Commonwealth v. Weir, C., Aplt.

[J-26-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 28 WAP 2019

:

Appellee : Appeal from the Order of the

: Superior Court entered December

: 17, 2018 at No. 1799 WDA 2016,

v. : affirming the Judgment of Sentence

: of the Court of Common Pleas of

: Allegheny County entered October

CHRISTOPHER ROBERT WEIR, : 17, 2016 at No. CP-02-CR-

: 0005483-2016

Appellant :

: SUBMITTED: April 21, 2020

OPINION

JUSTICE DONOHUE DECIDED: OCTOBER 1, 2020

We granted discretionary review to determine whether a challenge to the amount

of restitution imposed pursuant to Section 1106 of the Pennsylvania Crimes Code, 18

Pa.C.S. § 1106, implicates the discretionary aspects of sentencing or the legality of the

sentence, a dichotomy relevant to the need for issue preservation. Upon review, we

conclude that a challenge to the sentencing court’s determination as to the amount of

restitution sounds in sentencing discretion and, therefore, must be preserved.

Accordingly, we affirm the Superior Court’s ruling that Weir’s restitution challenge

implicates a discretionary aspect of the sentence that was not properly preserved and,

therefore, was waived.

I. BACKGROUND

This case arose out of an altercation over a debt, during which Appellant

Christopher Weir (“Weir”) struck and damaged the motorcycle of Jacob Korimko

(“Korimko”). Trial Court Opinion, 6/22/2017, at 2. Weir was charged with one count each

of burglary, criminal mischief, harassment, and disorderly conduct.1 He proceeded to a

non-jury trial on October 17, 2017. Concerning the damage to his motorcycle, Korimko

testified at trial that he paid $1492 to replace the entire headlight assembly: the headlight,

two side frames, the cowl, a support, and the gauge cluster. N.T., 10/17/2016, at 16–17,

25. Korimko also testified that his original estimate for repairing the vehicle totaled $2492,

$1492 for new parts and $1000 to paint the new parts. Korimko testified that he could

not afford the painting expense, so the new parts remained unpainted. Id. at 17, 25, 28.

Following the non-jury trial, the trial court found Weir guilty of criminal mischief and

harassment. N.T., 10/17/2016, at 59; Trial Court Opinion, 6/22/2017, at 1. As for potential

restitution, the trial court stated, “[T]he loss being approximately $2,500, give or take. We

can talk about the details of that later.” N.T., 10/17/2016, at 59. The case immediately

proceeded to sentencing, at which the trial court sentenced Weir to probation for an

aggregate term of two years and ninety days. Id. at 63. The trial court also ordered Weir

to pay restitution, stating: “At the criminal mischief he is ordered to pay restitution in the

amount of $2,000. I’m splitting the paint job cost only because we don’t have accurate

detailed information in that regard. And it is an M2, so I’m staying with $2,000.” Id.

Weir filed a timely post-sentence motion, raising a challenge to the weight of the

evidence supporting the verdict and a non-specified challenge to the restitution order,

1 18 Pa.C.S. §§ 3502(a)(3), 3304(a)(5), 2709(a)(1), and 5503(a)(1).

[J-26-2020] - 2

claiming the latter “exceeds the amount of loss suffered by [Korimko] in repairing the

damage to his bike.” Post-Sentence Motion, 10/26/2016, ¶ 12. The trial court denied the

motion based on its conclusion that the record supported its restitution order in that

Korimko testified regarding how much he paid for repairs and the estimate he received

“to paint the replacement parts in order to return the motorcycle to its condition prior to

the damage caused by [Weir].” Trial Court Opinion, 6/22/2017, at 5 (citing

Commonwealth v. Walker, 666 A.2d 301, 311 (Pa. Super. 1995); Commonwealth v.

Pappas, 845 A.2d 829, 845 (Pa. Super. 2004)). The trial court observed that it “could

have ordered restitution in the amount of $2,400” based on the record. Id.

Weir appealed to the Superior Court, but he did not include a Pa.R.A.P. 2119(f)2

statement in his Superior Court brief, and the Commonwealth objected. On June 18,

2018, the Superior Court issued a memorandum opinion, rejecting his restitution

challenge on the basis of waiver, i.e., it was a discretionary aspect of sentencing claim,

and Weir did not properly preserve it. Accord Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987) (holding that claim relating to discretionary aspects of sentence is waived

if appellant does not include Pa.R.A.P. 2119(f) statement in brief and opposing party

objects to statement’s absence). Weir filed an application for panel reconsideration or en

2 This Rule provides:

(f) Discretionary aspects of sentence. An appellant who

challenges the discretionary aspects of a sentence in a criminal

matter shall set forth in a separate section of the brief a concise

statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence. The statement

shall immediately precede the argument on the merits with respect

to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f).

[J-26-2020] - 3

banc review, insisting that his restitution challenge implicated the legality of the sentence.

The Superior Court granted panel reconsideration, withdrew its memorandum opinion,

and filed a published opinion affirming Weir’s judgment of sentence. Commonwealth v.

Weir, 201 A.3d 163, 170 (Pa. Super. 2018).

The Superior Court majority, in an opinion authored by the Honorable Mary Jane

Bowes, observed that a sentencing court is statutorily required to impose restitution when

the Commonwealth has established that (1) the defendant committed a crime, (2) the

victim suffered injury to person or property, and (3) there exists a direct causal nexus

between the crime and the loss. Weir, 201 A.3d 163, 170 (citing 18 Pa.C.S. § 1106(a)).3

With regard to preserving a restitution challenge, the Superior Court acknowledged a

conflict in its decisions as to whether an appeal of a restitution order in a criminal

proceeding implicates the legality or the discretionary aspects of a particular sentence.4

3 Section 1106(a) provides:

(a) General rule.--Upon conviction for any crime wherein:

(1) property of a victim has been stolen, converted or otherwise

unlawfully obtained, or its value substantially decreased as a direct

result of the crime; or

(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.

18 Pa.C.S. § 1106(a).

4 See Weir, 201 A.3d at 171 (citing In the Interest of Dublinski, 695 A.2d 827 (Pa. Super.

1997)). The Dublinski panel cited two opinions holding that a claim that restitution is not

supported by the record challenges the legality of the sentence, and several opinions

holding that a claim that the amount of restitution imposed was speculative is a challenge

to the discretionary aspects of the sentence. Dublinski, 695 A.2d at 828-29.

[J-26-2020] - 4

To answer that question, it turned to In the Interest of M.W., 725 A.2d 729 (Pa. 1999),

which was a challenge to restitution in a juvenile court dispositional order5 that the

Superior Court noted for its clarity regarding the interplay between restitution and issue

preservation. Weir, 201 A.3d at 172. At issue in M.W. was the juvenile court’s authority

to impose restitution pursuant to 42 Pa.C.S. § 6352, where the juvenile was not wholly

responsible for the property damage. The Superior Court quoted this Court’s summation

of the distinction between legality of sentence and the discretionary aspects of sentencing

in the realm of criminal restitution:6

We recognize that there has been some confusion as to whether an appeal

of an order of restitution implicates the legality or the discretionary aspects

of a particular sentence in a criminal proceeding. See In the Interest of

Dublinski, 695 A.2d 827, 828–29 (Pa.Super.1997)(collecting cases). Where

such a challenge is directed to the trial court's authority to impose restitution,

it concerns the legality of the sentence; however, where the challenge is

premised upon a claim that the restitution order is excessive, it involves a

discretionary aspect of sentencing. See generally Walker, 446 Pa.Super. at

55, 666 A.2d at 307.

M.W., 725 A.2d at 731 n.4. Concluding that the juvenile’s claim sounded in sentence

legality because it challenged the trial court’s authority to impose restitution on a juvenile

5 Our decision in M.W. was guided by the Juvenile Code, under which the imposition of

restitution remains discretionary. 42 Pa.C.S. § 9352(a)(5). Accord Pa. L. Journal, 179th

Gen. Assemb. No. 29, First Spec. Sess. (1995) (noting Senate removal of juvenile portion

of mandatory restitution).

6 In its discussion, M.W. “assumed, for the sake of argument, that a review of a

dispositional order under the Juvenile Act is subject to the same limitations as a review

of a criminal sentence.” M.W., 725 A.2d at 731. The court also noted our jurisdiction to

review issues relating to the lawfulness of a sentence or dispositional order. Id. (citing

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996) (reasoning that Section 9781(f)

does not preclude review of legal principles), and In the Interest of M.M., 690 A.2d 175,

177 (Pa. 1997) (discussing the right to appeal in proceedings under the Juvenile Act

generally)). The M.W. Court did not opine on whether the statutory constraints regarding

dispositional orders apply in juvenile proceedings. Id. at 371, n.4

[J-26-2020] - 5

who was not solely responsible for the property damage, we held in M.W. that the

juvenile’s failure to preserve the issue did not preclude appellate review. Id. at 731.

Despite “the clarity” of M.W., the Superior Court observed that panels of that court

continued to use boilerplate language, like “unsupported by the record,” to describe a

restitution challenge as sounding in sentence legality. Weir, 201 A.3d at 172 (citing

Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa. Super. 2017)). The Superior Court

observed that the phrase “unsupported by the record”:

provides no meaningful guidance as to whether a particular claim implicates

the discretionary aspects or legality of sentencing, as its broad scope is

amenable to differing interpretations. In some cases, a lack of record

support may implicate the sentencing court’s statutory authority to impose

restitution and, hence, the legality of sentence. In other cases, there may

be a lack of record support for the amount of restitution, which would

implicate the court’s discretion in determining the amount of restitution to be

imposed.

Id.

Applying M.W. to Weir’s challenge, the Superior Court instructed, “A challenge to

the legality of sentence is presented when the defendant claims that the trial court lacked

statutory authority to impose restitution because the Commonwealth failed to establish

one or more of the requirements of [S]ection 1106(a).” Weir, 201 A.3d at 172. The

Superior Court rejected Weir’s attempt to frame his challenge as a sentence legality claim

by using the phrase “unsupported by the record” and concluded that Weir’s argument

went to the amount of restitution, not the propriety of restitution. Weir, 201 A.3d at 174.

Consequently, because the Commonwealth satisfied each element of Section 1106(a),

Weir had no feasible challenge to the sentencing court’s statutory authority to impose

restitution. Since Weir challenged the sentencing court’s determination as to the amount

of restitution, his claim implicated the discretionary aspects of sentencing. Because Weir

[J-26-2020] - 6

failed to include a Pa.R.A.P. 2119(f) statement in his brief and the Commonwealth

objected to this omission, Weir waived his sentencing challenge. Weir, 201 A.3d at 175.

The Honorable Deborah Kunselman filed a concurring opinion concluding that

Weir’s challenge to the restitution sentence implicated its legality. Weir, 201 A.3d at 175

(Kunselman, J., concurring). Her two-fold reasoning was based on the view that where

restitution is mandatory, a challenge to the sufficiency of evidence to support the award

itself or the amount goes to the legality of the sentence. First, the plain language of

Section 1106 of Title 18 makes restitution mandatory and puts the burden on the

Commonwealth to prove the amount of “full restitution.” Id. at 176. Second, the legislative

history of Section 1106 is similar to that of the Mandatory Victims Restitution Act, 18

U.S.C. § 3663(a), and both are aimed at making restitution non-discretionary. Id. at 176

n.3. Judge Kunselman reasoned that Weir’s challenge to the amount of restitution as

“speculative and not supported by the record” questioned “the court’s authority to enter

this award” and, therefore, it “attacks the legality of his sentence.” Id. at 177.

According to Judge Kunselman, even though restitution itself is mandatory and a

challenge to restitution as not being supported by the record goes to legality, the trial court

is still permitted to determine a reasonable amount for restitution, as in the case of

awarding attorneys’ fees. Id. at 180, n.8 (citing McMullen v. Kutz, 985 A.2d 769, 776–77

(Pa. 2009)). Judge Kunselman concluded: “[T]he amount was not speculative and was

supported by the record” and therefore, the trial court “had the authority to enter such an

award.” Id. at 180.

This Court granted review to address the following question:

Whether the Superior Court majority erred in holding that a challenge to an

order of restitution pursuant to 18 Pa.C.S.A. § 1106 (Restitution for Injuries

[J-26-2020] - 7

to Persons or Property), contending that the amount is speculative and not

supported by the record, always implicates the discretionary aspects of

sentence that is subject to waiver, or whether such a challenge actually may

implicate the legality of sentence and is non-waivable, as Judge Kunselman

correctly concluded in her concurring opinion.

The parties are directed to address the Opinion Announcing the Judgment

of the Court in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality),

that was adopted by Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016).

Commonwealth v. Weir, 215 A.3d 966 (Pa. 2019).

Whether a claim implicates the legality of a sentence presents a pure question of

law, in which case our scope of review is plenary, and our standard of review, de novo.

Commonwealth. v. Petrick, 217 A.3d 1217, 1224 (Pa. 2019) (citation omitted). Resolution

of the matter at hand also involves interpretation of a sentencing statute, which presents

a pure question of law; again, our scope of review is plenary, and our standard of review,

de novo. Id. (citation omitted).

II. ARGUMENTS OF THE PARTIES

Weir failed to preserve a challenge in the Superior Court to the discretionary

aspects of his sentence. He now argues that his challenge to the amount of the order of

restitution under Section 1106 as “unsupported by the record” implicates the legality of

the sentence, and, therefore, is unwaivable. Weir’s Brief at 24. According to Weir, in

reasoning that a challenge to the amount of restitution implicates a discretionary aspect

of sentencing, the Superior Court misconstrued his challenge by overlooking “another

fundamental requirement of Section 1106—to invoke the trial court’s authority under the

statute, the Commonwealth must present sufficient evidence demonstrating the victim’s

entitlement to restitution.” Id. at 31–32 (citing Weir, 201 A.3d at 174). Weir claims that

the Commonwealth fell short of presenting sufficient evidence in this case, such as

[J-26-2020] - 8

receipts or estimates, to support the sentence of restitution. Id. at 34. He attacks the

Commonwealth’s proof on two grounds. First, the amount of restitution imposed

exceeded Korimko’s actual damages and was speculative. Id. at 34–35. Second, the

sentencing court imposed a restitution amount that was higher than the amount supported

by the record. Without any discussion of the relevant statutory provisions, Weir argues

that his sentence violates the principle that a sentencing court lacks authority to impose

anything other than a mandatory sentence, which Weir claims is “full restitution” as

mandated by 18 Pa.C.S. § 1106(c)(1)). Weir’s Brief at 35.7

In the Commonwealth’s view, an illegal sentence “is one that exceeds the

jurisdiction or power of the sentencing court to impose” the sentence. Commonwealth’s

Brief at 10. The Commonwealth contends Weir’s challenge attacks the amount of

restitution imposed, not the sentencing court’s authority to impose restitution. Id. at 17.

Although the Commonwealth acknowledges that the trial court was required to impose

full restitution, it argues that requirement does not convert Weir’s attack on the

determination of the amount into an attack on the court’s authority. Id. at 17–18 n.3.

The Commonwealth proffers several reasons why this Court should reject Weir’s

claim that to invoke the authority to impose restitution, a sentencing court must have

specific types of evidence demonstrating entitlement to the amount awarded.

7 Weir contends that “facts (other than prior convictions) that increase mandatory

sentences” — such as those establishing mandatory restitution in this case — “must be

proven beyond a reasonable doubt.” Weir’s Brief at 36–37 n.11 (citing Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000)). Weir appears to argue that the trial court did not have

authority to impose this restitution sentence because it did not make a determination as

to the amount of restitution beyond a reasonable doubt, presumably as a result of the

quality of the evidence presented. The argument is totally undeveloped in the body of his

brief and we will not address it.

[J-26-2020] - 9

Commonwealth’s Brief at 17–22 (citing Weir’s Brief at 32). First, Weir’s attack is on the

weight that the sentencing court placed on Korimko’s testimony and alleges an abuse of

discretion in crediting his testimony to the extent that it did. Commonwealth’s Brief at 17.

Second, Weir never advanced a claim that the evidence failed to establish the factual

prerequisites for the imposition of restitution as set forth in Section 1106(a), which it views

as a prerequisite for a restitution sentence. Id. at 19. Third, Weir confounds claims

attacking evidentiary support for the amount of restitution with challenges to the

sentencing court’s authority to impose restitution. Id. at 21, 22. Finally, by claiming the

amount of restitution was speculative, Weir has inherently acknowledged that restitution

was authorized. Id. at 22.8

The Commonwealth points out that Weir’s challenge to the evidence establishing

the cost of restoring the victim’s property and the weight that the court placed upon the

evidence is unlike claims raised in other recent Superior Court restitution challenge cases

that the evidence failed to establish a causal nexus between the criminal conduct and the

victim’s loss, one of the elements required to support a sentence of restitution under

Section 1106(a). Commonwealth’s Brief at 23–25 (citing Commonwealth v. Atanasio, 997

A.2d 1181 (Pa. Super. 2010), Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017),

Commonwealth v. Rotola, 173 A.3d 831 (Pa. Super. 2017), and Commonwealth v.

Crosley, 180 A.3d 761 (Pa. Super. 2018)). The Commonwealth asserts that appellate

courts generally do not disturb discretionary aspects of sentencing, such as the amount

8 The Commonwealth presents an alternative argument that, even if this Court considers

the merits of Weir’s claim, the victim’s testimony was sufficient to support the restitution

order. Commonwealth’s Brief at 22–23.

[J-26-2020] - 10

of a restitution award, “because the trial court is in a better position to weigh the factors

appropriate in determining [a] sentence.” Id. (citing this Court’s precedents).9 Lastly,

according to the Commonwealth, the relevant question is whether the sentencing court

went beyond its power and imposed an unauthorized sentence, which would give rise to

a non-waivable sentencing claim, whereas a discretionary sentencing error, like the one

alleged by Weir, does not result in an illegal sentence and is waivable. Id. at 26–27.

As directed in our grant of allowance of appeal, both Weir and the Commonwealth

address the impact of the Foster plurality and Barnes on the current challenge. Weir

predictably places his restitution challenge in the first category of sentence-legality claims

identified by the Foster plurality, i.e., where the sentencing court lacks authority to avoid

entering a particular sentence, Foster, 17 A.3d at 342. Weir’s Brief at 35. According to

Weir, his sentence is illegal because the sentencing court lacked authority to impose any

amount other than full restitution, but it imposed more than full restitution because of its

reliance on evidence that did not support the amount awarded. Id. In turn, the

Commonwealth emphasizes the plurality’s acknowledgment that a reviewing court must

limit its application of sentence legality to claims where the sentencing court’s “authority

to act” is implicated. Commonwealth’s Brief at 13. According to the Commonwealth, non-

waivability “should not encompass every instance in which the sentencing court’s

9 Commonwealth v. Martin, 351 A.2d 650, 657 (Pa. 1976) (“It is true that the sentence

imposed is normally left undisturbed on appeal because the trial court is in a far better

position to weigh the factors involved in such a determination.”); Commonwealth v. Plank,

445 A.2d 491, 492 (Pa. 1982) (citing Martin); Commonwealth v. Skeriotis, 531 A.2d 1114,

1115 (Pa. 1987) (Zappala, J., concurring and dissenting) (“It is clear that a trial court has

the discretion to assess the amount of restitution deemed appropriate to compensate the

victim for the injuries suffered.”).

[J-26-2020] - 11

‘authority to act has been infringed upon,’ as the lead opinion in Foster contends.” Id. at

27 (citing Foster, 17 A.3d at 344 (brackets and emphasis in original)).10

Regarding Barnes, Weir restates its adoption of the lead opinion in Foster “for the

proposition that a sentence is illegal for issue preservation purposes where the

sentencing court lacked authority to avoid entering a particular sentence.” Weir’s Brief at

31 (quoting Barnes, 151 A.3d at 126). The Commonwealth limits its discussion of Barnes

to a summary of its case specific holding that a sentence entered under authority that has

been rendered void on its face is an illegal sentence for issue preservation purposes.

Commonwealth’s Brief at 16.

IV. ANALYSIS

Restitution is “[t]he return of property of the victim or payments in cash or the

equivalent thereof pursuant to an order of the court.” 18 Pa.C.S. § 1106(h). “[A]n order

of restitution must be based upon statutory authority,” M.W., 725 A.2d at 731, and that

authority lies generally in Section 9721(c) of the Sentencing Code, which provides: “In

addition to the [sentencing] alternatives set forth in subsection (a) of this section 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). Specific to the case on appeal, the

authority of the sentencing court to impose restitution is codified in the Crimes Code in

Section 1106. Amendments to Section 1106 in 1995 and 199811 changed restitution from

10 Without reference to the impact on this appeal, the Commonwealth also summarizes

the concurrences in Foster. Commonwealth’s Brief at 14–16.

11Pa. L. Journal, 179th Gen. Assemb. No. 8, First Spec. Sess. (1995); H.B. 413, Printer’s

No. 3735, 182nd Gen. Assemb., Reg. Sess. (Pa. 1997).

[J-26-2020] - 12

a discretionary sentencing option to its current form, which provides, in relevant part, as

follows:

(a) General rule.--Upon conviction for any crime wherein:

(1) property of a victim has been stolen, converted or otherwise

unlawfully obtained, or its value substantially decreased as a direct

result of the crime; or

(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 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

[J-26-2020] - 13

attorney in accordance with paragraph (4) and such other

matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly

installments or according to such other schedule as it deems

just.

(iii) Shall not order incarceration of a defendant for failure to

pay restitution if the failure results from the offender’s inability

to pay.

(iv) Shall consider any other preexisting orders imposed on

the defendant, including, but not limited to, orders imposed

under this title or any other title.

* * *

18 Pa.C.S. § 1106(c)(1), (2).

Where a claim concerns the sentencing court’s exercise of discretion in fashioning

a sentence, the defendant must preserve and present the claim at trial by way of a

contemporaneous objection and/or a post-trial motion and on appeal through the process

provided by 42 Pa.C.S. § 9781(b)12 and Pa.R.A.P. 2119(f).13 Where a claim concerns

the sentencing court’s authority to impose a sentence, it is reviewable as of right on direct

12 Pursuant to this section, “[t]he defendant or the Commonwealth may file a petition for

allowance of appeal of the discretionary aspects of a sentence for a felony or a

misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance

of appeal may be granted at the discretion of the appellate court where it appears that

there is a substantial question that the sentence imposed is not appropriate under this

chapter.” 42 Pa.C.S. § 9781(b). Moreover, pursuant to 42 Pa.C.S. § 9781(f), in

challenges to the discretionary aspects of a sentence, “[n]o appeal ... shall be permitted

beyond the appellate court that has initial jurisdiction for such appeals.”

13 Prior to reaching the merits of a discretionary sentencing issue, the Superior Court

must determine, inter alia, whether an appellant’s brief has a fatal defect. Pa.R.A.P.

2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). In a brief raising a

sentencing discretion issue, an appellant must include a separate, “concise statement of

the reasons relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence.” Pa.R.A.P. 2119(f).

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appeal, without regard to preservation of the claim. Commonwealth v. Eisenberg, 98 A.3d

1268, 1275 (Pa. 2014). “[A] determination that a claim implicates the legality of a

sentence … operates to revive a claim otherwise insufficiently preserved below,” and is

reviewable by this Court on permissive appeal. Eisenberg, 98 A.3d at 1275;

Commonwealth v. Taylor, 104 A.3d 479, 489 (Pa. 2014).

In the realm of challenges to orders of restitution, M.W. is this Court’s seminal

discussion of the distinction between challenges to the legality of a restitution sentence

and the discretionary aspects of such a sentence, and the resulting impact on issue

preservation requirements. While M.W. was the first and remains the only case in which

this Court addressed the test for determining whether a challenge to an award of

restitution sounds in the legality of a sentence or the discretionary aspects of fashioning

an award, the Superior Court has on many occasions, before and since M.W., grappled

with the issue. See In the Interest of Dublinski, 695 A.2d 827, 828-29 (Pa.Super. 1997)

(collecting cases holding that restitution claim implicated discretionary aspects of

sentencing and cases holding that restitution claim implicated legality of the sentence);

Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017) (en banc) (plurality) (“Where

... statutory authority exists, however, the imposition of restitution is vested within the

sound discretion of the sentencing judge.”); Commonwealth v. Rotola, 173 A.3d 831, 834

(Pa.Super. 2017) (“An appeal from an order of restitution based upon a claim that it is

unsupported by the record challenges the legality, rather than the discretionary aspects,

of sentencing; as such, it is a non-waivable matter”).14

14 As discussed by the Superior Court in its opinion of this case, despite the clarity of the

instruction in M.W., that court has not consistently used the M.W. framework to determine

[J-26-2020] - 15

Given the clarity of M.W. and its specific application to challenges to sentences of

restitution, it is not entirely surprising that the Superior Court, in this case, did not rely on

the more recent pronouncements of this Court (which, in part, drew from M.W.) on the

appropriate framework to determine whether a challenge to a sentence is to its legality or

to its discretionary aspects. For example, in Foster15 we addressed whether a challenge

to a mandatory minimum five-year sentence16 raised in response to this Court’s decision

in Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007),17 implicated a discretionary aspect

of a sentence or its legality.18 Foster, 17 A.3d at 334. The procedural posture of the

the appropriate categorization of challenges to an award of restitution. Weir, 201 A.3d at

172. As highlighted by the Superior Court, over the course of time, a meaningless default

label, “not supported by the record,” has come to be a trigger for attempted challenges to

the legality of a restitution award and for findings of illegal sentences without regard to

whether the challenge was directed to the authority of the court to enter an award of

restitution. Id. at 172. Indeed, Weir frames his challenge as one involving the legality of

the restitution award because it is not “supported by the record.” This bare statement is

irrelevant to any analysis of the character of the challenge.

15The lead opinion was authored by Justice Baer and joined by Justices Todd and

McCaffery.

16 See 42 Pa.C.S. § 9712(a) (imposing mandatory five-year sentence of incarceration

upon person convicted of enumerated violent crime and in visible possession of firearm).

17 In Dickson, we held that 42 Pa.C.S. § 9712, which provides a mandatory minimum

sentence for visible possession of a firearm, cannot be applied to an unarmed co-

conspirator. Dickson, 918 A.2d at 108–09.

18 The terminology of “legality of sentence” and “discretionary aspects of sentencing”

is derived from 42 Pa.C.S. § 9781 - Appellate review of sentence, which provides:

(a) Right to appeal.--The defendant or the Commonwealth may appeal as

of right the legality of the sentence.

(b) Allowance of appeal.--The defendant or the Commonwealth may file a

petition for allowance of appeal of the discretionary aspects of a sentence

for a felony or a misdemeanor to the appellate court that has initial

jurisdiction for such appeals. Allowance of appeal may be granted at the

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appeal complicated, in part, the ability to formulate a majority position. Dickson was

decided while Foster was on direct appeal. The defendant in Foster did not lodge a

challenge to the imposition of the mandatory minimum in the trial court based on his status

as an unarmed co-conspirator. He raised the challenge to the sentence for the first time

in the Superior Court. The Commonwealth, although agreeing that Dickson precluded

the imposition of the mandatory minimum, argued that the sentence imposed was

nonetheless permissible as it was within the statutory maximum under the sentencing

code and thus, any challenge to the sentence was to its discretionary aspect and had to

be preserved in the trial court.

The Foster plurality drew from the Superior Court’s analysis of its and our

jurisprudence setting the traditionally narrow benchmarks for an illegal sentence: failure

to apply a statutory maximum sentence, merger of convictions for purposes of sentencing,

and double jeopardy, Foster, 17 A.3d at 342, and from those contexts, the plurality

reasoned that sentence legality issues generally arise in two instances. The first is “when

a trial court’s traditional authority to use discretion in the act of sentencing is somehow

affected, see e.g. In re M.W., 725 A.2d at 731 (when a sentencing issue “centers upon a

court's statutory authority” to impose a sentence, rather than the “court's exercise of

discretion in fashioning” the sentence, the issue raised implicates the legality of the

sentence imposed).” Foster, 17 A.3d at 342. The second is “when the sentence imposed

is patently inconsistent with the sentencing parameter set forth by the General Assembly.”

discretion of the appellate court where it appears that there is a substantial

question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S. § 9781(a), (b).

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Id. (citing Commonwealth v. Shiffler, 879 A.2d 185, 188–89 (Pa. 2005) (sentence

exceeding statutory maximum intended by General Assembly); Commonwealth v.

Aponte, 855 A.2d 800, 802 n. 1 (Pa. 2004) (same, in context of Apprendi challenge);

Commonwealth v. Andrews, 768 A.2d 309, 313 (Pa. 2001) (challenge concerning merger

or double jeopardy implicates sentences contemplated by General Assembly for

violations of Crimes Code)). Recognizing that the sentence at issue implicated the

authority of the sentencing court to impose the mandatory minimum, the Foster plurality

held that the challenge implicated the non-waivable legality of the sentence because the

trial court possessed no authority to not impose a mandatory minimum at sentencing,

which set a floor for the sentence imposed.

Of the seven-member court, three justices filed concurring opinions. Then Chief

Justice Castille (joined by Justice Orie Melvin) was of the view that the appeal presented

the question of retroactive application of Dickson and that establishing a concrete rule on

the determination of whether the challenge was to the non-waivable legality of sentence

was neither necessary nor prudent. Foster, 17 A.3d at 346 (Castille, C.J., concurring).

Justice Eakin agreed with this view. Id. at 356 (Eakin, J., concurring). Then Chief Justice

Castille opined that basing trial level issue preservation on the legality/illegality construct

of Section 9781 was not supportable. He urged that the plurality significantly redefined

the concept of an “illegal” sentence to include all but discretionary sentencing claims,

predicting that many formerly discretionary claims involving, e.g., failure to properly

calculate guideline ranges, would now fall into the legality paradigm since sentencing

courts have no discretion but to consider the guidelines. Id. at 349–50. Former Chief

Justice Castille expressed the view that the plurality significantly changed the post-trial

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and appellate issue preservation landscape. Id. at 351. He, like Justice Eakin, disagreed

that a sentence that includes the mandatory minimum can be illegal if the sentence is

otherwise within the statutory maximum.

Then Justice Saylor agreed with the Castille concurrence that the plurality’s stated

dichotomy defining the different challenges was problematic. He preferred “illegal per se”

language to capture “the thrust of the limited waiver exception pertaining to criminal

sentencing, while distinguishing the analysis from the legality/discretion dichotomy

governing the presentation of appellate claims under the Sentencing Code.” Foster, 17

A.3d at 356 (Saylor, J., concurring). He thus generally preferred a more case specific

analysis to determining an “illegal per se” sentence.

Seven years after Foster, in Barnes, when called upon to address the preservation

of a challenge to another mandatory minimum sentence19 in the wake of Alleyne v. United

States, 570 U.S. 99 (2013), this Court adopted the position of the lead opinion in Foster.

As in Foster, Barnes involved a retroactivity issue. The defendant in Barnes raised the

Alleyne challenge for the first time in this Court. Finding that the sentencing court was

without authority to enter any other sentence but the mandatory minimum, the Barnes

Court held consistent with Foster that “‘the sentencing court’s authority to act has been

infringed upon[,]’ rendering the sentence ‘illegal’ for issue-preservation purposes.”

Barnes, 151 A.3d at 125 (brackets in original) (quoting Foster, 17 A.3d at 344–45). Chief

Justice Saylor authored a concurring opinion, joined by Justice Mundy, adopting his views

19 See 42 Pa.C.S. § 9712.1 (imposing mandatory five-year sentence of incarceration

upon person in constructive possession of drugs and in close proximity to firearm).

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previously expressed in Foster. Justice Dougherty concurred expressing his agreement

with the Castille concurrence in Foster.

While Barnes generally settled the test for determining whether a challenge to a

sentence sounds in legality or the discretionary aspects of the sentence and the issue

preservation implications of those determinations, M.W. continues as viable precedent as

to the framework for classifying challenges to orders of restitution. Barnes and M.W. are

entirely consistent — 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.

Although preserving the issue in post-trial motions in the trial court, Weir did not

preserve his challenge to the restitution sentence in a Rule 2119(f) statement in the

Superior Court. Thus, reviewability of Weir’s restitution challenge necessarily hinges on

the interpretation of Section 1106, the source of the sentencing court’s authority to impose

restitution. The goal of statutory construction is to ascertain and effectuate the intent of

the General Assembly, which is best expressed through the words of the statute. 1

Pa.C.S. § 1921(a); Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009). “Every statute

shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a).

Words and phrases are to be construed “according to rules of grammar and according to

their common and approved usage[.]” 1 Pa.C.S. § 1903(a); Commonwealth v. Hall, 80

A.3d 1204, 1211 (Pa. 2013). When they are “clear and free from all ambiguity, the letter

of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.

§ 1921(b).

[J-26-2020] - 20

The plain language of Section 1106(a) makes clear, as relevant here, that a

sentencing court is required to impose restitution as a sentence upon conviction of a crime

when the victim’s property has been “substantially decreased in value as a direct result

of the crime. 18 Pa.C.S. § 1106(a). As a mandate, Section 1106(a) is consistent with

other mandatory sentencing statutes in two ways. First, it supplants a court’s traditional

authority to exercise discretion in choosing among sentencing alternatives. Foster, 17

A.3d at 344–45. Second, Section 1106(a) lends itself to a binary analysis, i.e., either it

applies or it does not apply, depending on whether the factual prerequisites for imposition

of the sentence exists. 18 Pa.C.S. § 1106(a).

In the context of issue preservation principles, Section 1106 requires an integrated

analysis of its relevant provisions. Section 1106(a) is mandatory in its directive and

removes any discretion from the sentencing court to impose restitution as punishment

upon conviction of a crime under two circumstances: where the property of a victim has

been stolen, converted or otherwise unlawfully obtained or its value has been

substantially decreased as a direct consequence of the crime, 18 Pa.C.S. § 1106(a)(1),

or where the victim, if an individual, suffered personal injury resulting from the crime, 18

Pa.C.S. § 1106(a)(2). Thus, the failure of a trial court to impose restitution where the

circumstances described in Section 1106(a)(1) or (2) are established results in an illegal

sentence. Conversely, and as relevant to a defendant’s challenge, if the statutory

circumstances are not established and the sentencing court orders restitution, the

challenge to the sentence implicates its legality. In either of these sentencing scenarios,

a challenge to the sentence of restitution need not be preserved.

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Without any elaboration, but citing to Section 1106(c)(1), Weir argues that the

restitution ordered is illegal because it awards the victim more than “full compensation”

based on alleged failures in the Commonwealth’s evidence of the loss. Section 1106(c),

Mandatory Restitution, contains four subsections, two of which are pertinent to Weir’s “full

restitution” argument. Section 1106(c)(1) provides:

(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 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). A plain reading of Section 1106(c)(1) makes clear that “full

compensation” means that the amount is to be determined based on the victim’s loss

without regard to the defendant’s resources or collateral sources of payment. In this

context, “mandatory restitution” in the title of Section 1106(c) means that restitution must

be imposed pursuant to Section 1106, regardless of the defendant’s ability to pay or

collateral payments to the victim. There is nothing within this subsection (c) that remotely

relates to the quantity or quality of the evidence necessary to establish the amount of the

victim’s loss.

Moreover, the discretionary nature of the amount of restitution is established in

Section 1106(c)(2), which sets forth the factors to be considered by the sentencing court

in fashioning an award of restitution: “… the court shall consider the extent of injury

[J-26-2020] - 22

suffered by the victim, the victim’s request for restitution as presented to the district

attorney … and such other matters as it deems appropriate.” 18 Pa.C.S. § 1106(c)(2)(i).

This language, placing the determination of the amount of restitution under the sentencing

court’s consideration based on the stated factors and “other matters it deems

appropriate,” is the clearest possible indication of the General Assembly’s recognition that

fashioning the restitution order remained in the exercise of the sentencing court’s

discretion. Weir’s discontent with the amount of restitution and the evidence supporting

it is a challenge to the sentencing court’s exercise of discretion, not to the legality of the

sentence. To access review of his challenge by the Superior Court, he was required to

file a Pa.R.A.P 2119(f) statement in his appellate brief.

Here, Weir does not mount a Section 1106(a) challenge to the sentencing court’s

authority. He does not claim that he was not convicted of a crime where the value of the

victim’s motorcycle was substantially decreased as a direct result of the crime. He

therefore has not raised a challenge to the legality of the sentence under Section 1106(a).

Because Weir 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, and he was required to preserve it pursuant to

Pa.R.A.P. 2119(f).

The decision of the Superior Court is affirmed.

Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join

the opinion.

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