Opinion
J-S80035-17 No. 3132 EDA 2017
04-13-2018
COMMONWEALTH OF PENNSYLVANIA v. ROBERT J. KEARNS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 31, 2017 in the Court of Common Pleas of Northampton County, Criminal Division at No(s): CP-48-CR-0000829-2012 BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Robert J. Kearns ("Kearns") appeals from the Order (hereinafter "PCRA Order") denying his first Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We reverse the PCRA Order, vacate Kearns's underlying judgment of sentence, and remand for resentencing.
The PCRA court set forth the history underlying this appeal in its PCRA Order, which we incorporate herein by reference. See PCRA Order, 8/31/17, at 1-5.
On August 31, 2017, the PCRA court entered the PCRA Order, concomitantly with a Statement of Reasons thoroughly explaining its reasons for denying PCRA relief. Kearns timely filed a Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The PCRA court thereafter issued a Rule 1925(a) Opinion, relying upon the reasoning it had advanced in its Statement of Reasons.
Kearns now presents the following issues for our review:
1. Whether the restitution component of [Kearns's] sentence on December 11, 2015, ordering restitution in the amount of $832,460.00[,] payable to Bethlehem Township[,] is illegal because the Township of Bethlehem cannot be a victim under the subject criminal statutes, and therefore, [Kearns's] sentence must be vacated?Brief for Appellant at 4 (capitalization omitted). We will address Kearns's issues together, as they are related.
2. Whether the [PCRA] court's denial of [Kearns's PCRA] Petition ... was unlawful and an abuse of discretion where the restitution Order in this case is illegal because the Township of Bethlehem cannot be a victim under the subject criminal statutes?
We begin by noting our standard of review: "In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). "The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level." Id. (citation omitted).
Relying upon the Pennsylvania Supreme Court's decision in Commonwealth v. Veon , 150 A.3d 435, 450 (Pa. 2016), Kearns argues that "the restitution portion of his sentence[,] requiring payment of $832,460.00[,] is illegal and must be vacated because Bethlehem Township cannot be considered a direct victim nor a reimbursable compensating government agency, under 18 Pa.C.S.A. § 1106[,] for purposes of restitution." Brief for Appellant at 15 (footnotes added); see also Veon , 150 A.3d at 454-55 (holding that a restitution order directing payment to a Commonwealth agency, as the "victim" of a crime under Section 1106, constitutes an illegal sentence).
Kearns direct appeal was pending when Veon was decided.
Bethlehem Township is incorporated as a Pennsylvania municipality under the First Class Township Code. See 53 Pa.C.S.A. § 55101, et seq.
Section 1106 provides, in relevant part, that a "court shall order full restitution ... [r]egardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss." 18 Pa.C.S.A. § 1106(c)(1)(i) (emphasis supplied). The definition of "victim," set forth in 18 Pa.C.S.A. § 1106(h), references the definition of "victim" contained in the Crime Victims Act ("the CVA"), see 18 Pa.C.S.A. § 11.103 (discussed infra).
The trial court ordered Veon to pay restitution to the Pennsylvania Department of Community and Economic Development ("DCED") following his conviction for unlawfully diverting public resources.
We note that legality of sentence claims are always subject to review if the PCRA petition is timely filed. See Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999).
The PCRA court, in its PCRA Order and Statement of Reasons, summarized (1) the Veon decision; (2) the arguments of both parties in the instant case as to whether Veon applies here and invalidates Kearns's restitution Order; and (3) the court's reasons for determining that Veon is inapplicable. See PCRA Order, 8/31/17, at 5-13. We incorporate the PCRA court's recitation herein by reference. See id. at 5-13.
To the extent that the PCRA court, on page 11 of its PCRA Order, states that a political subdivision is defined as a "person" under the Statutory Construction Act, the court is referring to the following passage from Veon : "[T]he Statutory Construction Act ... defined 'person' to include 'a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.' 1 Pa.C.S. § 1991." Veon , 150 A.3d at 450.
In distinguishing Veon , the PCRA court emphasized that Veon "involved an imprecise amount of restitution calculated to punish the non-pecuniary gains realized by the defendant as a result of his criminal conduct, [whereas] the restitution ordered in this case represents a specific amount of money taken from a specific victim." PCRA Order, 8/31/17, at 11. Contrary to the PCRA court's finding, however, these different facts do not affect the applicability of Veon 's holding to the instant case. The applicability of Veon to any given case does not turn on whether (1) the victim's loss was "precisely ascertainable"; (2) the victim is "specific" and/or direct; or (3) the defendant's criminal conduct served his or her pecuniary versus non-pecuniary interest. Rather, the critical determination is whether the person/entity designated to receive the restitution ordered is a "victim" for purposes of Section 1106 and Section 11.103 of the CVA. See Veon , 150 A.3d at 454. The Veon Court explained as follows:
Notwithstanding any legislative expansion of the definition of "victim," it is clear that the plain text of Section 11.103 still envisages "victims" as "persons" commonly understood. A "victim" under Section 11.103 must be "a direct victim," i.e., an "individual" who has suffered injury, death, or loss of earnings; or a "child," "parent," "guardian," or "family member." Every relevant noun unequivocally describes a human being , not a government agency , and nowhere else is there a relevant definition that persuades us to broaden the common understanding of these words. There can be no serious doubt that DCED, the agency designated to receive the restitution ordered in this case, does not qualify as a direct victim. And neither, of course, is DCED a parent, guardian, child, or family member of a homicide victim. Although Subsection 1106(c)(1)(i)'s provisions regarding "victims" and "other government agenc[ies]" reveals that the General Assembly intended that restitution reach certain Commonwealth agencies in a manner that did not depend upon identifying such agencies as "victims," it nonetheless required first that the agency in question have provided compensation to a victim so defined. That is what necessitates our determination that DCED is not entitled to restitution in this case.Veon , 150 A.3d at 454 (emphasis added).
In short, to qualify for restitution under Subsection 1106(c)(1)(i), a Commonwealth agency either must be a victim as that term is used in that subsection or must have reimbursed a victim[,] as defined by Section 11.103, directly or by paying a third party on behalf of the victim. DCED, itself, cannot be a victim under Section 11.103.
In the instant case, pursuant to the reasoning of Veon , Bethlehem Township, a municipality, is not a "victim" under Subsection 1106(c)(1)(i), nor an entity that has reimbursed a victim as defined by Section 11.103. See id. at 454-55; see also W. Indies Mission Appeal , 128 A.2d 773, 778 (Pa. 1957) (observing that a "municipality is a governmental agency of the State, vested by the State with a part of its sovereignty, and employed in aiding the State in matters of government and the execution of its laws[.]"). Moreover, though Bethlehem Township, unlike the DCED in Veon , was the direct victim of Kearns's criminal conduct, the Veon Court emphasized that the definition of "direct victim" contained in 18 Pa.C.S.A. § 11.103 is "an 'individual' who has suffered injury, death, or loss of earnings ...." Veon , 150 A.3d at 454 (emphasis added); see also id. (stating that the definition of "direct victim" "unequivocally describes a human being, not a government agency ....").
Accordingly, we are constrained to rule that Kearns's sentence of restitution to Bethlehem Township is illegal, and must be vacated., See Veon , 150 A.3d at 455-56; see also Commonwealth v. Berry , 167 A.3d 100, 110 (Pa. Super. 2017) (applying Veon and ruling that the defendant's sentence was illegal insofar as it ordered him to pay restitution to the Commonwealth, where he, a former court of common pleas judge, had unlawfully used his judicial staff and court resources to further his own pecuniary interests). Moreover, because Kearns's restitution was a critical component of the trial court's overall sentencing scheme, we vacate his judgment of sentence and remand for resentencing. See Veon , 150 A.3d at 456; see also Berry , 167 A.3d at 110.
In so holding, we recognize the PCRA court's frustration that "to absolve [Kearns] of his criminal responsibility for the theft perpetrated on Bethlehem Township[,] simply because the victim, a recognized 'person' under the law, is not in human form," PCRA Order, 8/31/17, at 12, seems unjust. Nevertheless, we are bound by Veon. Accord Veon , 150 A.3d at 454-55 (stating that although "those who unabashedly divert public monies to serve their own [] interests may not be subject to the same restitutionary obligations imposed upon those who victimize individuals[,] ... to rule otherwise would require us to discard the language of the statute in pursuit of its spirit. Should the General Assembly wish to rectify this apparent gap in its restitution scheme, it may do so.").
We additionally note that the Commonwealth is seeking to recoup the stolen funds from Kearns and his co-defendant via civil actions. See Commonwealth v. Kearns , 150 A.3d 79, 86 (Pa. Super. 2016); but see also id. (wherein this Court explained that, at Kearns's resentencing hearing, the prosecutor represented as follows concerning the ordered restitution: "Future restitution [] seemed doubtful, the prosecutor concluded, given the defendants' bankruptcy filings and the defensive postures they assumed in various civil actions filed against them, where they have made no offers of settlement.").
Based on the foregoing, we vacate Kearns's judgment of sentence and remand for resentencing consistent with this Memorandum.
PCRA Order reversed. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/18
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