Com. v. Kissinger, B.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2022
• Docket: 1676 MDA 2021
• Status: Unpublished

Opinion

J-S18028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BARBARA JEAN KISSINGER : : Appellant : No. 1676 MDA 2021

Appeal from the Judgment of Sentence Entered July 9, 2021 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000587-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 9, 2022

Barbara Jean Kissinger appeals the judgment of sentence entered

following her nolo contendere plea to two counts of aggravated cruelty to

animals.1 Kissinger claims that the trial court erred in ordering her to pay

restitution to the Huntingdon County Humane Society (“HCHS”). We affirm.

The Commonwealth charged Kissinger with multiple counts of cruelty to

animals after a multitude of cats, both deceased and alive were found in

Kissinger’s home and U-Haul truck. Kissinger pleaded nolo contendere to two

counts of aggravated cruelty to animals, on July 9, 2019. Immediately

following her plea, the trial court sentenced Kissinger to two consecutive terms

of seven years of reporting probation. The court also ordered restitution to

HCHS in the amount of $8,672.50.

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1 18 Pa.C.S.A. 5534(a)(2) J-S18028-22

Kissinger filed a timely post-sentence motion challenging the court’s

imposition of restitution. See Defendant’s Post-Sentence Motion, filed

7/19/19. The court held a hearing on the motion on September 23, 2021.

Kissinger filed a notice of appeal to this Court on December 22, 2021. The

court entered an order denying the post-sentence motion by operation of law

the same day.

Kissinger presents the following issues on appeal:

I. Whether this Honorable Court should quash this appeal as untimely, where [Kissinger’s] facially untimely appeal was caused, at least in part, by a breakdown of the processes of the court below?

II. Is the restitution order to Huntingdon County Human Society an illegal sentence?

Kissinger’s Br. at 5 (suggested answers omitted).

Kissinger’s first issue questions whether this Court should quash her

appeal as untimely. She maintains that her appeal should not be quashed

because her untimely filing of the appeal was due to a breakdown in the trial

court. Kissinger’s claim presents a question of law, specifically our subject

matter jurisdiction. Our standard of review is de novo and our scope of review

is plenary. See Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007).

When a defendant has filed a timely post-sentence motion, the court

should rule on the motion within 120 days. See Pa.R.Crim.P. 720(B)(3)(a). If

the court fails to decide the motion within 120 days, the motion is deemed

denied by operation of law. Id. In such a case, the clerk of court enters an

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order on behalf of the court noting the denial by operation of law. Pa.R.Crim.P.

720(B)(3)(c). Following this order, the defendant has 30 days to file a notice

of appeal or this Court lacks jurisdiction over the appeal. Pa.R.Crim.P.

720(A)(2)(b); Pa.R.A.P. 903(A) (providing that notice of appeal “shall be filed

within 30 days after the entry of the order from which the appeal is taken”).

Here, Kissinger filed a timely post-sentence motion on July 19, 2019.

The 120-day period for the court to act on the motion expired on November

18, 2021. See 1 Pa.C.S.A. § 1908 (excluding weekends from the computation

of time). The order noting the deemed denial of the post-sentence motion was

not entered until after Kissinger had appealed, on December 22, 2019.

Where the late filing of an appeal is due to an error in the trial court’s

processes, we will treat the appeal as timely. Here, the clerk of court should

have entered an order on November 18, 2019, denying Kissinger’s motion by

operation of law. See Pa.R.Crim.P. 720(B)(3)(c). Although Kissinger did not

appeal within 30 days of the deemed denial of her post-sentence motion, the

clerk’s failure to enter an order noting the deemed denial excuses that failing.

See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.Super. 2003). We

therefore have jurisdiction over this appeal.

Kissinger’s remaining issue challenges whether the trial court had

authority to order restitution as part of her sentence. She maintains that the

HCHS is not a “victim” as defined in the statute addressing restitution. See

18 Pa.C.S.A. § 1106. She also alleges that even if HCHS could be considered

a “victim” within the meaning of Section 1106, HCHS “is not an individual who

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suffered personal injury.” Kissinger’s Br. at 16. She alleges that the subsection

of animal cruelty to which she pled “is silent as to any civil penalty or

restitution.” Id. at 17.

“Where an appellant’s challenge is directed to the trial court’s authority

to impose restitution, it implicates the legality of the sentence.”

Commonwealth v. McCabe, 230 A.3d 1199, 1203 (Pa.Super. 2020),

affirmed, 265 A.3d 1279 (Pa. 2021). As such, “our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Melvin, 172

A.3d 14, 19 (Pa.Super. 2017) (quoting Commonwealth v. Brown, 159 A.3d

531, 532 (Pa.Super. 2017)).

“[R]estitution may be imposed either as a direct sentence, 18

Pa.C.S.[A.] § 1106(a), or as a condition of probation, 42 Pa.C.S.[A.] § 9754.”

Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa.Super. 2017) (en banc)

(quoting In re M.W., 725 A.2d 729, 732 (Pa. 1999)). Section 1106, which

Kissinger cites, governs the imposition of restitution as a direct sentence.

Here, the court ordered restitution to HCHS as a condition of Kissinger’s

probation. Conditions of probation are governed by 42 Pa.C.S.A. § 9754 and

§ 9763. These statutes together empower a sentencing court to impose

reasonable conditions on probation, including “[t]o make restitution of the

fruits of the crime or to make reparations, in an affordable amount and on a

schedule that the defendant can afford to pay, for the loss or damage caused

by the crime.” 42 Pa.C.S.A. § 9763(b)(10).

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The cruelty to animals statutes explicitly permitted the court to require

Kissinger to pay for the cost of caring for her animals. The cruelty to animals

statutes are in Title 18 of the Pennsylvania Consolidated Statutes, chapter 55,

subchapter B. These statutes provide that “[t]he cost of the keeping, care and

destruction of” any animal seized pursuant to these statutes is to be paid “by

the owner of the animal[.]” 18 Pa.C.S.A. § 5553. Section 5553 provides that

the court “imposing sentence upon a conviction for a violation of this

subchapter may require that the owner pay the cost of the keeping, care and

destruction of the animal.” Id.

Kissinger was convicted of an offense in subchapter B, Section 5534(a),

and was therefore subject to Section 5553. Kissinger does not contest that

she was the owner of the cats found in her house or U-Haul nor does she

challenge the court’s authority under Section 5553 to require her to pay for

the cats’ care. In fact, Kissinger makes no mention of the statute. Kissinger’s

cats were in her home and U-Haul and because of her lack of care, these

animals had to be treated and cared for by the HSHC. As HSHC incurred the

cost of the care, the trial court did not err by ordering Kissinger to pay HSHC

the cost as a condition of her probation. Commonwealth v. Lee, 947 A.2d

199, 201-02 (Pa.Super. 2008) (affirming order requiring defendant to pay

restitution, as condition of probation, to animal shelter for care of appellant’s

dog following conviction for cruelty to animals). We thus affirm.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/09/2022

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