Commonwealth v. Weir, No. 28 WAP 2019
| Decision Date | 01 October 2020 |
| Docket Number | No. 28 WAP 2019 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Christopher Robert WEIR, Appellant |
| Court | Pennsylvania Supreme Court |
Brandon Paul Ging, Esq., Allegheny County Public Defender's Office, for Appellant.
Margaret B. Ivory, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
OPINION
We granted discretionary review to determine whether a challenge to the amount of restitution imposed pursuant to Section 1106 of the Pennsylvania Crimes Code, 18 Pa.C.S. § 1106, implicates the discretionary aspects of sentencing or the legality of the sentence, a dichotomy relevant to the need for issue preservation. Upon review, we conclude that a challenge to the sentencing court's determination as to the amount of restitution sounds in sentencing discretion and, therefore, must be preserved. Accordingly, we affirm the Superior Court's ruling that Weir's restitution challenge implicates a discretionary aspect of the sentence that was not properly preserved and, therefore, was waived.
This case arose out of an altercation over a debt, during which Appellant Christopher Weir ("Weir") struck and damaged the motorcycle of Jacob Korimko ("Korimko"). Trial Court Opinion, 6/22/2017, at 2. Weir was charged with one count each of burglary, criminal mischief, harassment, and disorderly conduct.1 He proceeded to a non-jury trial on October 17, 2017. Concerning the damage to his motorcycle, Korimko testified at trial that he paid $1492 to replace the entire headlight assembly: the headlight, two side frames, the cowl, a support, and the gauge cluster. N.T., 10/17/2016, at 16–17, 25. Korimko also testified that his original estimate for repairing the vehicle totaled $2492, $1492 for new parts and $1000 to paint the new parts. Korimko testified that he could not afford the painting expense, so the new parts remained unpainted. Id . at 17, 25, 28.
Following the non-jury trial, the trial court found Weir guilty of criminal mischief and harassment. N.T., 10/17/2016, at 59; Trial Court Opinion, 6/22/2017, at 1. As for potential restitution, the trial court stated, N.T., 10/17/2016, at 59. The case immediately proceeded to sentencing, at which the trial court sentenced Weir to probation for an aggregate term of two years and ninety days. Id . at 63. The trial court also ordered Weir to pay restitution, stating: Id .
Weir filed a timely post-sentence motion, raising a challenge to the weight of the evidence supporting the verdict and a non-specified challenge to the restitution order, claiming the latter "exceeds the amount of loss suffered by [Korimko] in repairing the damage to his bike." Post-Sentence Motion, 10/26/2016, ¶ 12. The trial court denied the motion based on its conclusion that the record supported its restitution order in that Korimko testified regarding how much he paid for repairs and the estimate he received "to paint the replacement parts in order to return the motorcycle to its condition prior to the damage caused by [Weir]." Trial Court Opinion, 6/22/2017, at 5 (citing Commonwealth v. Walker , 446 Pa.Super. 43, 666 A.2d 301, 311 (1995) ; Commonwealth v. Pappas , 845 A.2d 829, 845 (Pa. Super. 2004) ). The trial court observed that it "could have ordered restitution in the amount of $2,400" based on the record. Id .
Weir appealed to the Superior Court, but he did not include a Pa.R.A.P. 2119(f)2 statement in his Superior Court brief, and the Commonwealth objected. On June 18, 2018, the Superior Court issued a memorandum opinion, rejecting his restitution challenge on the basis of waiver, i.e., it was a discretionary aspect of sentencing claim, and Weir did not properly preserve it. Accord Commonwealth v. Tuladziecki , 513 Pa. 508, 522 A.2d 17 (1987) (). Weir filed an application for panel reconsideration or en banc review, insisting that his restitution challenge implicated the legality of the sentence. The Superior Court granted panel reconsideration, withdrew its memorandum opinion, and filed a published opinion affirming Weir's judgment of sentence. Commonwealth v. Weir , 201 A.3d 163, 170 (Pa. Super. 2018).
The Superior Court majority, in an opinion authored by the Honorable Mary Jane Bowes, observed that a sentencing court is statutorily required to impose restitution when the Commonwealth has established that (1) the defendant committed a crime, (2) the victim suffered injury to person or property, and (3) there exists a direct causal nexus between the crime and the loss. Weir , 201 A.3d 163, 170 (citing 18 Pa.C.S. § 1106(a) ).3 With regard to preserving a restitution challenge, the Superior Court acknowledged a conflict in its decisions as to whether an appeal of a restitution order in a criminal proceeding implicates the legality or the discretionary aspects of a particular sentence.4 To answer that question, it turned to In the Interest of M.W. , 555 Pa. 505, 725 A.2d 729 (1999), which was a challenge to restitution in a juvenile court dispositional order5 that the Superior Court noted for its clarity regarding the interplay between restitution and issue preservation. Weir , 201 A.3d at 172. At issue in M.W. was the juvenile court's authority to impose restitution pursuant to 42 Pa.C.S. § 6352, where the juvenile was not wholly responsible for the property damage. The Superior Court quoted this Court's summation of the distinction between legality of sentence and the discretionary aspects of sentencing in the realm of criminal restitution:6
We recognize that there has been some confusion as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. See In the Interest of Dublinski , 695 A.2d 827, 828–29 (Pa.Super.1997) (collecting cases). Where such a challenge is directed to the trial court's authority to impose restitution, it concerns the legality of the sentence; however, where the challenge is premised upon a claim that the restitution order is excessive, it involves a discretionary aspect of sentencing. See generally Walker , 446 Pa.Super. at 55, 666 A.2d at 307.
M.W. , 725 A.2d at 731 n.4. Concluding that the juvenile's claim sounded in sentence legality because it challenged the trial court's authority to impose restitution on a juvenile who was not solely responsible for the property damage, we held in M.W. that the juvenile's failure to preserve the issue did not preclude appellate review. Id. at 731.
Despite "the clarity" of M.W. , the Superior Court observed that panels of that court continued to use boilerplate language, like "unsupported by the record," to describe a restitution challenge as sounding in sentence legality. Weir , 201 A.3d at 172 (citing Commonwealth v. Rotola , 173 A.3d 831, 834 (Pa. Super. 2017) ). The Superior Court observed that the phrase "unsupported by the record":
Applying M.W. to Weir's challenge, the Superior Court instructed, "A challenge to the legality of sentence is presented when the defendant claims that the trial court lacked statutory authority to impose restitution because the Commonwealth failed to establish one or more of the requirements of [S]ection 1106(a)." Weir , 201 A.3d at 172. The Superior Court rejected Weir's attempt to frame his challenge as a sentence legality claim by using the phrase "unsupported by the record" and concluded that Weir's argument went to the amount of restitution, not the propriety of restitution. Weir , 201 A.3d at 174. Consequently, because the Commonwealth satisfied each element of Section 1106(a), Weir had no feasible challenge to the sentencing court's statutory authority to impose restitution. Since Weir challenged the sentencing court's determination as to the amount of restitution, his claim implicated the discretionary aspects of sentencing. Because Weir failed to include a Pa.R.A.P. 2119(f) statement in his brief and the Commonwealth objected to this omission, Weir waived his sentencing challenge. Weir , 201 A.3d at 175.
The Honorable Deborah Kunselman filed a concurring opinion concluding that Weir's challenge to the restitution sentence implicated its legality. Weir , 201 A.3d at 175 (Kunselman, J., concurring). Her two-fold reasoning was based on the view that where restitution is mandatory, a challenge to the sufficiency of evidence to support the award itself or the amount goes to the legality of the sentence. First, the plain language of Section 1106 of Title 18 makes restitution mandatory and puts the burden on the Commonwealth to prove the amount of "full restitution." Id . at 176. Second, the legislative history of Section 1106 is similar to that of the Mandatory Victims Restitution Act, 18 U.S.C. § 3663(a), and both are aimed at making restitution non-discretionary. Id. at 176 n.3. Judge Kunselman...
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