[J-26-2020] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 28 WAP 2019 : Appellee : Appeal from the Order of the : Superior Court entered December : 17, 2018 at No. 1799 WDA 2016, v. : affirming the Judgment of Sentence : of the Court of Common Pleas of : Allegheny County entered October CHRISTOPHER ROBERT WEIR, : 17, 2016 at No. CP-02-CR- : 0005483-2016 Appellant : : SUBMITTED: April 21, 2020
OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 1, 2020
We granted discretionary review to determine whether a challenge to the amount
of restitution imposed pursuant to Section 1106 of the Pennsylvania Crimes Code, 18
Pa.C.S. § 1106, implicates the discretionary aspects of sentencing or the legality of the
sentence, a dichotomy relevant to the need for issue preservation. Upon review, we
conclude that a challenge to the sentencing court’s determination as to the amount of
restitution sounds in sentencing discretion and, therefore, must be preserved.
Accordingly, we affirm the Superior Court’s ruling that Weir’s restitution challenge
implicates a discretionary aspect of the sentence that was not properly preserved and,
therefore, was waived. I. BACKGROUND
This case arose out of an altercation over a debt, during which Appellant
Christopher Weir (“Weir”) struck and damaged the motorcycle of Jacob Korimko
(“Korimko”). Trial Court Opinion, 6/22/2017, at 2. Weir was charged with one count each
of burglary, criminal mischief, harassment, and disorderly conduct.1 He proceeded to a
non-jury trial on October 17, 2017. Concerning the damage to his motorcycle, Korimko
testified at trial that he paid $1492 to replace the entire headlight assembly: the headlight,
two side frames, the cowl, a support, and the gauge cluster. N.T., 10/17/2016, at 16–17,
25. Korimko also testified that his original estimate for repairing the vehicle totaled $2492,
$1492 for new parts and $1000 to paint the new parts. Korimko testified that he could
not afford the painting expense, so the new parts remained unpainted. Id. at 17, 25, 28.
Following the non-jury trial, the trial court found Weir guilty of criminal mischief and
harassment. N.T., 10/17/2016, at 59; Trial Court Opinion, 6/22/2017, at 1. As for potential
restitution, the trial court stated, “[T]he loss being approximately $2,500, give or take. We
can talk about the details of that later.” N.T., 10/17/2016, at 59. The case immediately
proceeded to sentencing, at which the trial court sentenced Weir to probation for an
aggregate term of two years and ninety days. Id. at 63. The trial court also ordered Weir
to pay restitution, stating: “At the criminal mischief he is ordered to pay restitution in the
amount of $2,000. I’m splitting the paint job cost only because we don’t have accurate
detailed information in that regard. And it is an M2, so I’m staying with $2,000.” Id.
Weir filed a timely post-sentence motion, raising a challenge to the weight of the
evidence supporting the verdict and a non-specified challenge to the restitution order,
1 18 Pa.C.S. §§ 3502(a)(3), 3304(a)(5), 2709(a)(1), and 5503(a)(1).
[J-26-2020] - 2 claiming the latter “exceeds the amount of loss suffered by [Korimko] in repairing the
damage to his bike.” Post-Sentence Motion, 10/26/2016, ¶ 12. The trial court denied the
motion based on its conclusion that the record supported its restitution order in that
Korimko testified regarding how much he paid for repairs and the estimate he received
“to paint the replacement parts in order to return the motorcycle to its condition prior to
the damage caused by [Weir].” Trial Court Opinion, 6/22/2017, at 5 (citing
Commonwealth v. Walker, 666 A.2d 301, 311 (Pa. Super. 1995); Commonwealth v.
Pappas, 845 A.2d 829, 845 (Pa. Super. 2004)). The trial court observed that it “could
have ordered restitution in the amount of $2,400” based on the record. Id.
Weir appealed to the Superior Court, but he did not include a Pa.R.A.P. 2119(f)2
statement in his Superior Court brief, and the Commonwealth objected. On June 18,
2018, the Superior Court issued a memorandum opinion, rejecting his restitution
challenge on the basis of waiver, i.e., it was a discretionary aspect of sentencing claim,
and Weir did not properly preserve it. Accord Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987) (holding that claim relating to discretionary aspects of sentence is waived
if appellant does not include Pa.R.A.P. 2119(f) statement in brief and opposing party
objects to statement’s absence). Weir filed an application for panel reconsideration or en
2 This Rule provides: (f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f).
[J-26-2020] - 3 banc review, insisting that his restitution challenge implicated the legality of the sentence.
The Superior Court granted panel reconsideration, withdrew its memorandum opinion,
and filed a published opinion affirming Weir’s judgment of sentence. Commonwealth v.
Weir, 201 A.3d 163, 170 (Pa. Super. 2018).
The Superior Court majority, in an opinion authored by the Honorable Mary Jane
Bowes, observed that a sentencing court is statutorily required to impose restitution when
the Commonwealth has established that (1) the defendant committed a crime, (2) the
victim suffered injury to person or property, and (3) there exists a direct causal nexus
between the crime and the loss. Weir, 201 A.3d 163, 170 (citing 18 Pa.C.S. § 1106(a)).3
With regard to preserving a restitution challenge, the Superior Court acknowledged a
conflict in its decisions as to whether an appeal of a restitution order in a criminal
proceeding implicates the legality or the discretionary aspects of a particular sentence.4
3 Section 1106(a) provides: (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. 18 Pa.C.S. § 1106(a). 4 See Weir, 201 A.3d at 171 (citing In the Interest of Dublinski, 695 A.2d 827 (Pa. Super. 1997)). The Dublinski panel cited two opinions holding that a claim that restitution is not supported by the record challenges the legality of the sentence, and several opinions holding that a claim that the amount of restitution imposed was speculative is a challenge to the discretionary aspects of the sentence. Dublinski, 695 A.2d at 828-29.
[J-26-2020] - 4 To answer that question, it turned to In the Interest of M.W., 725 A.2d 729 (Pa. 1999),
which was a challenge to restitution in a juvenile court dispositional order5 that the
Superior Court noted for its clarity regarding the interplay between restitution and issue
preservation. Weir, 201 A.3d at 172. At issue in M.W. was the juvenile court’s authority
to impose restitution pursuant to 42 Pa.C.S. § 6352, where the juvenile was not wholly
responsible for the property damage. The Superior Court quoted this Court’s summation
of the distinction between legality of sentence and the discretionary aspects of sentencing
in the realm of criminal restitution:6
We recognize that there has been some confusion as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. See In the Interest of Dublinski, 695 A.2d 827, 828–29 (Pa.Super.1997)(collecting cases). Where such a challenge is directed to the trial court's authority to impose restitution, it concerns the legality of the sentence; however, where the challenge is premised upon a claim that the restitution order is excessive, it involves a discretionary aspect of sentencing. See generally Walker, 446 Pa.Super. at 55, 666 A.2d at 307.
M.W., 725 A.2d at 731 n.4. Concluding that the juvenile’s claim sounded in sentence
legality because it challenged the trial court’s authority to impose restitution on a juvenile
5 Our decision in M.W. was guided by the Juvenile Code, under which the imposition of restitution remains discretionary. 42 Pa.C.S. § 9352(a)(5). Accord Pa. L. Journal, 179th Gen. Assemb. No. 29, First Spec. Sess. (1995) (noting Senate removal of juvenile portion of mandatory restitution). 6 In its discussion, M.W. “assumed, for the sake of argument, that a review of a dispositional order under the Juvenile Act is subject to the same limitations as a review of a criminal sentence.” M.W., 725 A.2d at 731. The court also noted our jurisdiction to review issues relating to the lawfulness of a sentence or dispositional order. Id. (citing Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996) (reasoning that Section 9781(f) does not preclude review of legal principles), and In the Interest of M.M., 690 A.2d 175, 177 (Pa. 1997) (discussing the right to appeal in proceedings under the Juvenile Act generally)). The M.W. Court did not opine on whether the statutory constraints regarding dispositional orders apply in juvenile proceedings. Id. at 371, n.4
[J-26-2020] - 5 who was not solely responsible for the property damage, we held in M.W. that the
juvenile’s failure to preserve the issue did not preclude appellate review. Id. at 731.
Despite “the clarity” of M.W., the Superior Court observed that panels of that court
continued to use boilerplate language, like “unsupported by the record,” to describe a
restitution challenge as sounding in sentence legality. Weir, 201 A.3d at 172 (citing
Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa. Super. 2017)). The Superior Court
observed that the phrase “unsupported by the record”:
provides no meaningful guidance as to whether a particular claim implicates the discretionary aspects or legality of sentencing, as its broad scope is amenable to differing interpretations. In some cases, a lack of record support may implicate the sentencing court’s statutory authority to impose restitution and, hence, the legality of sentence. In other cases, there may be a lack of record support for the amount of restitution, which would implicate the court’s discretion in determining the amount of restitution to be imposed.
Id.
Applying M.W. to Weir’s challenge, the Superior Court instructed, “A challenge to
the legality of sentence is presented when the defendant claims that the trial court lacked
statutory authority to impose restitution because the Commonwealth failed to establish
one or more of the requirements of [S]ection 1106(a).” Weir, 201 A.3d at 172. The
Superior Court rejected Weir’s attempt to frame his challenge as a sentence legality claim
by using the phrase “unsupported by the record” and concluded that Weir’s argument
went to the amount of restitution, not the propriety of restitution. Weir, 201 A.3d at 174.
Consequently, because the Commonwealth satisfied each element of Section 1106(a),
Weir had no feasible challenge to the sentencing court’s statutory authority to impose
restitution. Since Weir challenged the sentencing court’s determination as to the amount
of restitution, his claim implicated the discretionary aspects of sentencing. Because Weir
[J-26-2020] - 6 failed to include a Pa.R.A.P. 2119(f) statement in his brief and the Commonwealth
objected to this omission, Weir waived his sentencing challenge. Weir, 201 A.3d at 175.
The Honorable Deborah Kunselman filed a concurring opinion concluding that
Weir’s challenge to the restitution sentence implicated its legality. Weir, 201 A.3d at 175
(Kunselman, J., concurring). Her two-fold reasoning was based on the view that where
restitution is mandatory, a challenge to the sufficiency of evidence to support the award
itself or the amount goes to the legality of the sentence. First, the plain language of
Section 1106 of Title 18 makes restitution mandatory and puts the burden on the
Commonwealth to prove the amount of “full restitution.” Id. at 176. Second, the legislative
history of Section 1106 is similar to that of the Mandatory Victims Restitution Act, 18
U.S.C. § 3663(a), and both are aimed at making restitution non-discretionary. Id. at 176
n.3. Judge Kunselman reasoned that Weir’s challenge to the amount of restitution as
“speculative and not supported by the record” questioned “the court’s authority to enter
this award” and, therefore, it “attacks the legality of his sentence.” Id. at 177.
According to Judge Kunselman, even though restitution itself is mandatory and a
challenge to restitution as not being supported by the record goes to legality, the trial court
is still permitted to determine a reasonable amount for restitution, as in the case of
awarding attorneys’ fees. Id. at 180, n.8 (citing McMullen v. Kutz, 985 A.2d 769, 776–77
(Pa. 2009)). Judge Kunselman concluded: “[T]he amount was not speculative and was
supported by the record” and therefore, the trial court “had the authority to enter such an
award.” Id. at 180.
This Court granted review to address the following question:
Whether the Superior Court majority erred in holding that a challenge to an order of restitution pursuant to 18 Pa.C.S.A. § 1106 (Restitution for Injuries
[J-26-2020] - 7 to Persons or Property), contending that the amount is speculative and not supported by the record, always implicates the discretionary aspects of sentence that is subject to waiver, or whether such a challenge actually may implicate the legality of sentence and is non-waivable, as Judge Kunselman correctly concluded in her concurring opinion.
The parties are directed to address the Opinion Announcing the Judgment of the Court in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality), that was adopted by Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016).
Commonwealth v. Weir, 215 A.3d 966 (Pa. 2019).
Whether a claim implicates the legality of a sentence presents a pure question of
law, in which case our scope of review is plenary, and our standard of review, de novo.
Commonwealth. v. Petrick, 217 A.3d 1217, 1224 (Pa. 2019) (citation omitted). Resolution
of the matter at hand also involves interpretation of a sentencing statute, which presents
a pure question of law; again, our scope of review is plenary, and our standard of review,
de novo. Id. (citation omitted).
II. ARGUMENTS OF THE PARTIES
Weir failed to preserve a challenge in the Superior Court to the discretionary
aspects of his sentence. He now argues that his challenge to the amount of the order of
restitution under Section 1106 as “unsupported by the record” implicates the legality of
the sentence, and, therefore, is unwaivable. Weir’s Brief at 24. According to Weir, in
reasoning that a challenge to the amount of restitution implicates a discretionary aspect
of sentencing, the Superior Court misconstrued his challenge by overlooking “another
fundamental requirement of Section 1106—to invoke the trial court’s authority under the
statute, the Commonwealth must present sufficient evidence demonstrating the victim’s
entitlement to restitution.” Id. at 31–32 (citing Weir, 201 A.3d at 174). Weir claims that
the Commonwealth fell short of presenting sufficient evidence in this case, such as
[J-26-2020] - 8 receipts or estimates, to support the sentence of restitution. Id. at 34. He attacks the
Commonwealth’s proof on two grounds. First, the amount of restitution imposed
exceeded Korimko’s actual damages and was speculative. Id. at 34–35. Second, the
sentencing court imposed a restitution amount that was higher than the amount supported
by the record. Without any discussion of the relevant statutory provisions, Weir argues
that his sentence violates the principle that a sentencing court lacks authority to impose
anything other than a mandatory sentence, which Weir claims is “full restitution” as
mandated by 18 Pa.C.S. § 1106(c)(1)). Weir’s Brief at 35.7
In the Commonwealth’s view, an illegal sentence “is one that exceeds the
jurisdiction or power of the sentencing court to impose” the sentence. Commonwealth’s
Brief at 10. The Commonwealth contends Weir’s challenge attacks the amount of
restitution imposed, not the sentencing court’s authority to impose restitution. Id. at 17.
Although the Commonwealth acknowledges that the trial court was required to impose
full restitution, it argues that requirement does not convert Weir’s attack on the
determination of the amount into an attack on the court’s authority. Id. at 17–18 n.3.
The Commonwealth proffers several reasons why this Court should reject Weir’s
claim that to invoke the authority to impose restitution, a sentencing court must have
specific types of evidence demonstrating entitlement to the amount awarded.
7 Weir contends that “facts (other than prior convictions) that increase mandatory sentences” — such as those establishing mandatory restitution in this case — “must be proven beyond a reasonable doubt.” Weir’s Brief at 36–37 n.11 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Weir appears to argue that the trial court did not have authority to impose this restitution sentence because it did not make a determination as to the amount of restitution beyond a reasonable doubt, presumably as a result of the quality of the evidence presented. The argument is totally undeveloped in the body of his brief and we will not address it.
[J-26-2020] - 9 Commonwealth’s Brief at 17–22 (citing Weir’s Brief at 32). First, Weir’s attack is on the
weight that the sentencing court placed on Korimko’s testimony and alleges an abuse of
discretion in crediting his testimony to the extent that it did. Commonwealth’s Brief at 17.
Second, Weir never advanced a claim that the evidence failed to establish the factual
prerequisites for the imposition of restitution as set forth in Section 1106(a), which it views
as a prerequisite for a restitution sentence. Id. at 19. Third, Weir confounds claims
attacking evidentiary support for the amount of restitution with challenges to the
sentencing court’s authority to impose restitution. Id. at 21, 22. Finally, by claiming the
amount of restitution was speculative, Weir has inherently acknowledged that restitution
was authorized. Id. at 22.8
The Commonwealth points out that Weir’s challenge to the evidence establishing
the cost of restoring the victim’s property and the weight that the court placed upon the
evidence is unlike claims raised in other recent Superior Court restitution challenge cases
that the evidence failed to establish a causal nexus between the criminal conduct and the
victim’s loss, one of the elements required to support a sentence of restitution under
Section 1106(a). Commonwealth’s Brief at 23–25 (citing Commonwealth v. Atanasio, 997
A.2d 1181 (Pa. Super. 2010), Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017),
Commonwealth v. Rotola, 173 A.3d 831 (Pa. Super. 2017), and Commonwealth v.
Crosley, 180 A.3d 761 (Pa. Super. 2018)). The Commonwealth asserts that appellate
courts generally do not disturb discretionary aspects of sentencing, such as the amount
8 The Commonwealth presents an alternative argument that, even if this Court considers the merits of Weir’s claim, the victim’s testimony was sufficient to support the restitution order. Commonwealth’s Brief at 22–23.
[J-26-2020] - 10 of a restitution award, “because the trial court is in a better position to weigh the factors
appropriate in determining [a] sentence.” Id. (citing this Court’s precedents).9 Lastly,
according to the Commonwealth, the relevant question is whether the sentencing court
went beyond its power and imposed an unauthorized sentence, which would give rise to
a non-waivable sentencing claim, whereas a discretionary sentencing error, like the one
alleged by Weir, does not result in an illegal sentence and is waivable. Id. at 26–27.
As directed in our grant of allowance of appeal, both Weir and the Commonwealth
address the impact of the Foster plurality and Barnes on the current challenge. Weir
predictably places his restitution challenge in the first category of sentence-legality claims
identified by the Foster plurality, i.e., where the sentencing court lacks authority to avoid
entering a particular sentence, Foster, 17 A.3d at 342. Weir’s Brief at 35. According to
Weir, his sentence is illegal because the sentencing court lacked authority to impose any
amount other than full restitution, but it imposed more than full restitution because of its
reliance on evidence that did not support the amount awarded. Id. In turn, the
Commonwealth emphasizes the plurality’s acknowledgment that a reviewing court must
limit its application of sentence legality to claims where the sentencing court’s “authority
to act” is implicated. Commonwealth’s Brief at 13. According to the Commonwealth, non-
waivability “should not encompass every instance in which the sentencing court’s
9 Commonwealth v. Martin, 351 A.2d 650, 657 (Pa. 1976) (“It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination.”); Commonwealth v. Plank, 445 A.2d 491, 492 (Pa. 1982) (citing Martin); Commonwealth v. Skeriotis, 531 A.2d 1114, 1115 (Pa. 1987) (Zappala, J., concurring and dissenting) (“It is clear that a trial court has the discretion to assess the amount of restitution deemed appropriate to compensate the victim for the injuries suffered.”).
[J-26-2020] - 11 ‘authority to act has been infringed upon,’ as the lead opinion in Foster contends.” Id. at
27 (citing Foster, 17 A.3d at 344 (brackets and emphasis in original)).10
Regarding Barnes, Weir restates its adoption of the lead opinion in Foster “for the
proposition that a sentence is illegal for issue preservation purposes where the
sentencing court lacked authority to avoid entering a particular sentence.” Weir’s Brief at
31 (quoting Barnes, 151 A.3d at 126). The Commonwealth limits its discussion of Barnes
to a summary of its case specific holding that a sentence entered under authority that has
been rendered void on its face is an illegal sentence for issue preservation purposes.
Commonwealth’s Brief at 16.
IV. ANALYSIS
Restitution is “[t]he return of property of the victim or payments in cash or the
equivalent thereof pursuant to an order of the court.” 18 Pa.C.S. § 1106(h). “[A]n order
of restitution must be based upon statutory authority,” M.W., 725 A.2d at 731, and that
authority lies generally in Section 9721(c) of the Sentencing Code, which provides: “In
addition to the [sentencing] alternatives set forth in subsection (a) of this section the court
shall order the defendant to compensate the victim of his criminal conduct for the damage
or injury that he sustained.” 42 Pa.C.S. § 9721(c). Specific to the case on appeal, the
authority of the sentencing court to impose restitution is codified in the Crimes Code in
Section 1106. Amendments to Section 1106 in 1995 and 199811 changed restitution from
10 Without reference to the impact on this appeal, the Commonwealth also summarizes the concurrences in Foster. Commonwealth’s Brief at 14–16. 11Pa. L. Journal, 179th Gen. Assemb. No. 8, First Spec. Sess. (1995); H.B. 413, Printer’s No. 3735, 182nd Gen. Assemb., Reg. Sess. (Pa. 1997).
[J-26-2020] - 12 a discretionary sentencing option to its current form, which 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.
* * *
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim’s Compensation Board or other government agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim’s Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. The court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.
(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
[J-26-2020] - 13 attorney in accordance with paragraph (4) and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.
(iii) Shall not order incarceration of a defendant for failure to pay restitution if the failure results from the offender’s inability to pay.
(iv) Shall consider any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title.
18 Pa.C.S. § 1106(c)(1), (2).
Where a claim concerns the sentencing court’s exercise of discretion in fashioning
a sentence, the defendant must preserve and present the claim at trial by way of a
contemporaneous objection and/or a post-trial motion and on appeal through the process
provided by 42 Pa.C.S. § 9781(b)12 and Pa.R.A.P. 2119(f).13 Where a claim concerns
the sentencing court’s authority to impose a sentence, it is reviewable as of right on direct
12 Pursuant to this section, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” 42 Pa.C.S. § 9781(b). Moreover, pursuant to 42 Pa.C.S. § 9781(f), in challenges to the discretionary aspects of a sentence, “[n]o appeal ... shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.” 13 Prior to reaching the merits of a discretionary sentencing issue, the Superior Court must determine, inter alia, whether an appellant’s brief has a fatal defect. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). In a brief raising a sentencing discretion issue, an appellant must include a separate, “concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
[J-26-2020] - 14 appeal, without regard to preservation of the claim. Commonwealth v. Eisenberg, 98 A.3d
1268, 1275 (Pa. 2014). “[A] determination that a claim implicates the legality of a
sentence … operates to revive a claim otherwise insufficiently preserved below,” and is
reviewable by this Court on permissive appeal. Eisenberg, 98 A.3d at 1275;
Commonwealth v. Taylor, 104 A.3d 479, 489 (Pa. 2014).
In the realm of challenges to orders of restitution, M.W. is this Court’s seminal
discussion of the distinction between challenges to the legality of a restitution sentence
and the discretionary aspects of such a sentence, and the resulting impact on issue
preservation requirements. While M.W. was the first and remains the only case in which
this Court addressed the test for determining whether a challenge to an award of
restitution sounds in the legality of a sentence or the discretionary aspects of fashioning
an award, the Superior Court has on many occasions, before and since M.W., grappled
with the issue. See In the Interest of Dublinski, 695 A.2d 827, 828-29 (Pa.Super. 1997)
(collecting cases holding that restitution claim implicated discretionary aspects of
sentencing and cases holding that restitution claim implicated legality of the sentence);
Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017) (en banc) (plurality) (“Where
... statutory authority exists, however, the imposition of restitution is vested within the
sound discretion of the sentencing judge.”); Commonwealth v. Rotola, 173 A.3d 831, 834
(Pa.Super. 2017) (“An appeal from an order of restitution based upon a claim that it is
unsupported by the record challenges the legality, rather than the discretionary aspects,
of sentencing; as such, it is a non-waivable matter”).14
14 As discussed by the Superior Court in its opinion of this case, despite the clarity of the instruction in M.W., that court has not consistently used the M.W. framework to determine
[J-26-2020] - 15 Given the clarity of M.W. and its specific application to challenges to sentences of
restitution, it is not entirely surprising that the Superior Court, in this case, did not rely on
the more recent pronouncements of this Court (which, in part, drew from M.W.) on the
appropriate framework to determine whether a challenge to a sentence is to its legality or
to its discretionary aspects. For example, in Foster15 we addressed whether a challenge
to a mandatory minimum five-year sentence16 raised in response to this Court’s decision
in Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007),17 implicated a discretionary aspect
of a sentence or its legality.18 Foster, 17 A.3d at 334. The procedural posture of the
the appropriate categorization of challenges to an award of restitution. Weir, 201 A.3d at 172. As highlighted by the Superior Court, over the course of time, a meaningless default label, “not supported by the record,” has come to be a trigger for attempted challenges to the legality of a restitution award and for findings of illegal sentences without regard to whether the challenge was directed to the authority of the court to enter an award of restitution. Id. at 172. Indeed, Weir frames his challenge as one involving the legality of the restitution award because it is not “supported by the record.” This bare statement is irrelevant to any analysis of the character of the challenge. 15The lead opinion was authored by Justice Baer and joined by Justices Todd and McCaffery. 16 See 42 Pa.C.S. § 9712(a) (imposing mandatory five-year sentence of incarceration upon person convicted of enumerated violent crime and in visible possession of firearm). 17 In Dickson, we held that 42 Pa.C.S. § 9712, which provides a mandatory minimum sentence for visible possession of a firearm, cannot be applied to an unarmed co- conspirator. Dickson, 918 A.2d at 108–09. 18 The terminology of “legality of sentence” and “discretionary aspects of sentencing” is derived from 42 Pa.C.S. § 9781 - Appellate review of sentence, which provides: (a) Right to appeal.--The defendant or the Commonwealth may appeal as of right the legality of the sentence. (b) Allowance of appeal.--The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the
[J-26-2020] - 16 appeal complicated, in part, the ability to formulate a majority position. Dickson was
decided while Foster was on direct appeal. The defendant in Foster did not lodge a
challenge to the imposition of the mandatory minimum in the trial court based on his status
as an unarmed co-conspirator. He raised the challenge to the sentence for the first time
in the Superior Court. The Commonwealth, although agreeing that Dickson precluded
the imposition of the mandatory minimum, argued that the sentence imposed was
nonetheless permissible as it was within the statutory maximum under the sentencing
code and thus, any challenge to the sentence was to its discretionary aspect and had to
be preserved in the trial court.
The Foster plurality drew from the Superior Court’s analysis of its and our
jurisprudence setting the traditionally narrow benchmarks for an illegal sentence: failure
to apply a statutory maximum sentence, merger of convictions for purposes of sentencing,
and double jeopardy, Foster, 17 A.3d at 342, and from those contexts, the plurality
reasoned that sentence legality issues generally arise in two instances. The first is “when
a trial court’s traditional authority to use discretion in the act of sentencing is somehow
affected, see e.g. In re M.W., 725 A.2d at 731 (when a sentencing issue “centers upon a
court's statutory authority” to impose a sentence, rather than the “court's exercise of
discretion in fashioning” the sentence, the issue raised implicates the legality of the
sentence imposed).” Foster, 17 A.3d at 342. The second is “when the sentence imposed
is patently inconsistent with the sentencing parameter set forth by the General Assembly.”
discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. 42 Pa.C.S. § 9781(a), (b).
[J-26-2020] - 17 Id. (citing Commonwealth v. Shiffler, 879 A.2d 185, 188–89 (Pa. 2005) (sentence
exceeding statutory maximum intended by General Assembly); Commonwealth v.
Aponte, 855 A.2d 800, 802 n. 1 (Pa. 2004) (same, in context of Apprendi challenge);
Commonwealth v. Andrews, 768 A.2d 309, 313 (Pa. 2001) (challenge concerning merger
or double jeopardy implicates sentences contemplated by General Assembly for
violations of Crimes Code)). Recognizing that the sentence at issue implicated the
authority of the sentencing court to impose the mandatory minimum, the Foster plurality
held that the challenge implicated the non-waivable legality of the sentence because the
trial court possessed no authority to not impose a mandatory minimum at sentencing,
which set a floor for the sentence imposed.
Of the seven-member court, three justices filed concurring opinions. Then Chief
Justice Castille (joined by Justice Orie Melvin) was of the view that the appeal presented
the question of retroactive application of Dickson and that establishing a concrete rule on
the determination of whether the challenge was to the non-waivable legality of sentence
was neither necessary nor prudent. Foster, 17 A.3d at 346 (Castille, C.J., concurring).
Justice Eakin agreed with this view. Id. at 356 (Eakin, J., concurring). Then Chief Justice
Castille opined that basing trial level issue preservation on the legality/illegality construct
of Section 9781 was not supportable. He urged that the plurality significantly redefined
the concept of an “illegal” sentence to include all but discretionary sentencing claims,
predicting that many formerly discretionary claims involving, e.g., failure to properly
calculate guideline ranges, would now fall into the legality paradigm since sentencing
courts have no discretion but to consider the guidelines. Id. at 349–50. Former Chief
Justice Castille expressed the view that the plurality significantly changed the post-trial
[J-26-2020] - 18 and appellate issue preservation landscape. Id. at 351. He, like Justice Eakin, disagreed
that a sentence that includes the mandatory minimum can be illegal if the sentence is
otherwise within the statutory maximum.
Then Justice Saylor agreed with the Castille concurrence that the plurality’s stated
dichotomy defining the different challenges was problematic. He preferred “illegal per se”
language to capture “the thrust of the limited waiver exception pertaining to criminal
sentencing, while distinguishing the analysis from the legality/discretion dichotomy
governing the presentation of appellate claims under the Sentencing Code.” Foster, 17
A.3d at 356 (Saylor, J., concurring). He thus generally preferred a more case specific
analysis to determining an “illegal per se” sentence.
Seven years after Foster, in Barnes, when called upon to address the preservation
of a challenge to another mandatory minimum sentence19 in the wake of Alleyne v. United
States, 570 U.S. 99 (2013), this Court adopted the position of the lead opinion in Foster.
As in Foster, Barnes involved a retroactivity issue. The defendant in Barnes raised the
Alleyne challenge for the first time in this Court. Finding that the sentencing court was
without authority to enter any other sentence but the mandatory minimum, the Barnes
Court held consistent with Foster that “‘the sentencing court’s authority to act has been
infringed upon[,]’ rendering the sentence ‘illegal’ for issue-preservation purposes.”
Barnes, 151 A.3d at 125 (brackets in original) (quoting Foster, 17 A.3d at 344–45). Chief
Justice Saylor authored a concurring opinion, joined by Justice Mundy, adopting his views
19 See 42 Pa.C.S. § 9712.1 (imposing mandatory five-year sentence of incarceration upon person in constructive possession of drugs and in close proximity to firearm).
[J-26-2020] - 19 previously expressed in Foster. Justice Dougherty concurred expressing his agreement
with the Castille concurrence in Foster.
While Barnes generally settled the test for determining whether a challenge to a
sentence sounds in legality or the discretionary aspects of the sentence and the issue
preservation implications of those determinations, M.W. continues as viable precedent as
to the framework for classifying challenges to orders of restitution. Barnes and M.W. are
entirely consistent — a challenge to the sentencing court’s authority to order restitution
raises a non-waivable legality of sentencing issue. A challenge to the manner in which
the sentencing court exercises that authority in fashioning the restitution implicates the
discretionary aspects of the sentence.
Although preserving the issue in post-trial motions in the trial court, Weir did not
preserve his challenge to the restitution sentence in a Rule 2119(f) statement in the
Superior Court. Thus, reviewability of Weir’s restitution challenge necessarily hinges on
the interpretation of Section 1106, the source of the sentencing court’s authority to impose
restitution. The goal of statutory construction is to ascertain and effectuate the intent of
the General Assembly, which is best expressed through the words of the statute. 1
Pa.C.S. § 1921(a); Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009). “Every statute
shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a).
Words and phrases are to be construed “according to rules of grammar and according to
their common and approved usage[.]” 1 Pa.C.S. § 1903(a); Commonwealth v. Hall, 80
A.3d 1204, 1211 (Pa. 2013). When they are “clear and free from all ambiguity, the letter
of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.
§ 1921(b).
[J-26-2020] - 20 The plain language of Section 1106(a) makes clear, as relevant here, that a
sentencing court is required to impose restitution as a sentence upon conviction of a crime
when the victim’s property has been “substantially decreased in value as a direct result
of the crime. 18 Pa.C.S. § 1106(a). As a mandate, Section 1106(a) is consistent with
other mandatory sentencing statutes in two ways. First, it supplants a court’s traditional
authority to exercise discretion in choosing among sentencing alternatives. Foster, 17
A.3d at 344–45. Second, Section 1106(a) lends itself to a binary analysis, i.e., either it
applies or it does not apply, depending on whether the factual prerequisites for imposition
of the sentence exists. 18 Pa.C.S. § 1106(a).
In the context of issue preservation principles, Section 1106 requires an integrated
analysis of its relevant provisions. Section 1106(a) is mandatory in its directive and
removes any discretion from the sentencing court to impose restitution as punishment
upon conviction of a crime under two circumstances: where the property of a victim has
been stolen, converted or otherwise unlawfully obtained or its value has been
substantially decreased as a direct consequence of the crime, 18 Pa.C.S. § 1106(a)(1),
or where the victim, if an individual, suffered personal injury resulting from the crime, 18
Pa.C.S. § 1106(a)(2). Thus, the failure of a trial court to impose restitution where the
circumstances described in Section 1106(a)(1) or (2) are established results in an illegal
sentence. Conversely, and as relevant to a defendant’s challenge, if the statutory
circumstances are not established and the sentencing court orders restitution, the
challenge to the sentence implicates its legality. In either of these sentencing scenarios,
a challenge to the sentence of restitution need not be preserved.
[J-26-2020] - 21 Without any elaboration, but citing to Section 1106(c)(1), Weir argues that the
restitution ordered is illegal because it awards the victim more than “full compensation”
based on alleged failures in the Commonwealth’s evidence of the loss. Section 1106(c),
Mandatory Restitution, contains four subsections, two of which are pertinent to Weir’s “full
restitution” argument. Section 1106(c)(1) provides:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim’s Compensation Board or other government agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim’s Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. The court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.
18 Pa.C.S. § 1106(c)(1). A plain reading of Section 1106(c)(1) makes clear that “full
compensation” means that the amount is to be determined based on the victim’s loss
without regard to the defendant’s resources or collateral sources of payment. In this
context, “mandatory restitution” in the title of Section 1106(c) means that restitution must
be imposed pursuant to Section 1106, regardless of the defendant’s ability to pay or
collateral payments to the victim. There is nothing within this subsection (c) that remotely
relates to the quantity or quality of the evidence necessary to establish the amount of the
victim’s loss.
Moreover, the discretionary nature of the amount of restitution is established in
Section 1106(c)(2), which sets forth the factors to be considered by the sentencing court
in fashioning an award of restitution: “… the court shall consider the extent of injury
[J-26-2020] - 22 suffered by the victim, the victim’s request for restitution as presented to the district
attorney … and such other matters as it deems appropriate.” 18 Pa.C.S. § 1106(c)(2)(i).
This language, placing the determination of the amount of restitution under the sentencing
court’s consideration based on the stated factors and “other matters it deems
appropriate,” is the clearest possible indication of the General Assembly’s recognition that
fashioning the restitution order remained in the exercise of the sentencing court’s
discretion. Weir’s discontent with the amount of restitution and the evidence supporting
it is a challenge to the sentencing court’s exercise of discretion, not to the legality of the
sentence. To access review of his challenge by the Superior Court, he was required to
file a Pa.R.A.P 2119(f) statement in his appellate brief.
Here, Weir does not mount a Section 1106(a) challenge to the sentencing court’s
authority. He does not claim that he was not convicted of a crime where the value of the
victim’s motorcycle was substantially decreased as a direct result of the crime. He
therefore has not raised a challenge to the legality of the sentence under Section 1106(a).
Because Weir challenges only the amount of the award based on the sentencing court’s
consideration of the evidence of loss presented by the Commonwealth, it is a challenge
to the discretionary aspects of sentencing, and he was required to preserve it pursuant to
Pa.R.A.P. 2119(f).
The decision of the Superior Court is affirmed.
Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join
the opinion.
[J-26-2020] - 23