Com. v. Booze, M.

J-A14029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

MARCUS MICHAEL BOOZE :

:

Appellee : No. 1039 WDA 2020

Appeal from the Judgment of Sentence Entered October 3, 2019

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-CR-0000302-2018

BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.

MEMORANDUM BY KING, J.: FILED: September 29, 2021

Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence entered in the Greene County Court of Common Pleas,

following the nolo contendere plea of Appellee, Marcus Michael Booze, to

simple assault.1 We affirm Appellee’s conviction but vacate and remand for

resentencing.

The trial court set forth the relevant facts of this case as follows:

On November 4, 2018, [Appellee], age 19 at the time,

entered the DubTown Vape Shop. [Appellee] was

accompanied by Louis Hunyady and Marissa Romanakis.

The three had entered the vape shop business to purchase

JUUL electronic cigarettes.

The [c]ourt recalls that there had been an ongoing feud

between the victim, Franklin D. Russell, II, and Louis

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1 18 Pa.C.S.A. § 2701(a)(2).

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Hunyady. The [c]ourt recalls also that this feud had been

fomenting as a result of online postings primarily by Russell.

Unknown to [Appellee] and his young friends, Russell was

inside the vape shop playing video games. When the three

individuals entered Russell immediately confronted

Hunyady. Quickly the verbal sniping rose to a physical

altercation and Russell began to pummel Hunyady with his

fists while holding him in a headlock. It should be noted

that Russell was much larger than Hunyady, and

significantly outweighed Hunyady. [Appellee] opened a

pocketknife and in an attempt to stop the attack, [Appellee]

stabbed Russell once in Russell’s lower back. This resulted

in a collapsed lung and hospitalization of Russell, the victim.

The next day, [Appellee] was arrested and charged with

Criminal Attempt-Homicide and Aggravated Assault. On

May 8, 2019, [Appellee] was tried before a jury on the

charges of Criminal Attempt-Murder and Aggravated Assault

with a Deadly Weapon arising out of the incident that

occurred on November 4, 2018. The jury acquitted

[Appellee] on the charge of Criminal Attempt-Homicide and

they were deadlocked as to the charge of Aggravated

Assault. The [c]ourt entered a verdict to the offense of

Criminal Attempt-Homicide and declared a mistrial on the

remaining charge of Aggravated Assault.

On August 13, 2019, the Commonwealth amended the

Aggravated Assault information to one of Simple Assault and

[Appellee] entered a plea of nolo contendere to the reduced

charge.

(Trial Court Opinion, filed January 28, 2020, at 3-5) (internal footnotes

omitted).

The court sentenced Appellee on October 3, 2019, to 30 days to 23½

months’ imprisonment.2 The court also sentenced Appellee to pay restitution

____________________________________________

2 The court later amended its sentencing order to clarify that Appellee entered

a plea of nolo contendere, where the original sentencing order had mistakenly

indicated that Appellee pled guilty.

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in the amount of $6,000.00 split evenly between the victim and the Victims

Compensation Assistance Program (“VCAP”). On October 11, 2019, the

Commonwealth timely filed a post-sentence motion, alleging that Appellee

owed $10,686.26 to VCAP, which it paid to the victim to cover his medical

treatment. The Commonwealth claimed, “to the extent the [c]ourt reduced

the restitution payable to [VCAP], the sentence imposed is illegal as it is in

direct contravention to 18 Pa.C.S.A. § 1106(c)(1)[.]” (Post–Sentence Motion,

filed 10/11/19, at unnumbered 2). On November 15, 2019, prior to the court’s

ruling on the post-sentence motion, the Commonwealth filed a notice of

appeal. This Court quashed the appeal as premature on June 25, 2020. On

September 2, 2020, the trial court denied the Commonwealth’s post-sentence

motion.

The Commonwealth timely filed a notice of appeal on September 28,

2020. On October 5, 2020, the court ordered the Commonwealth to file a

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b). The Commonwealth timely filed a Rule 1925(b) statement on

October 15, 2020.

The Commonwealth raises the following issue for our review:

Did the court err in failing to include mandatory restitution

as part of the sentence imposed in accordance with the

applicable statutory provisions?

(Commonwealth’s Brief at 4).

The Commonwealth argues that the court erred by failing to sentence

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Appellee to pay the full amount of restitution related to medical bills paid by

VCAP. The Commonwealth contends that it presented evidence at sentencing

establishing that VCAP paid $10,686.26 to cover the victim’s medical

treatment which resulted from Appellee’s criminal conduct. In the absence of

any testimony or documentation supporting the court’s calculation, the

Commonwealth alleges that the restitution award of only $3,000 to VCAP is

speculative and unsupported by the record. The Commonwealth emphasizes

that Appellee does not dispute that VCAP paid $10,686.26 to cover the victim’s

medical expenses. The Commonwealth also insists it is undisputed that

Appellee caused the stab wound necessitating victim’s medical treatment in

that amount. The Commonwealth maintains the court’s failure to award VCAP

the full amount owed constitutes an illegal sentence. The Commonwealth

concludes that this Court should vacate and remand for the court to enter a

new sentencing order requiring Appellee to pay the full restitution owed to

VCAP in the amount of $10,686.26. We agree.

Initially, we must decide whether the Commonwealth’s issue implicates

the legality of the sentence, as alleged by the Commonwealth, or the

discretionary aspects of sentencing. A challenge to the legality of a sentence

raises a question of law. See Commonwealth v. Smith, 956 A.2d 1029,

1033 (Pa.Super. 2008) (en banc). In reviewing this type of claim, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013). “An illegal

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sentence must be vacated…” Commonwealth v. Ramos, 197 A.3d 766, 769

(Pa.Super. 2018) (citation and quotation marks omitted). Moreover,

assuming jurisdiction is proper, “a challenge to the legality of the sentence

can never be waived and may be raised by this Court sua sponte.”

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 2014) (citation

omitted).

In contrast, challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752

A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a

discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P.

902 and 903; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether

there is a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

“The requirement that an appellant separately set forth the reasons

relied upon for allowance of appeal furthers the purpose evident in the

Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision to

exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112

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(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc)) (emphasis omitted) (internal quotation marks

omitted).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790

A.2d 1013 (2001)).

“[An a]ppellant’s challenge to the amount of restitution set by the trial

court presents a substantial question.” Commonwealth v. Solomon, 247

A.3d 1163, 1167 (Pa.Super. 2021) (en banc). See also Commonwealth v.

Pappas, 845 A.2d 829, 842 (Pa.Super. 2004) (stating appellant raised

substantial question by arguing there was insufficient evidence of value of

stolen property to support restitution award); Commonwealth v. Walker,

666 A.2d 301, 310 (Pa.Super. 1995) (concluding that substantial question is

raised when appellant argues that sentence of restitution is not supported by

record).

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In Commonwealth v. Weir, ___ Pa. ___, 239 A.3d 25 (2020), our

Supreme Court reiterated that “a challenge to the sentencing court’s authority

to order restitution raises a non-waivable legality of sentencing issue. A

challenge to the manner in which the sentencing court exercises that authority

in fashioning the restitution implicates the discretionary aspects of the

sentence.” Id. at ___, 239 A.3d at 37. Therefore, when an appellant claims

that the trial court lacked statutory authority to impose restitution, it is a

legality of sentencing issue. Id. Conversely, where an appellant “challenges

only the amount of the award based on the sentencing court’s consideration

of the evidence of loss presented by the Commonwealth, it is a challenge to

the discretionary aspects of sentencing.” Id. at ___, 239 A.3d at 38.

Instantly, the Commonwealth’s claim is that the trial court erred in

determining the proper amount of restitution the court awarded to VCAP,

which the Commonwealth characterized as speculative. (See

Commonwealth’s Brief at 17). Because the Commonwealth disputes only the

amount of the restitution award, rather than the trial court’s authority to

impose restitution, it is a challenge to the discretionary aspects of Appellee’s

sentence, which must be preserved for our review. See Weir, supra.

Here, the Commonwealth raised its challenge to the amount of

restitution in a timely post-sentence motion, and filed a timely notice of appeal

following the denial of post-sentence motions. Although the Commonwealth

did not include in its brief a separate Rule 2119(f) statement, Appellee did not

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object to this defect, so we may overlook it.3 See Commonwealth v. Kiesel,

854 A.2d 530 (Pa.Super. 2004). The Commonwealth’s issue also raises a

substantial question for our review. See Solomon, supra; Walker, supra.

Therefore, we will review the merits of the Commonwealth’s claim.

The Crimes Code provides for restitution for injuries to persons or

property, as follows:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime

wherein:

* * *

(2) the victim, if an individual, suffered personal injury

directly resulting from the crime, the offender shall be

sentenced to make restitution in addition to the punishment

prescribed therefor.

* * *

(c) Mandatory restitution—

(1) The court shall order full restitution:

(i) Regardless of the current financial resources of the

defendant, so as to provide the victim with the fullest

compensation for the loss. The court shall not reduce a

restitution award by any amount that the victim has

received from the Crime Victim’s Compensation Board or

other government agency but shall order the

defendant to pay any restitution ordered for loss

previously compensated by the board to the Crime

Victim’s Compensation Fund or other designated

account when the claim involves a government agency in

addition to or in place of the board. The court shall not

____________________________________________

3 Appellee did not file a brief on appeal.

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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.

* * *

(2) At the time of sentencing the court shall specify the

amount and method of restitution. In determining the

amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the

victim, the victim’s request for restitution as presented

to the district attorney in accordance with paragraph (4)

and such other matters as it deems appropriate.

* * *

18 Pa.C.S.A. § 1106(a)(2), (c)(1)(i), (c)(2)(i) (emphasis added).

Section 1106 makes clear that the legislature intended for a criminal

offender to not only be required to provide restitution to the victim directly,

but also to government agencies which provide reimbursement to the victim.

Commonwealth v. Brown, 603 Pa. 31, 981 A.2d 893 (2009). Additionally,

the amount of the restitution award must be supported by the record and may

not be speculative. Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.Super.

2006). “The court must…ensure that the record contains the factual basis for

the appropriate amount of restitution.” Commonwealth v. Pleger, 934 A.2d

715, 720 (Pa.Super. 2007). The dollar value of the injury suffered by the

victim as a result of the crime assists the court in calculating the appropriate

amount of restitution. Id.

Instantly, the Commonwealth sought reimbursement for the amount

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VCAP paid to the victim. At sentencing, the Commonwealth submitted a letter

from VCAP indicating that it approved an award of $10,686.26 in this case.

Notwithstanding the Commonwealth’s claim for that amount, the trial court

stated that it had discretion to determine the restitution award to be paid to

VCAP. In support of the court’s position for reducing the VCAP award, the

court relied upon the provision of Section 1106 that allows the court to

consider “any matters as it deems appropriate.” See 18 Pa.C.S.A. §

1106(c)(2)(i). The court explained the “matters it deemed appropriate” to

reduce the VCAP award from $10,686.26 to $3,000.00 as follows:

The [c]ourt recognizes that [VCAP] has paid medical bills on

behalf of [the victim] in the amount of $10,686.26.

The [c]ourt is now saddled with the task of determining

restitution and looks to the provisions of Title 18 §

1106(c)(2)(i) and other sections related to restitution.

The [c]ourt recognizes that it has the ultimate authority in

determining the appropriateness of restitution.

The court now DIRECTS [Appellee] pay $3,000.00 to the

benefit of…the victim in this case.

As the [c]ourt also recognizes that [VCAP] has paid in

excess of that amount the Court now DIRECTS that the

Greene County Clerk of Courts collect $3,000.00 from

[Appellee] and for the benefit of [VCAP].

The factors that the [c]ourt has considered in determining

the appropriateness of the restitution relate to the jury’s

verdict of acquittal of the charge related to attempted

criminal homicide. The [c]ourt also recognizes the age of

[Appellee], [Appellee]’s vision problems, and the charge to

which he has entered a plea indicates a negligent not

reckless or intentional state of mind.

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The [c]ourt also recognizes and now determines that [the

victim] as the aggressor in starting a fight with Mr. Hunyady

and that actions of [Appellee] amount to at least an

imperfect defense of others.

(N.T. Sentencing, 10/3/19, at 21-22).

Here, the court failed to order restitution in an amount that would fully

reimburse VCAP for the amount it paid the victim for his medical bills. See

18 Pa.C.S.A. § 1106(c)(1)(i). Although VCAP paid $10,686.26 to the victim,

the court ordered Appellee to pay only $3,000.00 to VCAP, which is

approximately one-third of the total VCAP award. Significantly, neither

Appellee nor the Commonwealth disputed the amount that VCAP paid. Our

legislature intended that a defendant fully reimburse any government agency,

including VCAP, which provided funds to the victim. See Brown, supra.

Although the court mentioned some reasons why it was reducing the

amount of restitution sought, the award of only $3,000.00 to VCAP is

speculative given the undisputed evidence establishing the amount of the

victim’s medical bills, which VCAP paid. See Pleger, supra; Rush, supra.

Further, the court did not specify how it came up with the $6,000.00

restitution total or why it split that amount evenly between the victim and

VCAP. Under these circumstances, we vacate the restitution portion of the

sentencing order and remand for resentencing. Accordingly, we affirm

Appellee’s conviction but vacate and remand for further proceedings.

Conviction affirmed. Judgment of sentence vacated in part. Case

remanded for further proceedings. Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/29/2021

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