Com. v. Wissinger, B.

• Court: Superior Court of Pennsylvania
• Decided: January 2, 2020
• Docket: 789 WDA 2019
• Status: Unpublished

Opinion

J-A29037-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDON SCOTT WISSINGER : : Appellant : No. 789 WDA 2019

Appeal from the Judgment of Sentence Entered January 10, 2019 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000160-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020

Brandon Scott Wissinger (Wissinger) appeals from the judgment of

sentence imposed by the Court of Common Pleas of Butler County (trial court)

following his entry of a guilty plea to Receiving Stolen Property (RSP).1

Wissinger challenges the trial court’s restitution award. We vacate the

restitution award and remand for resentencing.

This case stems from the brutal robbery of 73-year old Robert Patterson

(Patterson) in his home. On December 2, 2017, at approximately 6:22 a.m.,

Patterson answered his door when his doorbell rang, expecting to see a family

member. Instead, Wissinger’s cohorts, Michael Karch (Karch) and David

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3925(a). J-A29037-19

Boggs (Boggs), forced their way into the home, while Wissinger and Janet

Greiner waited outside in a truck. Karch and Boggs hit Patterson over the

head twice with a gun and beat him for 50 minutes before tying him up. They

then took a number of items from the home and fled in the truck.

Wissinger was charged with five counts of conspiracy (to commit

burglary, robbery, theft, aggravated assault and simple assault) and one

count of RSP. On December 6, 2018, he entered a guilty plea to the RSP

offense only that involved the receipt of 12 firearms belonging to Patterson.

The Commonwealth dismissed the conspiracy charges. On January 10, 2019,

the trial court sentenced Wissinger to a term of not less than 27 nor more

than 54 months of imprisonment. The court also ordered Wissinger to pay

Patterson, jointly and severally with his co-defendants, restitution the amount

of $15,779.00 though later amended to $15,429.00.2 Wissinger timely

appealed and he and the trial court complied with Rule 1925. See Pa.R.A.P.

1925(a)-(b).

On appeal, Wissinger argues that the restitution award was improperly

calculated because the amount imposed was not a direct result of the crime

to which he pled guilty. He contends that, at most, the record supports

restitution in the amount attributable to the firearms only.

2 The court also ordered Wissinger to pay $4,774.80 to the Victim Compensation Assistance Program. Defense counsel did not contest this assessment.

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“Initially, we note that when a defendant enters a guilty plea, he or she

waives all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super.

2012) (citation omitted). “In the context of criminal proceedings, an order of

restitution is not simply an award of damages, but, rather, a sentence.” Id.

(citation omitted). An appeal from an order of restitution based on a claim

that a restitution order is unsupported by the record challenges the legality of

the sentence. See id. The determination as to whether the trial court

imposed an illegal sentence is a question of law, and our standard of review

is plenary. See id. Additionally, a restitution award must be strictly

scrutinized because its purpose is primarily punitive. See Commonwealth

v. Hunt, 2019 WL 4783495, at *4 (Pa. Super. filed Oct. 1, 2019).

Section 1106 of the Crimes Code, governing restitution for injuries to

person or property, 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.

***

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(c) Mandatory restitution.—

(1) The court shall order full restitution . . . .

(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), (2)(i).

“[R]estitution is proper only if there is a direct causal connection

between the crime and the loss.” Commonwealth v. Lekka, 210 A.3d 343,

358 (Pa. Super. 2019) (citation omitted). “Because restitution is a sentence,

the amount ordered must be supported by the record, and may not be

speculative.” Id. (citation omitted). “In addition, the amount of restitution

awarded must be determined under the adversarial system with

considerations of due process.” Id. (citation omitted). Due process concerns

are implicated when the losses for which restitution has been imposed did not

arise from the action for which the defendant has been held criminally

accountable. See Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa Super.

1983).

“[A]ny restitution ordered must flow from only those crimes for which a

defendant is convicted, and not any underlying, unproven, conduct.”

Commonwealth v. Zrncic, 167 A.3d 149, 152 (Pa. Super. 2017) (citation

omitted; emphasis added). “Section 1106 requires a ‘direct nexus’ between

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the loss claimed and the crime for which Appellant was convicted[.]” Id.

at 153 (citation omitted; emphasis in original). “In a case of theft by receiving

stolen property, a reviewing court will not countenance a sentence provision

which requires restitution for property which the Commonwealth has not

proven was either stolen or received by the [defendant].” Commonwealth

v. Reed, 543 A.2d 587, 589 (Pa. Super. 1988) (citation omitted).

As previously noted, Wissinger pled guilty to RSP of a number of

firearms. (See Plea Agreement, 12/06/18; Information, 3/02/18, at Count

4). At the restitution hearing, Patterson explained that he has been collecting

firearms since about 1960, and that he owns pistols, rifles and shotguns. (See

N.T. Hearing, 4/10/19, at 23). He described for the court, to the best of his

ability, each firearm that was missing and the amount that he paid for it or its

value. (See id. at 15). Patterson further testified that his loss attributable to

the stolen guns was $7,000.00. (See N.T. Hearing, 4/10/19, at 14-24; see

also Trial Court Opinion, 4/23/19, at 1-2).3

Because Wissinger pled guilty only to the RSP charge and not on any of

the dismissed conspiracy charges, the record does not support the restitution

ordered of $15,429.00. However, through Patterson’s testimony, there is

sufficient evidence to support an award of $7,000.00 for the loss of the guns.

3There is some discrepancy in the record as to whether 12 or 13 firearms were taken. However, Patterson testified that his loss related to the guns was $7,000.00.

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Accordingly, we vacate the restitution order awarding $15,429.00 to Patterson

and remand to the trial court for entry of an Amended Order awarding

restitution in the amount of $7,000.00.

Restitution order vacated. All other aspects of Judgment of Sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/2/2020

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