Commonwealth v. Kinnan

71 A.3d 983, 2013 Pa. Super. 169, 2013 WL 3366741, 2013 Pa. Super. LEXIS 1614
CourtSuperior Court of Pennsylvania
DecidedJuly 3, 2013
StatusPublished
Cited by31 cases

This text of 71 A.3d 983 (Commonwealth v. Kinnan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kinnan, 71 A.3d 983, 2013 Pa. Super. 169, 2013 WL 3366741, 2013 Pa. Super. LEXIS 1614 (Pa. Ct. App. 2013).

Opinion

OPINION BY

MUSMANNO, J.:

Ruston L. Kinnan (“Kinnan”) appeals from the judgment of sentence 'imposed after he pled guilty to theft by unlawful taking, 18 Pa.C.S.A. § 3921(a). 1 At issue in this appeal is whether the restitution component imposed as a condition of Kinnan’s probation is illegal. Finding that it is, we vacate the judgment of sentence and remand for resentencing.

Prior to the theft in question, Kinnan was an employee of Miller Welding Company (“Miller Welding”), located in Brook-ville, Pennsylvania. On the evening of April 26, 2012, Casey Belfiore (“Belfiore’’), a Miller Welding employee, called the Brookville Police Department to report a suspected theft that he had witnessed earlier that day at the Miller Welding plant (“the plant”). According to Belfiore, he saw Kinnan, who was supposed to have been out on disability leave, rummaging through .the plant’s garage. Belfiore then saw Kinnan drive away from the plant in a red pickrup truck, with a quantity of metal protruding through the rear window of his truck. Belfiore checked the plant’s metal inventory lists and determined that a large quantity of aluminum and other metals was missing from the garage.

Later that day, a police officer investigating the incident arrived at Kinnan’s residence and asked Kinnan whether he vvas involved in the theft. Kinnan denied any involvement. The officer asked Kin-nan for permission to look in Kinnan’s garage for the stolen metal. The owner of the'garage, Kinnan’s mother, grantéd permission and the police located all of the metal taken from the plant.' That ‘ same day, Miller Welding employees provided the police with documentation listing the pieces of metal taken by Kinnan and the value of each item. The combined value of all of the metal taken was $3,1)10.41. Notably, the police returned all of the metal that Kinnan had stolen to Miller Welding. Additionally, there is nothing in the record indicating that.the metal, or the premises from which it was taken, was damaged in any way.

Following his arrest, Kinnan entered into a negotiated plea agreement with the Commonwealth. Pursuant to the agreement, at sentencing, Kinnan pled guilty to theft by unlawful taking and, in exchange, [986]*986received a sentence of one to two years in prison, followed by three years of probation. Importantly, the ■ sentencing court also ordered Kinnan to pay $8,010.41 in restitution to Miller Welding. See N.T., 9/19/12,' at 6. Kinnan’s defense counsel argued to the sentencing court that restitution was inappropriate because the police had recovered all of the stolen metal and returned it, undamaged, to Miller Welding. Id. at 7. In response to this argument, the sentencing court stated as follows

THE COURT: I’m putting it oh a rehabilitative condition of his probation because [ ] Kinnan is a habitual criminal. So he can prove to me that after he gets out of the state sentence[,] he’s going to abide, you can pay Miller Welding because you were trying to make money for yourself.

Id. at 8. Kinnan timely filed a Notice of appeal from the September 19, 2012 Sentencing Order.1

On appeal, Kinnan raises the following issue for our review:

Whether the trial court properly assessed restitution against [Kinnan] (as a condition of probation and not as a direct sentence) where [the] victim did not suffer any loss, direct or indirect, on account of [Kinnan’s] actions and where the trial court made no inquiry [regard: ing] whether [Kinnan] was able to pay restitution as a condition of probation?

Brief for Appellant at 5.

Initially, we note that

[i]n the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence. An appeal from an order of restitution based upon a claim that a restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing. .The determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa.Super.2012) (citations and quotation marks omitted); see also id. (stating that because “[the' appellant’s] claim on appeal challenges the legality of his sentence, its review is not abrogated by the entry of his guilty plea.”).

Restitution is a creature of statute and, without express legislative direction, a court is powerless to direct a defendant to make restitution as part of his sentence. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702, 704 (1992). Where that statutory authority exists, however, the imposition of restitution is .vested within the sound discretion of the sentencing judge. Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa.Super.2004); see also id. (stating that “[t]he primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim’s personal injury and that it is his responsibility to repair the injury as far as possible.”).

In the context of a criminal case, restitution may be imposed either as a direct sentence, 18 Pa.C.S.A. § 1106(a), or as a condition of probation under 42 Pa. C.S.A. § 9754, the statute implicated in the instant case. When imposed as a sentence, the injury to property or person for which restitution is ordered must directly result from the crime. See 18 Pa.C.S.A. § 1106(a);2 see also Harner, 617 A.2d at [987]*987704. However, when restitution is ordered as a condition.of probation, the sentencing court is accorded the latitude to fashion probationary conditions designed to rehabilitate the defendant and provide some measure of redress to the victim. See 42 Pa.C.S.A. § 9754;3 see also Commonwealth v. Popow, 844 A.2d 13, 19 (Pa.Super.2004).

When restitution is imposed as a condition of probation under section 9754, the required nexus between the defendant’s criminal conduct and the victim’s loss is relaxed. Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa.Super.2007). However, there must be at least an indirect connection between the criminal activity and the loss. Id. Additionally, “to the extent a sentence of probation is imposed to make restitution for losses caused by the defendant’s criminal conduct, there should be proof of the damages suffered.” Commonwealth v. Hall, 994 A.2d 1141, 1145 n. 3 (Pa.Super.2010) (en banc) (citing Harner, 617 A.2d at 707). Finally, where a sentencing court imposes restitution as a probationary condition, sub-section 9754(c)(8) obligates the court to determine what loss or damage has been caused and what amount of restitution the defendant can afford to pay. 42 Pa.C.S.A. § 9754(c)(8); see also Hall, 994 A.2d at 1145 n. 3.

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Cite This Page — Counsel Stack

Bluebook (online)
71 A.3d 983, 2013 Pa. Super. 169, 2013 WL 3366741, 2013 Pa. Super. LEXIS 1614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kinnan-pasuperct-2013.