Com. v. Youmans, K.

Opinion

J-S07008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAITLYN MICHELLE YOUMANS : : Appellant : No. 2748 EDA 2022

Appeal from the Judgment of Sentence Entered May 23, 2022 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000946-2020

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 4, 2023

Appellant, Kaitlyn Michelle Youmans, appeals from the May 23, 2022

Judgment of Sentence of 12 months of supervised probation and restitution

entered in the Carbon County Court of Common Pleas following her guilty plea

to Disorderly Conduct.1 Following this Court’s consideration of counsel’s

Petition to Withdraw as Counsel and Anders2 Brief, we denied counsel’s

Petition to Withdraw and remanded for counsel to file an advocate’s brief

limited to Appellant’s challenge to her sentence of restitution. Counsel has

complied with our directive, and we proceed to consider the propriety of the

court’s imposition of a restitution sentence.

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1 18 Pa.C.S. § 5503(a)(4).

2 Anders v. California, 386 U.S. 738 (1967). J-S07008-23

As the parties are familiar with the facts and procedural history, we need

not restate them in detail here. Briefly, on May 23, 2022, Appellant appeared

for a hearing to plead guilty to Disorderly Conduct. At the hearing, the trial

court confirmed that Appellant had knowingly, intelligently, and voluntarily

completed a guilty plea colloquy form. The court also conducted an oral guilty

plea colloquy and, satisfied that Appellant was entering the plea knowingly,

intelligently, and voluntarily, the court accepted her plea. The Commonwealth

informed the court that Appellant’s victim, Deric Tomasovich, sought $1,716

in restitution for lost wages. Appellant disputed Mr. Tomasovich’s entitlement

to restitution, stating as follows:

[N]ot for nothing I was married to Mr. Tomasovich for four years. He didn’t work in that entire almost four years we were married. He refused to pay child support when child was in my care because he claimed he was unemployed so now he is magically claiming he was fired from a job because of my actions. He didn’t have a steady work history to begin with. I was the sole financial provider.

N.T. Guilty Plea Hr’g, 5/23/22, at 7-8.

Because Appellant did not agree to the Commonwealth’s request for

restitution,3 the court informed Appellant that it could either schedule a

restitution hearing for another day and defer sentencing until after the

restitution hearing or impose her custodial and restitution sentences that day, ____________________________________________

3 The trial court later characterized Appellant’s objection as a challenge to the

amount of the restitution rather than to Mr. Tomasovich’s entitlement to it. N.T. Guilty Plea Hr’g, 5/23/22, at 8. It is clear from our review of the notes of testimony that Appellant’s initial objection was to the court’s authority to impose restitution in light of Appellant’s belief that Mr. Tomasovich was not entitled to it.

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and she could file a post-sentence motion challenging the award of restitution.

Appellant consulted with her counsel, informed the court that she wished to

be sentenced that day, and stated “[i]f you want to file a post-trial motion,

Mr. Wiltrout, I’d appreciate that.” Id. at 9.

The court then sentenced Appellant to serve 12 months of probation to

run concurrently to a Schuylkill County sentence that she was already serving

and to pay $1,716 in restitution to Mr. Tomasovich. Appellant did not file a

post-sentence motion.

Appellant timely appealed. On March 23, 2023, this Court filed a

memorandum opinion agreeing with counsel that Appellant’s challenges to

venue in Carbon County, the voluntariness of her plea, and her claim that she

was immune from prosecution, were frivolous. Appellant also challenged the

imposition of a sentence of restitution. Because we disagreed with counsel

that this issue was frivolous, we remanded for counsel to file an advocate’s

brief.

In her Advocate’s Brief, Appellant asserts that she is “not responsible

for the restitution granted to Deric Tomasovich.” Appellant’s Advocate’s Brief

at 3.

The Commonwealth bears the burden of proving entitlement to

restitution. Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super.

2010). A claim that the imposition of restitution is unsupported by the record

challenges the legality of a defendant’s sentence. Commonwealth v. Hunt,

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220 A.3d 582, 585 (Pa. Super. 2019). Our standard of review is, therefore,

de novo, and our scope of review is plenary. Id.

The record must support the amount of restitution ordered.

Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004). “When

fashioning an order of restitution, the lower court must ensure that the record

contains the factual basis for the appropriate amount of restitution.”

Atanasio, 997 A.2d at 1183.

As explained above, at the guilty plea hearing the Commonwealth

requested the court award restitution to Mr. Tomasovich, Appellant’s victim.

Appellant disputed the appropriateness of an award of restitution in light of

Mr. Tomasovich’s alleged inconsistent work history and the speciousness of

his lost wages claim. Nevertheless, the trial court directed Appellant to pay

$1,716 in restitution to Mr. Tomasovich “based on information received from

the victim and submitted by the Commonwealth during the sentencing

hearing.” Trial Ct. Op., 8/22/22, at 9. The trial court did so without first

holding a hearing to obtain testimony from Mr. Tomasovich or documentary

evidence supporting the Commonwealth’s restitution request. In the absence

of such evidence, we conclude that the record lacks the requisite factual basis

to support the restitution award to Mr. Tomasovich. We, thus, vacate the

restitution portion of Appellant’s sentence and remand for a hearing on

restitution.

Restitution sentence vacated. Case remanded with instructions.

Jurisdiction relinquished.

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Judge King joins the memorandum.

Judge Kunselman concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/04/2023

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