Com. v. Tootle, B.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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BRIAN TOOTLE :

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Appellant : No. 2420 EDA 2025

Appeal from the PCRA Order Entered August 8, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014103-2012

BEFORE: SULLIVAN, J., BECK, J., and BENDER, P.J.E. MEMORANDUM BY BECK, J.: FILED SEPTEMBER 8, 2026 Brian Tootle (“Tootle”) appeals pro se from the order entered by the Philadelphia County Court of Common Pleas (“trial court”) dismissing his motion to compel. Tootle argues that his restitution sentence is illegal and he should be reimbursed his restitution payments as a result. Finding no illegality, we affirm.

On July 27, 2012, Tootle and another individual opened fire on Gerald Jones (“Jones”) and Nafis Armstead (“Armstead”). Armstead died as a result of the gunshot wounds; Jones was shot five times. Police arrested Tootle and the Commonwealth charged him with numerous crimes. Following trial, the jury found Tootle guilty of first-degree murder, criminal conspiracy, carrying a firearm without a license, carrying a firearm on the public streets of Philadelphia, and possessing an instrument of crime. The trial court sentenced

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him to an aggregate term of life in prison without parole. Additionally, the trial court ordered Tootle to pay $4,500 in restitution and court costs. This Court affirmed the judgment of sentence and our Supreme Court denied allowance of appeal on June 1, 2017. Commonwealth v. Tootle, 3030 EDA 2014, 2016 WL 6459816 (Pa. Super. Nov. 1, 2016), appeal denied, 169 A.3d 559 (Pa. 2017).

Tootle filed a timely, counseled petition pursuant to the Post Conviction Relief Act (“PCRA”)1 on May 18, 2018, raising several claims of ineffective assistance of counsel. The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing and subsequently dismissed the petition. This Court affirmed the PCRA court’s decision. Commonwealth v. Tootle, 251 A.3d 1273 (Pa. Super. 2021) (non-precedential decision).

On January 24, 2025, Tootle filed a motion to compel pro se, requesting reimbursement of his restitution payments. The trial court deemed this motion to be Tootle’s second PCRA petition. On April 5, 2025, Tootle filed a supplement to his motion. Thereafter, the trial court issued a Rule 907 notice of its intent to dismiss Tootle’s PCRA petition without a hearing and dismissed it on August 8, 2025. Tootle filed a timely appeal.

Tootle raises the following issues for our review:

1) Did the lower court err in interpreting [Tootle’s] “motion to compel” as an “untimely PCRA” where a challenge to the

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1 42 Pa.C.S. §§ 9541-9546

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legality of the court cost and fines is “outside the ambit of the PCRA” and “not subject to its time constraints?”

2) Where an illegal sentence is both, a “nonwaivable claim” and a “question of law,” is a post sentence motion an adequate means for relief to vindicate [Tootle’s] rights to due process and equal protection, due to the illegal sentence emanating from the sentencing court’s “noncompliance” with the statutory preconditions to its sentencing authority?

Tootle’s Brief at 2.

First, Tootle contends that the trial court erred in treating and dismissing his motion to compel as an untimely PCRA petition. Id. at 4-6. We agree.

This Court has held that a challenge to the legality of a restitution order is “outside the ambit of the PCRA” and “not subject to its time constraints.” Commonwealth v. Thomas, 340 A.3d 1053, 1058 (Pa. Super. 2025); accord Commonwealth v. Wright, 346 A.3d 806, 809 (Pa. Super. 2025). “[R]ather, [18 Pa.C.S. §] 1106[2] permits a defendant to seek a modification or amendment of the restitution order at any time directly from the trial court, and creates an independent cause of action.” Wright, 346 A.3d at 809

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2 “There are two statutory bases for a restitution order: restitution may be imposed as part of a direct sentence under the Crimes Code, see 18 Pa.C.S. § 1106, or as a condition of probation under the Sentencing Code, see 42 Pa.C.S. §§ 9754, 9763(b)(10).” Clark v. Peugh, 257 A.3d 1260, 1268 (Pa. Super. 2021). The record reflects that the trial court sentenced Tootle to pay restitution as part of his direct sentence. See Sentencing Order, 9/12/2014 (stating that the sentence included court costs and restitution of $4,500); see also Tootle’s Reply Brief at 4 (acknowledging that “restitution, cost[,] and fines were imposed as a direct part of his sentence”) (cleaned up); Supplement to Motion to Compel, 4/5/2025, at 1; Motion to Compel 1/24/2025, 1-2.

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(cleaned up; footnote added). Thus, the trial court improperly treated Tootle’s motion as an untimely PCRA petition.

Next, Tootle argues that his restitution claim implicates the legality of his sentence. Tootle’s Brief at 6-9.3 He argues that the trial court imposed the restitution award without determining his ability to pay. Id. at 6; Tootle’s Reply Brief at 5-6, 7. He requests that we remand the matter for the trial court to address his motion to compel. Tootle’s Brief at 9.

Under section 1106(a), “[u]pon conviction for any crime wherein … 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)(2). The law requires that “[t]he court shall order full restitution … [r]egardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.” Id. § 1106(c)(1)(i).

Under section 1106, the trial court was thus obligated to impose restitution, without considering Tootle’s financial resources. See id.; see also Thomas, 340 A.3d at 1058 (stating section 1106 “requires the court to impose restitution without regard to [a]ppellant’s financial resources”). “Since [Tootle’s] sole basis for his request for modification was that the court failed

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3 In his brief, Tootle also baldly asserts that 42 Pa.C.S. § 9542 is unconstitutional. Tootle’s Brief at 7-8. As we have already decided that the PCRA is not applicable to the instant claim, however, we need not address this contention. See Thomas, 340 A.3d at 1058.

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to consider his ability to pay [under section 1106], [Tootle] has supplied no basis to find fault in the trial court’s refusal to disturb the restitution component of his sentence.” Thomas, 340 A.3d at 1058.

Accordingly, despite the trial court improperly treating Tootle’s motion as a PCRA petition, we affirm its order. See id. (concluding that although the trial court erred in treating motion to set aside restitution as a PCRA petition, appellant’s motion requesting the court determine his ability to pay restitution provided no viable claim for relief and therefore the trial court properly dismissed the motion); see also Commonwealth v. Parker, 249 A.3d 590, 595 (Pa. Super. 2021) (“To the extent our legal reasoning differs from the lower court’s, we note that as an appellate court, we may affirm on any legal basis supported by the certified record.”) (cleaned up).

Order affirmed.

Date: 9/8/2026