1998 subsequent to the repeal of 71 P.S. 180-9.1 and yet continued to incorporate the definition of victim as found in the Administrative Code of 1929. It would appear that since 18 Pa.C.S.A. § 1106 was amended after the effective date of the Crimes Victims Act and the repeal of the 71 P.S. § 180-9-9.11, the legislature had the opportunity to include the definition of victim as contained in the Crime Victims Act, if they so chose. Having not done so, we are constrained to find that the definition of victim as provided for in The Administrative Code of 1929 no longer exists as the most recent statute incorporating that definition has been abolished. As a result, our review of this case is limited to the definition of victim as it set forth in the Crimes Code and the Sentencing Code.

¶ 9 The October 5, 1998 civil order directing the disbursement of the insurance policies was premised on two theories of law, the Wrongful Death Act, 42 Pa.C.S.A. § 8301, and the Survival Act, 42 Pa.C.S.A. § 8302. A wrongful death action allows a spouse, child or parent of a deceased to bring an action to recover damages for the death of an individual caused by the wrongful act or negligence of another. 42 Pa.C.S.A. § 8301.

The purpose of the Wrongful Death Act is to compensate certain enumerated relatives of the deceased for pecuniary loss occasioned to them through the deprivation of the part of the

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