Com. v. Kristiansen, T.

• Court: Superior Court of Pennsylvania
• Decided: June 13, 2024
• Docket: 2107 EDA 2023
• Status: Unpublished

Opinion

J-S09041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY M. KRISTIANSEN : : Appellant : No. 2107 EDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000469-2022

BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED JUNE 13, 2024

Tony M. Kristiansen (“Kristiansen”) appeals from the judgment of

sentence entered by the Monroe County Court of Common Pleas (“trial court”)

following his guilty plea to conspiracy to commit receiving stolen property.1

On appeal, Kristiansen challenges the portion of his sentence ordering him to

pay $20,357.38 in restitution. Because we conclude that the trial court’s

restitution order was illegal, we vacate the portion of Kristiansen’s judgment

of sentence imposing restitution and remand this matter to the trial court for

further proceedings.

On December 6, 2021, the Pennsylvania State Police (“PSP”) responded

to a report of a suspicious vehicle at 3064 Creek Road, Price Township, Monroe

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1 18 Pa.C.S. § 903(a)(1). J-S09041-24

County. Affidavit of Probable Cause, 2/1/2022, at 2. The complainant, Adam

Niewood (“Niewood”), informed the PSP that two males were sitting in a black

2005 BMW on private property that he watches for the owner. Id. Upon

arriving at the scene, police encountered Kristiansen walking on the roadway

away from the scene. Id. The police detained Kristiansen and returned him

to the scene where Niewood identified him as one of the individuals who was

in the BMW. Id. When the police questioned Kristiansen about the car, he

stated that his friend, Duane Edward Green, Jr. (“Green”), had offered to give

him a ride in it earlier in the day. Id. A few hours later, the PSP discovered

that the owner of the 2005 BMW was Sibum’s Auto Salvage (“Sibum’s”), who

had reported it stolen. Sibum’s also reported two other vehicles stolen—a

2003 BMW and a 2005 Volkswagen Jetta. Id.

On December 10, 2021, the PSP recovered the 2003 BMW during a

traffic stop. Id. The operator of the car was Bradley Moore (“Moore”), an

individual police knew to be an associate of Green. Id. On January 24, 2022,

the PSP interviewed Green regarding the two stolen BMWs after they had

arrested him earlier in the day for stealing gasoline. Id. Green told police

that Kristiansen had brought both BMWs to his home because he lived with

Moore, who was a good mechanic, and Kristiansen wanted to have Moore work

on the vehicles. Id. Green admitted to police that he drove the 2005 BMW,

but claimed that he was not involved in stealing them from Sibum’s. Id. at

3.

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On February 1, 2022, Kristiansen was arrested and charged with one

count of receiving stolen property and two counts of conspiracy to commit

receiving stolen property, all of which solely related to the theft of the 2005

BMW. On March 10, 2023, Kristiansen pled guilty to one count of conspiracy

to commit receiving stolen property. In exchange for his plea, the

Commonwealth withdrew his remaining charges.

On July 14, 2023, the trial court sentenced Kristiansen to 14 to 48

months in prison and ordered him to pay $20,357.38 in restitution to Sibum’s.

The basis of the trial court’s restitution order was Sibum’s victim impact

statement, which included the full value of both the 2005 BMW and the 2005

Volkswagen Jetta, as well as several items that were allegedly stolen from

Sibum’s in the months prior to the events of this case, such as batteries,

various tool sets, and approximately fifty catalytic converters. See Victim

Information for Restitution, 5/18/2023. Kristiansen timely appealed to this

Court and presents the following issue for our review:

Did the trial court abuse its discretion by ordering restitution of $20,357.38 to [Sibum’s], based on a written request from the [v]ictim and without a hearing, when [Kristiansen] pled guilty to [c]onspiracy-[r]eceiving [s]tolen [p]roperty, graded as a misdemeanor of the first degree, in relation to the BMW that had been stolen that was listed in the criminal charges and was the only item included in the criminal charges, where the restitution amount included items that [Kristiansen] nor co-defendants had been charged with stealing, and the specific restitution for the impound fees for the BMW was $225.00 and the BMW had been returned with no indication that it was in any worse condition than prior to being stolen, therefore making the restitution amount an illegal sentence?

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Kristiansen’s Brief at 5.

A challenge to a court’s restitution order can be construed as either a

challenge to the legality or the discretionary aspects of a sentence, depending

on the nature of the argument raised. See Commonwealth v. Weir, 239

A.3d 25, 28 (Pa. 2020) (recognizing “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”). Illegal sentence

claims, i.e., those concerning “the sentencing court’s authority to impose a

sentence[,]” are not waivable and this Court may raise and review an illegal

sentence claim sua sponte. Id. at 34; Commonwealth v. Ramos, 197 A.3d

766, 768 (Pa. Super. 2018). Conversely, an appellant does not have an

absolute right to pursue a challenge to the discretionary aspects of a sentence.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) (en

banc). Where a claim challenges the sentencing court’s exercise of discretion,

“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) and Pa.R.A.P. 2119(f).” Weir,

239 A.3d at 34. The question of whether a claim implicates the legality of a

sentence presents a question of law where our scope of review is plenary, and

our standard of review is de novo. Id. at 30.

“[T]he authority of the sentencing court to impose restitution is codified

in the Crimes Code in [s]ection 1106.” Weir, 239 A.3d at 34. Section 1106

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defines restitution as “[t]he return of property of the victim or payments in

cash or the equivalent thereof pursuant to an order of court.” 18 Pa.C.S. §

1106(h).

Section 1106 provides, in pertinent 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. ...

(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. § 1106(a)(1)-(2), (c)(1)(i), (c)(2)(i).

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In Weir, our Supreme Court addressed the question of how to interpret

a claim challenging a trial court’s restitution order. The Court first explained

that its decision In the Interest of M.W., 725 A.2d 729 (Pa. 1999), “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.” Weir, 239 A.3d at

34. The Court stated that the decision in M.W. set forth a clear test for

determining the nature of a claim challenging a restitution order: “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.” Id. (quoting M.W., 725 A.2d at 731 n.4)

(emphasis added).

Our Supreme Court went on to explain these principles within the

context of section 1106:

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 [s]ection 1106(a)(1) or (2) are established results in an illegal sentence. Conversely, … if the statutory circumstances are not established and the sentencing court orders restitution, the challenge to the sentence implicates

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its legality. In either of these sentencing scenarios, a challenge to the sentence of restitution need not be preserved.

Weir, 239 A.3d at 37-38.

In contrast, the Court explained, a challenge purely to the amount of

restitution ordered, i.e., the value or the extent of injury or loss suffered by a

victim, implicates the sentencing court’s discretion. Id. at 38. An appellant

must properly preserve such a claim. See Buterbaugh, 91 A.3d at 1265,

Here, Kristiansen argues that the trial court did not have the authority

to impose $20,357.38 in restitution. Kristiansen’s Brief at 10-11, 13.

Kristiansen maintains that his charges and conviction stem solely from the

theft of the 2005 BMW, which Sibum’s ultimately recovered unharmed. Id.

at 10. Consequently, Kristiansen contends that the trial court could not order

him to pay restitution for any of the other vehicles Sibum’s reported as stolen

or the litany of other items (batteries, various tools, and catalytic converters,

etc.) missing from Sibum’s, none of which Kristiansen was charged with or

convicted of stealing. Id. at 10-11, 13.

Although Kristiansen challenges the amount of the restitution order, he

does so on the basis that the trial court did not have the statutory authority

to impose restitution for property he was never charged with or convicted of

stealing. See Kristiansen’s Brief at 10-13. Thus, based on Weir, Kristiansen’s

challenge to the restitution the trial court imposed in this case is a challenge

to the legality of his sentence. See Weir, 239 A.3d at 37-38. “Because the

legality of a sentence presents a pure question of law, our scope of review is

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plenary, and our standard of review is de novo.” Commonwealth v.

Derrickson, 242 A.3d 667, 673 (Pa. Super. 2020) (citation omitted).

The record reflects that Kristiansen was charged with one count of

receiving stolen property and two counts of conspiracy to commit receiving

stolen property. See Criminal Complaint, 2/1/2022, at 2. Each of these

charges related to the theft of the 2005 BMW. See id. Ultimately, Kristiansen

pled guilty to one count of conspiracy to commit receiving stolen property.

See Guilty Plea Colloquy, 3/10/2023. The victim impact statement submitted

for the pre-sentence investigation report, however, contained numerous items

for which Kristiansen was never charged with stealing, including two heavy

duty batteries for machinery, multiple lithium batteries, several tool sets, and

approximately fifty catalytic converters. See Victim Information for

Restitution, 5/18/2023. Sibum’s claimed that these items were stolen in the

month prior to the vehicles at issue in this case. See Affidavit of Probable

Cause, 2/1/2022, at 3. The victim impact statement also included the value

of both the 2005 BMW, which the record reveals the PSP recovered unharmed,

and the 2005 Volkswagen Jetta. See id. at 2; see also Victim Information

for Restitution, 5/18/2023. It is unclear from the record whether Sibum’s ever

recovered the 2005 Volkswagen Jetta.

At sentencing, while the parties discussed the issue of restitution,

Kristiansen’s counsel argued that the amount of restitution sought by the

victim was inappropriate, and that Kristiansen should only be responsible for

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the costs of impounding and recovering the 2005 BMW, as that was the only

item he was charged with stealing. N.T., 7/14/2023, at 3-4. Tellingly, when

the trial court asked for the Commonwealth’s view of the victim impact

statement, the Commonwealth responded “that [if] there is nothing in that

complaint linking [Kristiansen] to that much loss[,] it would be difficult for us

to ask for it.” Id. at 7-8. The trial court directly acknowledged that

Kristiansen was not charged for the theft of nearly all of the items set forth in

the victim impact statement, stating, “[t]o be blunt, I do not think any of [the

defendants] were charged for those materials[.]” Id. at 8. The court,

nonetheless, chose to order restitution in the full amount listed in the victim

impact statement because Kristiansen was convicted of a conspiracy. Id. at

9, 13.

It is correct that “restitution may be imposed upon a conspirator for the

acts of his fellow conspirators done within the course of the conspiracy.”

Commonwealth v. Mathis, 464 A.2d 362, 368 (Pa. Super. 1983). Our

Court, however, has also held that for a court to have the authority to impose

restitution where the victim suffered a loss, the loss or damages that occurred

must be a direct result of the defendant’s criminal conduct. Commonwealth

v. Poplawski, 158 A.3d 671, 674 (Pa. Super. 2017); see also 18 Pa.C.S. §

1106(a)(1).

Based upon the record before us, the trial court imposed restitution for

the loss of property that was not the result of criminal activity for which

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Kristiansen was charged or convicted. Kristiansen’s charges and conviction

related solely to the theft of the 2005 BMW. The trial court’s restitution order,

however, holds Kristiansen fully responsible for costs related to property that

was either returned to Sibum’s unharmed, that was stolen from Sibum’s at a

time unrelated to the instant matter, or the status of which is currently

unknown. We therefore conclude that the trial court did not have the authority

to impose $20,357.38 in restitution, and, consequently, that its restitution

order was illegal. Accordingly, we vacate the portion of Kristiansen’s judgment

of sentence that requires him to pay $20,357.38 in restitution and remand

this matter to the trial court to impose restitution for Sibum’s losses that can

be directly attributed to Kristiansen’s criminal activity, in accordance with

section 1106.

Judgment of sentence affirmed in part and vacated in part. Case

remanded with instructions. Jurisdiction relinquished.

Date: 6/13/2024

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