NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P : : : : : : : : :

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. MATTHEW MENCHYK, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No WDA 2011 Appeal from the Order entered November 8, 2011 in the Court of Common Pleas of Butler County, Criminal Division, at No CP-10-CR No BEFORE BENDER, DONOHUE, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J. Filed February 4, 2013 Matthew Menchyk (Appellant) appeals from the order of restitution 1 entered following his convictions for driving under the influence (DUI) and recklessly endangering another person (REAP). 2 We affirm in part and vacate in part. On January 18, 2009, Appellant was involved in a motor vehicle accident with pedestrians Joseph and Edward Pasqualini. On August 4, 1 Because this appeal is a result of an order amending the October 21, 2010 sentence to reflect an increase in restitution, it is timely as it was filed within 30 days of the amended judgment. See Commonwealth v. Wozniakowski, 860 A.2d 539, 543 (Pa. Super. 2004), appeal denied, 875 A.2d 1075 (Pa. 2005) Pa.C.S. 3802(c) and 18 Pa.C.S. 2705, respectively. * Retired Senior Judge assigned to the Superior Court.

2 2010, Appellant pled guilty, pursuant to a negotiated plea agreement, to the above-mentioned charges. The facts of record establish that at approximately 308 AM on January 18, 2009, Appellant was operating a vehicle on Stoughton Road in Slippery Rock Township, Butler County. On that evening, the weather conditions were poor as it was snowing heavily. While negotiating the snow-covered road, Appellant s vehicle struck the victims, who were walking in the roadway. At the time of the accident, Appellant s blood alcohol content was.207%, over double the legal limit of.08%. As a result of the accident, Joseph Pasqualini suffered severe head trauma and paralysis. On October 21, 2010, Appellant was sentenced to the recommended term of 72 hours to six months imprisonment at the DUI charge, and to 24 months of probation at the REAP charge. The sentencing court also imposed a $1,000 fine and ordered Appellant to make restitution to the victims and complete community service. Sentencing Court Opinion, 12/2/2011, at 1. On that date, Appellant s restitution was set at an aggregate of $320,697.17, which consisted of medical bills payable to various providers, as well as payments directly to the victim s family. N.T., 10/21/2010, at 2-3. Appellant s counsel acknowledged that the District Attorney was working to gather documents in support of the restitution amount and indicated that he would seek a formal hearing to address any issues with the restitution order. Id. at

3 On October 28, 2010, Appellant filed a Motion to Modify Restitution, wherein he alleged that the Commonwealth had not provided the requisite documentation in support of the $320, restitution order. After several delays and additional filings by both parties, a restitution hearing was held on October 24, Following the hearing and submission of briefs, the sentencing court issued an amended restitution order directing Appellant to pay an aggregate of $462, in restitution. Specifically, the trial court ordered Appellant to pay $5, to Joseph Pasqualini for reimbursement of the cost of the fixed-wing aircraft transportation following the accident; $14, to Joseph Pasqualini for out-of-pocket medical expenses; $125,000 to Joseph Pasqualini for reimbursement to his health insurance provider, the Government Employees Health Association, Inc. (GEHA); and, $316, to the Pennsylvania Department of Welfare (DPW) to satisfy the civil lien placed by DPW. Sentencing Court Opinion, 12/2/2011, at 3; Sentencing Court Order 11/8/2011. Appellant filed a timely notice of appeal. Both Appellant and the sentencing court complied with Pa.R.A.P Appellant raises six claims of error for our review. [I.] Did the lower court err in ordering the restitution requested by the Commonwealth when the Commonwealth failed to meet its burden of proving a causal connection between any single loss of the victim and the conduct of [Appellant]? [II.] Did the lower court err in holding that 18 Pa.C.S. 1106(c)(3) permitted the amendment and/or reopening of a restitution order based upon information that was merely - 3 -

4 additional and had been in the possession of the victim for over a year, rather than new information? [III.] Did the lower court err in failing to properly state reasons on the record for permitting the amendment and/or reopening of a restitution order [in violation of] 18 Pa.C.S. 1106(c)(3)? IV. Did the lower court err in holding that [Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009)] provides authority for ordering restitution to parties who, as here, did not request restitution and did not evidence an intent to seek reimbursement from the criminal case? [V.] Did the lower court err in ordering [Appellant] to pay restitution directly to the victim for an amount that was not a loss suffered by the victim? [VI.] Did the lower court err in ordering [Appellant] to pay restitution to the [DPW] for a medical lien placed against a civil lawsuit? Appellant s Brief at 4 (capitalization omitted; issues renumbered for ease of disposition). Appellant s claims address various aspects of the order of restitution imposed as a part of his sentence. Thus, we address his claims mindful of the following. In the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence. An appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing. The determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary. Commonwealth v. Atanasio, 997 A.2d 1181, (Pa. Super. 2010) (citations and quotations omitted)

5 Both the Sentencing Code and the Crimes Code contain provisions that govern the imposition of restitution. The Sentencing Code provides that the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained. 42 Pa.C.S. 9721(c). The statute governing restitution for injuries to person or property, 18 Pa.C.S. 1106, provides that (a) General rule.--upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor. 18 Pa.C.S. 1106(a). Further, (ii) If restitution to more than one person is set at the same time, the court shall set priorities of payment. However, when establishing priorities, the court shall order payment in the following order (A) The victim. (B) The Crime Victim's Compensation Board. (C) Any other government agency which has provided reimbursement to the victim as a result of the defendant's criminal conduct. (D) Any insurance company which has provided reimbursement to the victim as a result of the defendant's criminal conduct. 18 Pa.C.S. 1106(c)(1)(ii). Although full restitution under the statutorily-defined circumstances is - 5 -

6 mandatory, the actual amount that constitutes full restitution must be determined by the court, within the adversarial system and respectful of the defendant s rights to due process. Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004) (en banc). Furthermore, under Section 1106(c)(4), the Commonwealth is required to exercise due diligence to ascertain from the victim the appropriate amount of restitution and then, at or prior to sentencing, to make a recommendation to the court regarding the amount of restitution requested. Id. at The defendant has the right to challenge the amount of restitution requested. Ortiz, supra at Section 1106(c)(2) requires the court to make an initial determination of the amount of restitution at the time of sentencing. Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002). The requirement for the court to specify the amount of restitution and method of payment at sentencing is designed to provide the defendant with certainty as to his sentence, but also to allow for modification of the amount of restitution in the event that new information, not reasonably ascertainable at the time of the original sentence, should arise. Ortiz, supra at Preliminarily, Appellant alleges that because there is a significant question of what level of fault in this case is attributable to the actions of the victim, the Commonwealth cannot prove that the victims injuries flowed from conduct for which he was criminally accountable. Appellant s Brief at - 6 -

7 17. As a result, Appellant contends the victims are not entitled to restitution. Appellant s Brief at We disagree. To the extent that Appellant argues the Commonwealth never attempted to satisfy its burden of proof regarding the causal connection between the victims injuries and Appellant s conduct, we remind Appellant that he entered into a negotiated plea to the aforementioned charges that required payment of restitution as part of the sentence. 3 See Written Plea Agreement and Recommended Sentence, 8/4/2010. The sentencing court accepted the factual basis for the plea and sentenced Appellant in accordance with the negotiated result. N.T., 10/21/2010, at Although the evidence relied upon by the sentencing court did not manifest itself during trial, due to Appellant s decision to plead guilty, the sentencing court determined that Appellant s driving while under the influence was a 3 We note that this Court has upheld an award of restitution entered as part of an open plea to REAP charges where the defendant expressly agreed to pay restitution during sentencing. See Commonwealth v. Mariani, 869 A.2d 484 (Pa. Super. 2005). Mariani entered into an open plea agreement to one count of DUI and one count of REAP. As part of the plea, Mariani was ordered to pay restitution to compensate the victims for their losses that can be proven and established to the satisfaction of the [trial court]. Id. at 488. Mariani agreed to this condition. However, a substantial period of time elapsed between Mariani s sentencing and the entry of the award of restitution. On appeal, Mariani contended that this delay, and the openended nature of the restitution order entered at sentencing, rendered the that portion of her sentence illegal. Thus, she requested that this Court vacate the award in its entirety. A panel of this Court agreed that the delay and open-ended nature of the original order violated section 1106(c)(2). Nonetheless, the panel determined that trial court s order of restitution was proper, particularly as Mariani specifically agreed to pay restitution during her sentencing proceedings. The case was remanded for additional proceedings regarding the amount of restitution

8 substantial factor in causing injuries to the victims. Id. We see no reason to disturb this decision on appeal. Moreover, we reject Appellant s attempt to analogize his case to the decision of this Court in Commonwealth v. Cooper, 466 A.2d 195 (Pa. Super. 1983). In Cooper, the defendant struck and killed a young boy riding his bicycle. The defendant pled guilty to a lesser included offense of leaving the scene of a fatal accident, 4 but did not admit guilt to any offenses for having struck the victim. We vacated the order requiring the defendant to pay restitution to the victim s family, because the death of the victim was not the result of the actions for which appellant has been held criminally responsible. Id. at 196. Appellant s reliance on Cooper is misplaced. As we discussed in Commonwealth v. Walker, 666 A.2d 301 (Pa. Super. 1995), [s]upport for the Cooper holding is found in [Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992)], a case in which a wife was ordered to pay restitution to her ex-husband for expenses he incurred tracking down and reclaiming his children, after wife violated a custody order and removed the children from her exhusband's home. In finding that wife could not be ordered to pay restitution, the Harner court stated Because this section [ 1106] imposes restitution as part of a sentence, its penal character must not be overlooked and it would seem to us that restitution can be permitted under 18 Pa.C.S only as to losses for which the defendant has been held criminally accountable. This is in keeping with 4 75 Pa.C.S Duty to give information and render aid

9 the well established principle that criminal statutes must be strictly construed... In fact, the very words of the statute provide that it is applicable only upon conviction for a crime wherein property has been stolen, converted, unlawfully obtained or its value substantially decreased, or where the victim suffers personal injury directly resulting from a crime. No such crime has been committed here by Appellant. Unless the incidental costs Mr. Harner expended to locate his children have been made part of a criminal proceeding for which Appellant was convicted, it seems dubious to us that due process would permit a court to determine that these are losses that can be passed on to Appellant, as a sentence, under a theory that they flowed as a direct result of the crime for which Appellant was convicted.... [The Superior Court and the Commonwealth argue for] a strained reading of an otherwise straightforward statute which is directed at giving the trial court the ability to sentence a defendant for the damage caused by him in the commission of a crime. Thus, where one steals an automobile valued at $15,000 and during a high speed chase is involved in a wreck which damages the auto, reducing its value to $5,000, it would be appropriate, in addition to incarceration, upon conviction for theft, to require the defendant to pay the victim $10,000 for the loss of value to the auto. It is impossible to separate the actions of the theft from the damage done to the car and in this sense the decrease in value to the car is a direct result of the crime. Walker, 666 A.2d at (citations omitted, emphasis added). We find the case at bar is analogous to the example above. In accepting Appellant s plea and the negotiated sentence, the sentencing court determined that Appellant s act of driving while under the influence could not be separated from the injuries suffered by the victims. We agree with this - 9 -

10 analysis. Accordingly, we hold that the sentencing court did not err in determining that there was a causal connection between the crimes to which Appellant pled guilty and the victims resulting injuries sufficient to support the order of restitution. In his second and third questions, Appellant alleges various violations of 18 Pa.C.S. 1106(c)(3). First, Appellant claims that the lower court erred in amending the original order of restitution based upon information that was merely additional and had been in the possession of the victim for over a year, rather than [upon] new information. Appellant s Brief at 4. Appellant also contends that the sentencing court failed to specify reasons on the record for amending the order. Id. Pursuant to Subsection 1106(c)(3), [t]he court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order. 18 Pa.C.S. 1106(c)(3) (emphases added). Since the statute specifically provides that the court must state its reasons and conclusions as a matter of record for any change or amendment, it is logical to conclude that those reasons must support a modification and embody something that was not known and could not have been reasonably ascertained at the time the original order was entered. Commonwealth v. Ortiz, 854 A.2d 1280, (Pa. Super. 2004),

11 appeal denied, 863 A.2d 1145 (Pa. 2004). The record shows that on October 21, 2010, Appellant was sentenced, and on that date, Appellant s restitution was set at an aggregate of $320, Appellant s counsel informed the trial court that he needed more information regarding the restitution amounts and intended to ask for a formal restitution hearing. On October 28, 2010, Appellant filed a Motion to Modify Restitution, wherein he alleged that the Commonwealth had not provided the requisite documentation in support of the $320, restitution order. On June 13, 2011, after several postponements, the Commonwealth filed a Motion to Schedule Restitution Hearing indicating that there were outstanding issues concerning the restitution order that needed to be addressed before the sentencing court. On August 31, 2011, Appellant filed his Amended Motion to Modify Sentence as to Restitution. In that motion, Appellant sought to lower the amount of restitution, alleging that the original $320, restitution order was inappropriate. Appellant s Amended Motion to Modify Sentence as to Restitution, 8/31/2011. Appellant also sought to preclude the Commonwealth from presenting evidence at any future restitution hearing. Id. A restitution hearing ultimately was held on October 24, The record makes clear that not only did the Commonwealth have new information to present to the sentencing court, but Appellant himself brought

12 the issue of modification of the restitution amount before the sentencing court. As stated above, the sentencing court may modify an order of restitution at any time. 18 Pa.C.S. 1106(c)(3). Based on the procedural history of the case, it is clear the sentencing court did not err by reopening the issue of restitution at both parties request. Appellant also contends that the trial court did not adequately state its reasons for the amendment on the record. A review of the record belies Appellant s argument. In support of its amended restitution order, the sentencing court issued a memorandum and order stating, [u]nder [18 Pa.C.S. 1106(a) upon conviction for any crime wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentence to make restitution in addition to the punishment prescribed therefore. Under 1106(c)(3), the [court] may, "at any time or upon the recommendation of the district attorney that is based on information received from the victim...alter or amend any order of restitution," provided that the [court] states of record its reasons for doing so. In Commonwealth v. Brown, 603 Pa. 31, 981 A.2d 893, 902 (2009), the Pennsylvania Supreme Court held that in enacting 1106, the "legislature intended that a criminal offender not only be required to provide restitution to the victim directly, but to government agencies which indirectly provide reimbursement to the victim, including payment to a medical provider on the victim's behalf." Following the restitution hearing, [the sentencing court] directs [Appellant] to pay restitution to Joseph Pasqualini in the aggregate amount of $145, This total is due based on the expenditure in the amount of $5,950 for a fixed wing medical transport as is evidenced by the testimony of James Pasqualini at the time of the restitution hearing and a copy of a credit card transaction list submitted by the Commonwealth following the hearing. $14, was agreed to by [Appellant] as a proper award of restitution payable to Joseph Pasqualini as is set forth in his Memorandum of Law that was filed on April 7,

13 $125,000 is due to Joseph Pasqualini based on his expenditure of the same to GEHA, Inc., upon receipt of settlement proceeds. This finding is supported by Commonwealth's Exhibit 2. The [sentencing court] also directs [Appellant] to pay restitution to the Pennsylvania Department of Public Welfare in the amount of $316,852.57, the amount supported by Commonwealth's Exhibit 1. Sentencing Court Order, 11/8/2011, at 2-3. Based on the foregoing, we conclude that the lower court complied with 18 Pa.C.S. 1106(c)(3). In his fourth issue, Appellant contends that he is not responsible for restitution to the DPW because that agency has not actively sought criminal restitution in this case. Appellant s Brief at 21. We disagree. A panel of this Court considered a similar issue in Commonwealth v. Stradley, 50 A.3d 769 (Pa. Super. 2012). In that case, Stradley challenge[d] the propriety of the sentencing court's decision to award restitution without deducting the amount paid to the victim by his insurer emphasizing that the victim s insurer was not seeking reimbursement. Id. at 770. Thus, Stradley contended that he should not be forced to pay the victim s insurer. We rejected appellant s argument, concluding Under the statutory language, it is irrelevant that the insurance company is not seeking the award. There is no discretion accorded the court to make the award to any entity other than to the insurer. Pursuant to the express language of Section 1106, the victim is not permitted to recover for loss that she did not sustain. Section 1106 requires that the insurer rather than the victim be awarded restitution for any amount that it paid to the victim to cover the victim's loss

14 Id. at 773 (emphasis added). The sentencing court herein drew a similar conclusion from its interpretation of Brown, supra. While the decision in Brown does not expressly state that statutory victims need not actively seek restitution for an award to be valid, the applicable statutory language, as discussed in Stradley, does not contain this requirement. Accordingly, we conclude that Appellant s argument is without merit. Appellant s final two questions concern the actual amended restitution order. First, Appellant argues that the lower court erred in ordering him to pay directly to the victim reimbursement for monies paid by the victim s insurance carrier GEHA for medical expenses. Appellant s Brief at 12. To this end, Appellant claims that because the $125,000 was negotiated as part of a civil settlement, and because the expenses were never incurred out-ofpocket by the victim, the restitution award is improper. Id. Appellant s argument in this regard is in error. Sub-section (c)(1)(i) of 1106 pertains to mandatory restitution and states that the trial court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company. 18 Pa.C.S. 1106(c)(1)(i) (emphasis added). In no uncertain terms, the statutory language required the sentencing court to order restitution so as to provide the victim with full compensation for his loss, and such an award may not be reduced by an

15 amount received from an insurer. 5 Rather, restitution for amounts paid by an insurer must be awarded directly to that insurer. See 18 Pa.C.S. 1106(c)(1)(ii)(D). As such, the order entered by the sentencing court herein is in error. Accordingly, we reverse the portion of the order paying $125,000 in restitution directly to the Joseph Pasqualini, and remand for entry of a restitution award of $125,000 payable directly to GEHA. 6 In his final argument, Appellant claims that the sentencing court erred in ordering him to pay restitution to the DPW for a medical lien placed against the civil lawsuit in this matter. Appellant s Brief at 13. The Crimes Code states that restitution is to be paid to any other government agency which has provided reimbursement to the victim as a result of the defendant s criminal conduct. 18 Pa.C.S. 1106(c)(1)(ii)(C). Our Supreme Court has held that the legislature intended that a criminal offender not only be required to provide restitution to the victim directly, but to government agencies which indirectly provide reimbursement to the 5 It is irrelevant that GEHA is not seeking restitution. As discussed previously, the statute makes clear that the sentencing court must order restitution to any insurance company which has provided reimbursement to the victim as a result of the defendant's criminal conduct. 18 Pa.C.S. 1106(c)(1)(ii)(D). 6 We note, however, that while 18 Pa.C.S mandates Appellant provide restitution in the amount of $125,000 to the victim s insurance carrier as reimbursement for payment of a civil settlement, where, as here, the insurance carrier has excused Appellant of repayment, or has not pursued civil action against Appellant, once payment is made by Appellant as ordered, there is nothing in the statute that precludes the carrier from returning the funds to Appellant

16 victim, including payment to a medical provider on the victim's behalf. Brown, 981 A.2d at 902. According to the analysis in Brown, Medicare and the DPW, when compensating a medical institution for the victim of a crime who has no medical insurance, qualify as government agencies that have provided reimbursement to the victim. Id. Instantly, the victim in this case applied for medical assistance from the DPW following the accident. When the DPW provides medical assistance, it also places a lien against any civil recovery related to the cause of the applicant s injuries. Appellant s Brief at 13. Again, considering the statutory language and our Supreme Court s holding in Brown, we hold that this issue is without merit. Accordingly, we vacate the part of the order that awarded $125,000 directly to the victim. Order vacated in part. Case remanded for entry of a restitution award payable to Government Employees Health Association, Inc. (GEHA) in the amount of $125,000. The remainder of the November 8, 2011 order is affirmed. Judge Bender files a concurring memorandum. Judge Donohue files a dissenting memorandum