Commonwealth v. Hall , 994 A.2d 1141 ( 2010 )

OPINION BY

SHOGAN, J.:

¶ 1 Appellant, Andre Hall, appeals from the judgment of sentence entered on August 6, 2007, in the Philadelphia County Court of Common Pleas. The judgment of sentence included a term of imprisonment followed by probation for his conviction of voluntary manslaughter. As a condition of probation, the sentencing court directed Appellant to pay child support to the decedent’s two young children. Appellant appeals this condition. Because we hold that the portion of the sentence that required Appellant to pay child support for the decedent’s children was an illegal sentence, we vacate the judgment of sentence and remand for re-sentencing.

¶ 2 Throughout 2004, Appellant was romantically involved with, and fathered a child with, Tamisha Townson (“Townson”). Townson already had two children with her ex-husband Jonathan Williams (“Williams” or “the decedent”). Townson and the decedent were still active in each other’s lives when Appellant and Townson began their romantic relationship. On December 12, 2004, at approximately 6:00 a.m., Appellant and Townson were in bed together at Townson’s home when the decedent telephoned Townson and wanted to come to her residence. While Townson was on the phone with the decedent, Appellant left the house. As he was leaving, Appellant encountered the decedent outside and shot him. The decedent was then transported to a hospital where he died at approximately 7:30 a.m.

¶ 3 Following a jury trial, which was held on August 4, 2005 and August 5, 2005, Appellant was found guilty of voluntary manslaughter. On September 20, 2005, the court sentenced Appellant to five to ten years of incarceration followed by ten years of reporting probation. The court also ordered Appellant to pay child support for Appellant’s own child with Town-son, as well as the decedent’s children with Townson. Appellant appealed.

¶ 4 In a Memorandum filed on June 12, 2007, this Court affirmed Appellant’s conviction, but it vacated the judgment of sentence and remanded for re-sentencing directing the sentencing court to clarify whether the order to pay support for decedent’s children was a direct sentence or a condition of probation. Commonwealth v. Hall, 931 A.2d 45 (Pa.Super.2007) (unpublished memorandum). At the re-sentencing hearing, the sentencing court explained that it was not a direct sentence:

Well, I will clarify for the Superior Court, should this go back to the Superi- or Court, that the reason that I ordered that you pay towards support for the children of the decedent was for the rehabilitative purposes that would serve upon you, [Appellant]; and they were ordered as a condition of probation for that very reason.

And as to CP-51-CR-0400131-2005, as to the charge of voluntary manslaughter, felony of the first degree, the sentence of the Court is not less than five years, nor more than ten years, to be followed by ten years reporting probation, which will be supervised by the state Board of Probation and Parole.

As I have indicated, you will be required to pay towards the support of the decedent’s children, and that will be based on your ability to pay. But I am also going to order that it be no less than $100 per child per month. And if you are not able to pay that, then that will be brought to my attention or to the attention of the probation department.

Actually, that’s going to be supervised. The supervision is going to be under the county supervision. I think that will be easier to monitor those restitution payments if it’s under the county instead of under the state.

N.T. Re-sentencing, 8/6/07, at 22-23.

¶ 5 On appeal, Appellant argues the sentence is illegal because the court did not have the statutory authority to order him to pay restitution in the form of child support to the decedent’s children. Appellant asserts that restitution has never been interpreted to mean child support. Appellant’s Brief at 9. In the alternative, Appellant argues the sentencing court abused its discretion when it sentenced Appellant as a condition of probation to pay child support to the decedent’s children. Id. at 16.

¶ 6 It is well settled that a challenge to a court’s authority to impose restitution is generally considered to be a challenge to the legality of the sentence. Commonwealth v. Langston, 904 A.2d 917 (Pa.Super.2006) (citing Commonwealth v. Colon, 708 A.2d 1279 (Pa.Super.1998)). “[A]ppellant’s claim, that [a] minor child is not a ‘victim’ statutorily entitled to restitution, implicates the legality of the restitution sentence.” Id. 904 A.2d at 921.

¶ 7 Our standard of review in determining the legality of a sentence is as follows:

If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Johnson, 910 A.2d 60, 66 n. 5 (Pa.Super.2006) (citation omitted).

¶ 8 In its Pa.R.A.P. 1925(a) Opinion, the sentencing court explained the child support requirement as rehabilitative in nature, and stated that it was imposed as restitution under the Sentencing Code (42 Pa.C.S.A. §§ 9701 et seq.) as a condition of probation. Trial Court Opinion, 5/12/08, at 3. The Sentencing Code provides that the sentencing court may impose a sentence of probation (42 Pa.C.S.A. § 9754(b)), and as a condition of probation, the court may require the defendant to make restitution for the losses he caused in an amount he can afford to pay. 42 Pa.C.S.A. § 9754(c)(8). The sentencing court may also require the defendant to satisfy any other conditions reasonably related to rehabilitation. 42 Pa.C.SA. § 9754(c)(13).

¶ 9 While the Sentencing Code does not provide a definition of restitution, our Supreme Court has explained that restitution “refers to compensation required for the wrongful appropriation of money or property.” Commonwealth v. Walton, 483 Pa. 588, 595 n. 10, 397 A.2d 1179, 1183 n. 10 (1979).¹ Here, the sentencing court ordered Appellant to pay child support to the decedent’s children as restitution under the authority of 42 Pa.C.S.A. § 9754(c)(8) and for rehabilitative purposes under 42 Pa.C.S.A. § 9754(c)(13).²

¶ 10 Thus, even without causation, a sentencing court may impose restitution under the Sentencing Code as a condition of probation when it is intended to rehabilitate a defendant. 42 Pa.C.SA. § 9754(c)(13); Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.Super.2007). Furthermore, the sentencing court is vested with broader discretion when imposing restitution as a condition of probation as opposed to restitution as a direct sentence. Commonwealth v. Harner, 533 Pa. 14, 21, 617 A.2d 702, 706 (1992). The restitution ordered in the instant case as a condition of probation was not a direct sentence under the Crimes Code (18 Pa.C.SA. §§ 101 et ¡seq.J pursuant to 18 Pa.C.S.A. § 1106. See Harriott, 919 A.2d at 237-238 (Pa.Super.2007) (stating that restitution imposed under 18 Pa.C.S.A. § 1106(a) is a direct sentence, rather than a condition of probation or intermediate punishment).

¶ 11 As explained by the sentencing court, the present case specifically deals with § 9754 of the Sentencing Code, and the nature of conditions that can be attached to an order of probation. Trial Court Opinion, 5/12/08, at 3. In Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990), this Court held the sentencing court erred when it ordered a defendant, as a condition of probation, to forfeit his truck after pleading guilty to driving while under the influence of alcohol. After reviewing all of the statutory conditions of probation authorized under § 9754(c), this Court held, “None of the specific conditions in § 9754(c) explicitly or implicitly authorize the economic deprivation as has been ordered in this case.” Id. at 236. Therefore, to the extent a sentence of probation is intended to rehabilitate a defendant, the associated probation conditions must serve that end.³

¶ 12 In the instant case, the sentencing court explained the “intent [of the sentence] was that the defendant level the field he had disrupted when he killed the other children’s father by contributing to then- financial support.” Trial Court Opinion, 5/12/08, at 5-6. Ultimately, the sentencing court’s order may be considered socially laudable, and it is certainly a compassionate response to a tragic situation. However, the true purpose behind the order was clearly to support the decedent’s children and not to rehabilitate Appellant.

¶ 13 Moreover, the decedent’s children were not victims in this case. While the children may have been “victimized” by the crime, they were not victims themselves. The sentencing court cites Harnner, swpra, as support for the order of restitution. In Harner, the Supreme Court discussed the trial court’s ability to impose restitution as a condition of probation. However, in Harner, the payee of the restitution order was the actual victim of the crime and not, as here, simply an individual or individuals who were tangentially affected due to their relationship to the victim.

¶ 14 Our research has not revealed any Pennsylvania case where restitution has been interpreted to mean child support. Furthermore, in both Commonwealth v. Langston, 904 A.2d 917 (Pa.Super.2006) and Commonwealth v. Opperman, 780 A.2d 714 (Pa.Super.2001), panels of this Court concluded that it was error to order restitution to a third party who was not a direct victim of the crime. While both Langston and Opperman dealt with direct sentences under 18 Pa.C.S.A. § 1106, the discussion as to who and what can be a victim is instructive.⁴ We find Langston to be particularly instructive in that the facts of that case are similar to the case at bar. In Langston, a panel of this Court vacated an order of restitution to guardians of a child whose father was killed as a result of defendant’s driving under the influence as the child was not a direct victim. Similarly, in Opperman, this Court held that an insurance company was not a victim and concluded that it was error to order restitution to a third party who was not a direct victim of the crime.

¶ 15 Upon review, we are constrained to conclude that the decedent’s children, while certainly affected by Appellant’s crime, were not direct victims and that restitution cannot be in the form of child support to the decedent’s children. The payment of child support was not compensation for the wrongful appropriation of money or property, and it does not fall within the plain meaning of restitution set forth in Walton, supra. Moreover, the order of restitution was not a directive for Appellant “[t]o make restitution for the fruits of his crime” (42 Pa.C.S.A. § 9754(c)(8)), nor was it “reasonably related to the rehabilitation of the defendant” (42 Pa.C.S.A. § 9754(c)(18)). We reiterate the statement by the trial court that the “intent [of the sentence] was that the defendant level the field he had disrupted when he killed the other children’s father by contributing to their financial support.” Trial Court Opinion, 5/12/08, at 5-6. While we acknowledge the sentencing court’s good intention, the sentence was not authorized under Pennsylvania law.

¶ 16 For the reasons set forth above, we vacate the judgment of sentence. Because the sentence is illegal, we do not reach Appellant’s alternate argument that the trial court abused its discretion.

¶ 17 Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.

¶ 18 ALLEN, J., files a Dissenting Opinion which is joined by FORD ELLIOTT, P.J., STEVENS, J., and BOWES, J.

1 . We cannot apply the definition of restitution from the Crimes Code to the Sentencing Code because the Crimes Code provides a broader definition of restitution than implied by the Sentencing Code.

Restitution and reparation mean different things. Restitution ordinarily refers to compensation for the wrongful taking of property, reparation, to compensation paid for [physical] injury.... Section 1106 of the Crimes Code uses the term restitution to describe both types of compensation.... [T]he Sentencing Code, however, specifically refers to both restitution and reparation. Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24, 26 n. 5 (1979) (overruled on other grounds); see also Walton, 483 Pa. at 595 n. 10, 397 A.2d at 1183 n. 10.

2 . We note that the sentencing court made no finding regarding whether or not the decedent actually supported his children with Townson prior to his demise. Moreover, there is nothing in the record reflecting how the sentencing court arrived at the dollar amount of $100.00 per month per child.

3 . Furthermore, to the extent a sentence of probation is imposed to make restitution for losses caused by the defendant's criminal conduct, there should be proof of the damages suffered. See Harner, 533 Pa. at 23, 617 A.2d at 707 (Under 42 Pa.C.S. § 9754(c)(8), the trial court is obligated "to determine what loss or damage has been caused, and what amount of restitution appellant can afford to pay, and how it should be paid.”).

4 . Compare Commonwealth v. Lee, 947 A.2d 199 (Pa.Super.2008). In Lee, the trial court ordered restitution as part of the defendant's direct sentence. A panel of this Court concluded that directing restitution to a third party animal shelter, which was not a direct victim, following the defendant's conviction for cruelty to animals was not illegal as there was separate statutory authority to permit the restitution under 18 Pa.C.S.A. §5511(1) ("The cost of the keeping, care and destruction of the animal shall be paid by the owner thereof and claims for the costs shall constitute a lien on the animal. In addition to any other penalty provided by law, the authority imposing sentence upon a conviction for any violation of this section may require that the owner pay the cost of the keeping, care and destruction of the animal.”).