Commonwealth v. Holmes, 305 MDA 2014

• Decision Date: 04 January 2017
• Docket Number: No. 305 MDA 2014,305 MDA 2014
• Citation: 155 A.3d 69
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Norma Jean HOLMES, Appellant
• Court: Pennsylvania Superior Court

155 A.3d 69

COMMONWEALTH of Pennsylvania, Appellee

v.Norma Jean HOLMES, Appellant

No. 305 MDA 2014

Superior Court of Pennsylvania.

Argued February 23, 2016

Filed January 4, 2017

Tracy J. Ross, Waynesboro, for appellant.

Travis L. Kendall, District Attorney, McConnellsburg, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, LAZARUS, MUNDY, OLSON, OTT, and STABILE, JJ.

PER CURIAM ORDER

It appearing that the en banc Superior Court of Pennsylvania is divided evenly 4–4 on the issue of whether restitution was properly ordered by the trial court under Section 1106(a) of the Crimes Code, 18 Pa.C.S.A. § 1106(a), the order of the trial court dated January 21, 2014, ordering restitution as a direct result of the crime for which Appellant was sentenced, is deemed AFFIRMED .

To the extent the trial court's January 21, 2014 order also imposed restitution upon the Appellant as a condition of probation under Section 9754(c)(8) of the Sentencing Code, 42 Pa.C.S.A. § 9754(c)(8), the trial court's order of restitution as a condition of probation is hereby VACATED , as the en banc Superior Court of Pennsylvania is unanimous in the result that the order of conditional probation was improper.

Judge Mundy did not participate in the consideration or decision of this case.

OPINION IN SUPPORT OF AFFIRMANCE BY STABILE, J.:

Appellant Norma Jean Holmes appeals from the order entered January 21, 2014 in the Court of Common Pleas of the 39th Judicial District, Fulton County Branch ("trial court"), affirming a prior order denying Appellant's request to modify the amount of restitution imposed at sentencing. Appellant entered a plea of nolo contendere to one count of recklessly endangering another person ("REAP") in connection with the death of the victim, Bryan S. Nave. The trial court ordered Appellant to pay restitution to the victim's parents, Joseph and Laura Nave, in the amount of $12,794.50, for the victim's funeral expenses. Upon review, we affirm in part and vacate in part.

The facts and procedural history underlying this case are not in dispute. In the early morning hours of November 20, 2011, Appellant and the victim left the Log Cabin Bar in Hancock, Maryland. The victim was driving Appellant's vehicle, with her permission. Both the victim and Appellant had been drinking heavily that night. They were returning home to Greencastle, Pennsylvania, when the victim lost control of the vehicle on State Route 70, westbound. The victim was killed in the single-vehicle accident; Appellant, who was asleep in the passenger seat, survived the crash.

Appellant was charged with one count of REAP¹ and two summary counts of Permitting Violation of Title.² On October 9, 2012, Appellant pled nolo contendere to the charge of REAP and the Commonwealth nolle prossed the remaining charges. Appellant appeared for sentencing on November 5, 2012, before the Honorable Douglas W. Herman. At sentencing, defense counsel remarked that there was no agreement as to restitution. N.T., Hearing, 11/5/12, at 5. The trial court stated, "[b]ut we will put the amounts in the restitution order, and that's the starting point for it and then, Mr. Keller, I think the procedure is for you to request a hearing at some point." Id. The trial court imposed a sentence of two years' probation, plus costs and restitution:

You're placed on probation for a period of 24 months, pay the court costs, pay $200 to the Fulton County Law Library. You'll undergo a drug and alcohol assessment and following any recommendations for treatment, 50 hours of community service. You may not consume alcohol or any controlled substance and you'll [be] subject to random testing to insure compliance with that condition. You'll pay the restitution as determined by the district attorney and, of course, there's an issue with that that the courts with [sic] deal with at some point, and finally you have a supervision fee of $25 per month to defray the cost of the supervision that the court has ordered in this case.

Id. at 9–10.

The November 6, 2012 sentencing order, under "Financials," provided that Appellant shall pay all court costs, a $25 per month supervision fee, and restitution as determined by the district attorney in the amount of $12,794.50³ to the victim's parents, Joseph and Laura Nave. (Docket # 21.) On July 31, 2013, Appellant filed a "motion for restitution hearing," arguing that restitution was improper where the victim's death was caused by his own criminal conduct of driving under the influence of alcohol. The Commonwealth filed an answer on August 14, 2013, responding that Appellant's recklessness in allowing the victim to drive her car caused the victim's death, and that the victim's parents, as his personal representatives, stand in his shoes as victims pursuant to 18 Pa.C.S.A. § 1106(h).⁴ (Docket # 19.)

On September 16, 2013, the parties filed a "stipulation of facts in lieu of hearing," which set forth the operative facts as follows:

1. [Appellant] Norma Jean Holmes and Bryan S. Nave, sui juris adults, agreed that he would pick her up at her home in Greencastle, Pennsylvania on November 19, 2011 to go together to the Log Cabin in Hancock, Maryland.

2. Mr. Nave drove his vehicle to Greencastle, where it became inoperable and [Appellant] allowed him thereafter to drive her car. Both Mr. Nave and [Appellant] consumed alcoholic beverages on the night of November 19, 2011/early morning of November 20, 2011. The attached handwritten statement of [Appellant] on Pennsylvania State Police Victim/Witness Statement Form, dated 12/21/11 and the attached two page handwritten statement of [Appellant] on Pennsylvania State Police Noncustodial Written Statement Form dated 12/21/11 may be considered as her testimony.

3. After they got into her vehicle at the Log Cabin, [Appellant] fell asleep and Mr. Nave apparently drove westbound on SR 70 instead of eastbound which would have taken him in the direction of Greencastle.

4. Mr. Nave crashed the vehicle along the left lane of SR 70 westbound and died as a result of his injuries, while [Appellant] suffered bodily injury which resulted in her transport to and treatment in Conemaugh Hospital in Johnstown, Pennsylvania.

5. The claim for restitution[,] set forth by the Commonwealth at sentencing, is in keeping with the letter by Fulton County Victim Services Coordinator Carolyn Kerlin, which is attached hereto.

"Stipulation of facts in lieu of hearing," 9/16/13 at 1–2; Docket # 17 (reformatted for ease of reading).

Appellant's statements to police, attached to the stipulation of facts, are as follows:

Bryan Nave asked me out. After convincing me (was opposed because of his age) I finally agreed to go with him (Bryan) to the Log Cabin in Hancock, MD. I told Bryan the only stipulation was he (Bryan) had to pick me up at home. Bryan said "no problem!" Bryan arrived approx. 8:10–8:15 [p.m.] on 11–19–11. I had to stop at my local Legion to let a friend know I wouldn't be there that evening, that my plans changed! Bryan and I went to [Greencastle] Legion for one drink. Bryan and I left [the] Legion and went to [the] gas station. Got gas, Bryan wanted liquor for [the] ride to [the] Log Cabin so I directed Bryan to [the] liquor store. Bryan and I left [the] liquor store and headed to [the] Log Cabin. Bryan and I drank, talked, and danced that evening. I was tired so I asked Bryan if Bryan was ready to leave (approx. 1 AM 11–20–11). Bryan said yes. Bryan and I got into my car (Bryan still driving). I layed [sic] my seat back and went to sleep. I woke up after [the] accident. I found my way out of my car, flagged down help. I remember being in and out of [sic]. I briefly remember [the] ride in [the] ambulance. I remember hearing [the] rotors of [the] helicopter and then woke up in [the] hospital when they were cutting my clothes off. I found out that after noon that Bryan didn't make it.

Pennsylvania State Police Victim/Witness Statement Form, 12/21/11 at 1.

Bryan Nave met [Appellant] and went to Greencastle Legion. He had (1) beer believes Budweiser. Bryan drove [Appellant's] car to Sheetz in Greencastle. He then drove the car to [the] liquor store. He bought a pt. of Cpt. Morgan. [Appellant] made Bryan and herself a mixed drink in the car. They then went to the Log Cabin in Hancock. Bryan bought all the drinks that night. He drank approx. 10+ drinks. [Appellant] thinks she drank 6–7 mixed drinks. [Appellant] told Bryan that she don't [sic] drink and drive because she has a CDL [ (Commercial Driver's License) ] and she don't [sic] want to lose them. Bryan drank (3) straight shots of whiskey back to back. [Appellant] related she believes they left [the] bar around 0100 hours due to the time of the accident. [Appellant] related she got into the passenger seat and went to sleep.

Pennsylvania State Police Noncustodial Written Statement, 12/21/11 at 2.

In a letter dated October 26, 2012, Carolyn Kerlin, Victim Services Coordinator, opined that Appellant's actions of permitting the victim to drive her vehicle knowing that he had consumed at least ten drinks caused the victim's death and that Appellant should be required to make restitution to the victim's parents for funeral expenses. However, Ms. Kerlin acknowledged that if a victim's compensation claim were filed, it would likely be viewed as a DUI case for purposes of determining the victim's eligibility for compensation: "If the victim was driving, or the evidence seems to support that he was, then the claim would be denied since he was driving a vehicle while intoxicated, which is against the law and directly caused his death."

By order entered October 29, 2013, the trial court denied Appellant's request to modify the restitution award. (Docket # 14.) The trial court found that restitution was appropriate both as a condition of Appellant's probation under 42 Pa.C.S.A. § 9754(c)(8) of the Sentencing Code, and as part of her sentence under 18 Pa.C.S.A. § 1106(a) of the Crimes Code, which provides for mandatory...