Com. v. Wilcox, C.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2023
• Docket: 1446 EDA 2022
• Status: Unpublished

Opinion

J-S38013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER JAMES WILCOX : : Appellant : No. 1446 EDA 2022

Appeal from the Judgment of Sentence Entered April 13, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000068-2022

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 10, 2023

Christopher James Wilcox (“Wilcox”) appeals from the judgment of

sentence made final by the order of restitution.1 Wilcox’s counsel (“Counsel”)

has filed a petition to withdraw and an accompanying brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm and grant Counsel’s petition to withdraw.

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1 This Court may regard the imposition of a term of incarceration and the subsequent setting of restitution at a later hearing as a bifurcated sentencing proceeding. See Commonwealth v. Cochran, 244 A.3d 413, 420-21 (Pa. 2021) (distinguishing prior decisions, which held the failure to set the amount of restitution when imposing a sentence resulted in an illegal sentence). We have amended the caption to reflect that this appeal lies from the final sentencing order. J-S38013-22

Wilcox, who was represented by counsel,2 entered negotiated guilty

pleas to simple assault and criminal mischief3 after admitting that he got into

a road rage incident with Jeffrey Capaldi (“the victim”), punched the victim in

his face, and “caused damage to the victim’s vehicle,” including what

“appeared to be a scratch or dent . . . and a dent on the finish of the vehicle.”

N.T. Plea Hearing, 3/17/22, at 2. Following a thorough colloquy, the trial

court accepted Wilcox’s pleas, imposed the agreed-upon aggregate term of

two years of probation, and, pursuant to the parties’ negotiations, deferred its

determination of restitution for a later hearing.

On April 13, 2022, the trial court convened a restitution hearing at which

the victim testified that he was driving his BMW when Wilcox, who was driving

a motorcycle, began tailgating him. When the victim pulled over and rolled

down his window to see what was wrong, Wilcox pulled up next to the victim’s

car, punched him through the open window, and in the process, dented the

victim’s driver’s-side door with the handlebar of the motorcycle. See N.T.

Restitution Hearing, 4/13/22, at 4-5. The victim further testified that his car,

which had less than 25,000 miles on it, was in perfect condition before the

incident. See id. at 6.

2Wilcox had been represented by different attorneys in the public defender’s office throughout this case.

3 18 Pa.C.S.A. §§ 2701(a)(1), 3304(a)(5).

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The victim provided three different estimates he received to repair his

car. See id. at 6-7. All three estimates included costs for work beyond the

door that Wilcox had dented and scratched, and the two more expensive

estimates included painting the entire side of the car to “guarantee a perfect

match of paint all the way around.” Id. at 14. The victim chose the shop with

the least expensive estimate, which involved painting “that one area around

the door without having to do the back door with the front bumper, headlight,

[and] all of that.” Id. at 14-15. The trial court found that the victim

conscientiously sought the lowest cost for the repairs and imposed restitution

in the amount of $1,604.31, the actual cost of repair charged by the repair

shop the victim selected. See id. at 19-20. Wilcox timely filed a post-

sentence motion,4 which the trial court denied. Wilcox timely appealed, and

Counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders

brief.

When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.

2010). Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw from representation, she must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has ____________________________________________

4 The tenth day after the final sentencing hearing fell on a Saturday, and Wilcox timely filed his post-sentence motion on the following Monday. See 1 Pa.C.S.A. § 1908.

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determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(internal citation omitted). In Santiago, our Supreme Court addressed the

second requirement of Anders, i.e., the contents of an Anders brief, and

required that the brief:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the trial

court’s proceedings and render an independent judgment as to whether the

appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (internal

citation omitted).

Here, Counsel avers in her petition to withdraw that she has reviewed

the entire record and concluded that the appeal is frivolous. Counsel further

avers that she mailed Wilcox a copy of the petitions and the Anders brief, as

well as correspondence explaining Wilcox’s right to retain private counsel or

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proceed pro se and raise any additional arguments he believes are

meritorious.5 Counsel’s Anders brief includes a summary of the facts and

procedural history of the case, identifies the issue that could arguably support

Wilcox’s appeal, and Counsel’s analysis of why the issue lacks merit, with

citations to the record and legal authority. We conclude Counsel has

substantially complied with the requirements of the Anders procedure.

Accordingly, we will conduct an independent review to determine whether this

appeal is wholly frivolous.

Counsel identifies the following issue for our review:

Did the trial court abuse its discretion in ordering [Wilcox] to pay restitution in the amount of $1604.31 when there was insufficient evidence of record to show that the performed repair covered only the driver’s side door damaged by Wilcox?

Anders Brief at 3.

The following principles govern our review from a challenge to the

imposition of restitution as part of a sentence. “[T]he primary purpose of

restitution is rehabilitation of the offender by impressing upon him that his

criminal conduct caused the victim’s loss or personal injury and that it is his

responsibility to repair the loss or injury as far as possible.” Commonwealth

v. Solomon, 247 A.3d 1163, 1170 (Pa. Super. 2021) (en banc) (internal

citation and quotations omitted), appeal denied, 274 A.3d 1221 (Pa. 2022); ____________________________________________

5 We note that Counsel wrote the letter attached to her petition to withdraw before filing her Rule 1925(c)(4) statement and the Anders brief. However, the letter explained Wilcox’s rights throughout this direct appeal, including his right to file a responsive brief either pro se or with private counsel’s assistance.

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see also 18 Pa.C.S.A. § 1106(c)(1) (requiring the court to order “full

restitution . . . so as to provide the victim with the fullest compensation for

the loss”). As it relates to property damage, restitution “can be made by

either the return of the original property or the payment of money necessary

to replace, or to repair the damage to, the property.” Solomon, 247 A.3d at

1170 (internal citation and quotations omitted). Challenges to a restitution

order may go to the legality of the sentence, i.e., the trial court’s statutory

authority to impose restitution under section 1106(c)(1), or the discretionary

aspects of the sentence, i.e., the trial court’s determination of the amount of

restitution. See Commonwealth v. Weir, 239 A.3d 25, 38 (Pa. 2020).

A defendant’s “discontent with the amount of restitution and the

evidence supporting it is a challenge to the sentencing court’s exercise of

discretion” and constitutes a challenge to the discretionary aspects of the

sentence. Id. When a court imposes restitution as part of a sentence, “there

must be a direct nexus between the restitution ordered and the crime for

which the defendant was convicted.” Solomon, 247 A.3d at 1170 (internal

citation and quotations omitted). To determine the correct amount of

restitution, a court must use a “but-for” test: “damages which occur as a direct

result of the crimes are those which would not have occurred but for the

defendant’s criminal conduct.” Commonwealth v. Poplawski, 158 A.3d

671, 674 (Pa. Super. 2017) (internal citation omitted).

Here, there is no dispute that Wilcox damaged the victim’s car, the

victim’s car needed repair, and the trial court had the statutory authority to

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impose restitution for the costs of restoring the victim’s car to its pre-incident

condition. See 18 Pa.C.S.A. § 1106(c)(1). Counsel notes that Wilcox believes

the restitution order was excessive because it was not limited to the cost of

repairing the specific dents and scratches he caused to the door. We agree

with Counsel’s assessment that Wilcox’s intended claim goes to the

discretionary aspects of the sentence, and we will review it as such.

It is well settled that a challenge to the discretionary aspects of a

sentence does not entitle an appellant to review as of right. See

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Rather,

such a challenge must be considered a petition for permission to appeal. See

Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019).

Before reaching the merits of a discretionary sentencing issue,

[w]e conduct a four-part analysis to determine: (1) whether [the] 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 [the] appellant’s brief has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (internal citation and brackets omitted).

Wilcox preserved his challenge to the amount of restitution in a timely

post-sentence motion and timely appealed. Additionally, Counsel has included

in the Anders brief a Rule 2119(f) statement, and our Court has stated that

a challenge to the amount of restitution set by the trial court presents a

substantial question. See Solomon, 247 A.3d at 1167. Therefore, we may

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review Wilcox’s intended claim that the trial court imposed an excessive

amount of restitution.

In reviewing a challenge to the discretionary aspects of sentence, we

are mindful that to prevail, the appellant must demonstrate that the

sentencing court abused its discretion:

In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, [the a]ppellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Discretion is abused in ordering speculative or excessive restitution or entering a restitution award not supported by the record.

Solomon, 247 A.3d at 1168 (internal citations and quotations omitted).

As noted above, Wilcox does not dispute that he damaged the victim’s

car. See N.T. Plea Hearing, 3/17/22, at 2. Rather, Wilcox’s intends to

challenge the amount of restitution as excessive because it included payment

for work not limited to the dent and scratches he caused to the victim’s car

door. However, the trial court heard and credited evidence that the damage

Wilcox caused necessitated additional work to match the color of the repairs

to the rest of the car and restore the car to its pre-accident condition. See

N.T. Restitution Hearing, 4/13/22, at 6-7, 14-15. The trial court also credited

the victim’s testimony that he conscientiously shopped for the best price to

repair his car and scrupulously chose the least extensive and least costly repair

that restored his car to a condition before the incident and thus provided the

fullest compensation for the loss. See id. at 19; see also 18 Pa.C.S.A. §

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1106(c)(1); Poplawski, 158 A.3d at 674. Based on this record, we agree

with Counsel’s assessment that a challenge to excessiveness of the $1,604.31

in restitution lacks any support in the law or the record.

Thus, we conclude that the sole issue on appeal identified in this appeal

is frivolous. Moreover, our independent review of the record reveals no

additional issues of arguable merit in this appeal. Accordingly, we affirm the

judgment of sentence and grant Counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/10/2023

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