Opinion
J-S79035-16 No. 96 EDA 2016
11-23-2016
COMMONWEALTH OF PENNSYLVANIA v. STACY L. SALTZER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 30, 2015 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0004765-2014 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Stacy L. Saltzer ("Saltzer") appeals from the judgment of sentence imposed following her entry of an open guilty plea to one count each of driving under the influence of a controlled substance ("DUI"), accidents involving damage to unattended vehicle, disregarding a lane of traffic, and operating a vehicle without financial responsibility. We affirm.
The trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/1/16, at 1-3.
On appeal, Saltzer raises the following question for our review:
Did the [trial] court err in ordering [Saltzer] to pay restitution to PECO [Energy Company ("PECO")] in the amount of $19,463.70 for allegedly damaging a PECO utility pole, where no affiant claimed[,] through competent testimony or report[,] that any contact occurred between [Saltzer's] car and the pole[,] and
[Saltzer] was never charged [with,] nor [pled] guilty to[,] striking the pole[?]Brief for Appellant at 9 (unnumbered).
Saltzer argues that the trial court erred by ordering Saltzer to pay restitution for the damaged PECO utility pole. Id. at 12. Saltzer cites to this Court's decision in Commonwealth v. Harriott , 919 A.2d 234 (Pa. Super. 2007), and asserts that, to impose an order of restitution, there must be a specific nexus between the crime committed and the amount of restitution ordered. Brief for Appellant at 12. Saltzer argues that such a nexus was not present in this case, because she was never charged with damaging the utility pole. Id. at 13.
Additionally, Saltzer claims that the PECO utility pole was never mentioned at her guilty plea hearing. Brief for Appellant at 13. Saltzer further contends that the trial court's determination was based merely on speculative, circumstantial evidence that had not been presented at the guilty plea hearing. Id. at 14. However, we note that the prosecutor referred to PECO's restitution claim during both the guilty plea hearing and the sentencing and restitution hearing. See N.T., 7/8/15, at 3; see also N.T., 11/30/15, at 3. After the guilty plea hearing, the trial court postponed sentencing to consider restitution. See N.T., 7/8/15, at 4-5, 21. Additionally, after the sentencing and restitution hearing, the trial court left open the issue of restitution as to the PECO utility pole, and subsequently conducted a hearing to determine whether Saltzer should be held responsible for the damage. See N.T., 11/30/15, at 16.
"When a court's authority to impose restitution is challenged, it concerns the legality of the sentence; however, when the challenge is based on excessiveness, it concerns the discretionary aspects of the sentence." Commonwealth v. Oree , 911 A.2d 169, 173 (Pa. Super. 2006). Here, Saltzer asserts that the restitution for the PECO utility pole is illegal because there was an insufficient nexus between her actions and the damage. Therefore, Saltzer's claim challenges the legality of her sentence. See Commonwealth v. Atanasio , 997 A.2d 1181, 1183 (Pa. Super. 2010) (stating that "a claim that a restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing."). "Issues relating to the legality of a sentence are questions of law. Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Wolfe , 106 A.3d 800, 802 (Pa. Super. 2014) (citations, brackets and ellipses omitted); see also Commonwealth v. Stradley , 50 A.3d 769, 772 (Pa. Super. 2012) (stating that because "[the appellant's] claim on appeal challenges the legality of his sentence, its review is not abrogated by the entry of his guilty plea.").
Saltzer characterizes the restitution as a direct sentence imposed under Section 1106(a) of the Crimes Code. However, the trial court ordered Saltzer to pay restitution as a condition of her DUI sentence. Accordingly, the restitution is a condition of intermediate punishment imposed under 42 Pa.C.S.A. § 9763, which provides, in relevant part, as follows:
42 Pa.C.S.A. § 9763. Sentence of county intermediate punishment.
* * *
(b) Conditions generally.—The court may attach any of the following conditions upon the defendant as it deems necessary:
* * *
42 Pa.C.S.A. § 9763(b)(10).(10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount, for the loss or damage caused by the crime.
In Harriott , this Court held that,
to impose restitution as a condition of [intermediate punishment] pursuant to 42 Pa.C.S.A. § 9763(b)(10), there need not be a direct nexus between the conduct and the loss. Rather, an indirect connection between an offender's activity and the victim's damage will justify the restitution order. A sentencing court must have the latitude to include such restitution as a condition of [intermediate punishment] if restitution serves the various purposes of [intermediate punishment].Harriott , 919 A.2d at 239; see also Commonwealth v. Pleger , 934 A.2d 715, 720 (stating that "[w]hether imposed as a direct sentence or as a condition thereof ..., the primary purpose of restitution is the rehabilitation of the offender.").
In its Opinion, the trial court set forth the relevant evidence underlying Saltzer's DUI conviction, as well as the evidence establishing a nexus between Saltzer's actions and the damage to the PECO utility pole. See Trial Court Opinion, 3/1/16, at 4-7. The trial court determined that "the damages to the utility pole stem from [Saltzer's] overall conduct that night[,] which resulted in the charge of DUI, to which she has pled guilty." Id. at 7; see also Harriott , 919 A.2d at 240 (finding that, for the purpose of ordering restitution as part of an intermediate punishment for DUI, the act of spitting on police officers was part of appellant's overall conduct). Upon review, we agree that the record supports the relaxed nexus applicable when restitution is imposed as a condition of intermediate punishment, and we adopt the trial court's analysis, as set forth in its Opinion, for the purpose of this appeal. See Trial Court Opinion, 3/1/16, at 4-7. Accordingly, Saltzer is not entitled to relief on her claim.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/23/2016
Image materials not available for display.