Com. v. Saltzer, S. (memorandum)

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J-S79035-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. STACY L. SALTZER, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 96 EDA 2016 Appeal from the Judgment of Sentence November 30, 2015 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0004765-2014 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016 Stacy L. Saltzer (“Saltzer”) appeals from the judgment of sentence imposed following her entry of an open guilty plea to one count each of driving under the influence of a controlled substance (“DUI”), accidents involving damage to unattended vehicle, disregarding a lane of traffic, and operating a vehicle without financial responsibility.1 We affirm. The trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/1/16, at 1-3. On appeal, Saltzer raises the following question for our review: Did the [trial] court err in ordering [Saltzer] to pay restitution to PECO [Energy Company (“PECO”)] in the amount of $19,463.70 for allegedly damaging a PECO utility pole, where no affiant claimed[,] through competent testimony or report[,] that any contact occurred between [Saltzer’s] car and the pole[,] and 1 75 Pa.C.S.A. §§ 3802(d)(2), 3745(a), 3309(1), 1786(f). J-S79035-16 [Saltzer] was never charged [with,] nor [pled] guilty to[,] striking the pole[?] Brief for Appellant at 9 (unnumbered). Saltzer argues that the trial court erred by ordering Saltzer to pay restitution for the damaged PECO utility pole. Id. at 12. Saltzer cites to this Court’s decision in Commonwealth v. Harriott, 919 A.2d 234 (Pa. Super. 2007), and asserts that, to impose an order of restitution, there must be a specific nexus between the crime committed and the amount of restitution ordered. Brief for Appellant at 12. Saltzer argues that such a nexus was not present in this case, because she was never charged with damaging the utility pole. Id. at 13.2 “When a court’s authority to impose restitution is challenged, it concerns the legality of the sentence; however, when the challenge is based on excessiveness, it concerns the discretionary aspects of the sentence.” Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006). Here, Saltzer asserts that the restitution for the PECO utility pole is illegal because 2 Additionally, Saltzer claims that the PECO utility pole was never mentioned at her guilty plea hearing. Brief for Appellant at 13. Saltzer further contends that the trial court’s determination was based merely on speculative, circumstantial evidence that had not been presented at the guilty plea hearing. Id. at 14. However, we note that the prosecutor referred to PECO’s restitution claim during both the guilty plea hearing and the sentencing and restitution hearing. See N.T., 7/8/15, at 3; see also N.T., 11/30/15, at 3. After the guilty plea hearing, the trial court postponed sentencing to consider restitution. See N.T., 7/8/15, at 4-5, 21. Additionally, after the sentencing and restitution hearing, the trial court left open the issue of restitution as to the PECO utility pole, and subsequently conducted a hearing to determine whether Saltzer should be held responsible for the damage. See N.T., 11/30/15, at 16. -2- J-S79035-16 there was an insufficient nexus between her actions and the damage. Therefore, Saltzer’s claim challenges the legality of her sentence. See Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010) (stating that “a claim that a restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing.”). “Issues relating to the legality of a sentence are questions of law. Our standard of review over such questions is de novo and our scope of review is plenary.” Super. 2014) Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. (citations, brackets and ellipses omitted); see also Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (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.”). Saltzer characterizes the restitution as a direct sentence imposed under Section 1106(a) of the Crimes Code. However, the trial court ordered Saltzer to pay restitution as a condition of her DUI sentence. Accordingly, the restitution is a condition of intermediate punishment imposed under 42 Pa.C.S.A. § 9763, which provides, in relevant part, as follows: 42 Pa.C.S.A. § 9763. Sentence of county intermediate punishment. *** (b) Conditions generally.—The court may attach any of the following conditions upon the defendant as it deems necessary: *** -3- J-S79035-16 (10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount, for the loss or damage caused by the crime. 42 Pa.C.S.A. § 9763(b)(10). In Harriott, this Court held that, to impose restitution as a condition of [intermediate punishment] pursuant to 42 Pa.C.S.A. § 9763(b)(10), there need not be a direct nexus between the conduct and the loss. Rather, an indirect connection between an offender’s activity and the victim’s damage will justify the restitution order. A sentencing court must have the latitude to include such restitution as a condition of [intermediate punishment] if restitution serves the various purposes of [intermediate punishment]. Harriott, 919 A.2d at 239; see also Commonwealth v. Pleger, 934 A.2d 715, 720 (stating that “[w]hether imposed as a direct sentence or as a condition thereof …, the primary purpose of restitution is the rehabilitation of the offender.”). In its Opinion, the trial court set forth the relevant evidence underlying Saltzer’s DUI conviction, as well as the evidence establishing a nexus between Saltzer’s actions and the damage to the PECO utility pole. Trial Court Opinion, 3/1/16, at 4-7. See The trial court determined that “the damages to the utility pole stem from [Saltzer’s] overall conduct that night[,] which resulted in the charge of DUI, to which she has pled guilty.” Id. at 7; see also Harriott, 919 A.2d at 240 (finding that, for the purpose of ordering restitution as part of an intermediate punishment for DUI, the act of spitting on police officers was part of appellant’s overall conduct). Upon review, we agree that the record supports the relaxed nexus applicable when -4- J-S79035-16 restitution is imposed as a condition of intermediate punishment, and we adopt the trial court’s analysis, as set forth in its Opinion, for the purpose of this appeal. See Trial Court Opinion, 3/1/16, at 4-7. Accordingly, Saltzer is not entitled to relief on her claim. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/23/2016 -5- Circulated 10/31/2016 03:51 PM IN THE COURT OF.(;OMMON COMMONWEALTH or PLEAS OF MONTGOMERY CRIMINAL DlVISJON COUNTY, PENNSYLVANIA PENNSYLVANIA 4765-2014 v, 2018 EDA 2015 STACY SALTZER OPINION I ' INTRODUCTION Appellant, from this Court's StacySaltzer, Disposition ("Appellant") appeals to the Superior Court of Pennsylvania imposed on November 30, 2015, asa result of an open guilty plea I A entered on July 8, 2015. restitution FACTS AND PROCEl)URAL hearing was held thereafter HISTORY i On April 10, 2014 at approximately Pottstown Borough Police Department the report of' a vehicle accident. on December 10, 2015. 8:56 p.m., Officer Andrew Licwinko or the responded to the area of Beech Street and Penn Street for Upon his arrival, he observed one vehicle crashed into two parked vehicles. Officer Licwinko spoke with witnesses at the scene who saw the defendant's traveling vehicle, cast on Beech Street, swerve into the East bound lanes and back into the west bound lanes with the rear bumper dragging behind the defendant's vehicle. The defendant's was observed Thereafter, drifting intb the West bound lane before striking the two parked vehicles. witnesses observed she tried unsuccessfully defendant vehicle the defendant trying to restart her car and whenit would not start to exit her car. Officer Licwinko observed appeared disoriented this behavior, noting that the and did not know what was going on. She kept stating that "he stole my kids". She would only repeat herself when asked to whom she was referring. 1 i'..•J f.l ~I ~I I Defendant was t1ransportcd form and the defendant submitted to Reading Hospital. Officer Licwinko read her the DL-26 toa blood test for suspicion of DUI. The defendant's blood was drawn al 10:30 p.mi' by an Emergency Room nurse and was sent to NMS labs for testing. 11,I ..... Officer Licwinko defendant had 55 ng/ml Clonazcparn received the lab results on ApriI 25, 2014, which showed that the ,of Lorazepam, 48 ng/ml of Clonazepam in her system, all of which arc schedule IV controlled Based upon the foregoing, Officer Licwinko defendant, and 16 ng/ml of 7 Aminosubstances. issued a summons, sent by mail, to the Stacy Seltzer, On May 8, 20141 Appellant a controlled was charged substance, cine count of accidents involving ' count of disregarding with one count of driving under the influence of damage to unattended a lane of' traffic and one count of operating vehicle, one a vehicle without financial responsibi I ity. On July 8, 2015, the defendant entered a knowing, intelligent and voluntary open guilty plea on the record to all four counts. N.T., Open Guilty Plea, 7/8/15, pp. 6- 20. A restitution hearing was requested arid sentencing On November 30,, 2015, the Defendant, Driving Under the lnfluence in the Montgomery Intermediate was sentenced conditions, of a Controlled County Correctional Punishment, costs of prosecution was deferred. Substance, Facility; on Count one, to ten days of incarceration, fifty-nine to be served months and twenty days of with the first ninety days tobe served under house arrest; and to pay and I a fine of$ J ,500.00. lo pay court costs. In addition, including Stacy Saltzer was sentenced the'payrnent or restitution With regard to Counts 2, 3, and 4, the defendant the defendant's sentence was subject to special in the amount of $8,866.98, 2 the total cost of r.·1~·l t:I t;1 f;li ~I ~:I ~;:I damages to the two automobiles ";(ii' I l /30/15, p. 14-17. lilf!l,i;:I 1-,J.,,1 30 days so that the parties have adequate time to prepare and address the restitution The tommonwcalth .,.'4 ..."'·~ lifl~l i-,.lls,• the defendant collided requested with. N.T., Sentencing that restitution Hearing, remain open for an additional claim of I PECO for damage to a telephone pole in close proximity lo where the defendant hit the two ff\.,....", 1\,1\l · parked vehicles. N.T., Sentencing Hearing, I 1/30/15, p. 16. ~ti,ll . ,.~ ... tlll~l A restitution hearing was held on December I 0, 2015 regarding damages to a telephone a representative $19,463.70 P?l'e. After hearing testimony of PECO( and the Defendant, 29, '.2015, Appellant to tile and serve a Concise Statement from Officer Licwinko, claim for Kimberly Yocum, this Court granted restitution in the sum 01· for the cost ofrepairs to the PECO pole. On December PECO's NT, Restitution Hearing, 12/10/15, .p27. filed a Notice of Appeal. This Court ordered Appellant within 21 days of January 7, 2016. I I ! On Januarv. 19.. 2016, a Concise Statement ' was Ii led in the Clerk of Courts and served upon the Commonwealth, ISSUES By way of Concise Statement, reproduced I. below verbati]n, Appellant Appellant with citations LO raises three issues on appeal. the record omitted: plead guilty to Count I, DU I of a controlled Count 2, Damage.to attended vehicles, substance, second offense, M-1; Summary offense; Count [3], Disregard Traffic Lane, Summary Offense; Count 4, Operating However, at the Inst minute the Commonwealth i without a license, Summary Offense. tried to saddle appellant damage to a tclep:h?ne pole which she did not hit. The Commonwealth days to prove Appellant , The issues are was responsible for the damage to the telephone 3 with the cost of was given ninety pole. 2. With regard to the I factual basis, the Commonwealth indicated the following: you I understand by pleading guilty you're admitting a motor vehicle i~ Pottstown, Montgomery that on April 10, 2014, you were driving County, and you did so while you had levels I of Lorazcparn and Clonazazeparn, which arc scheduled IV drugs, in your system exceeding Appellant 3. prescription levels, and that rendered you impaired to drive? never pied guilty to hitting a PECO pole and nothing in the Police report or i Bills of lnformation indicated she hit a PECO pole. The Commonwealth Appellant responsible for paying restitution to PECO. shouldlbe failed to prove The trial court therefore i erred in ordering Appellant an accident she \,:as not to pay restitution in the amount of $20,418.751 to PECO for involved in. DISCUSSION A. THIS COUHJf PROPERLY SENTENCED DEFENDANT TO PAY RESTJTUTION FOR DAMAGE TO TJIE PECO ENERGY POLE. While the Appellant's Concise Statement consists of three paragraphs, it appears that ' only one issue is raised o1n appeal, that being the propriety defendant for damages 19 the of the restitution order against the PECO Energy utility pole. ' When Officer Licwinko arrived at the accident scene on the night of' April 10, 2014, he found the defendant in her vehicle, which had stopped after hitting two parked vehicles. Witnesses to this accidentI . informed the Officer that the defendant's vehicle was swerving back and forth over the double yellow line and struck a parked car head-on and then struck another vehicle. NT, Restitution 1 Hearing, 12/10/15, p. 7. Officer Licwinko also observed Th is Court Ordered Restitution in the amount of SI 9,<163 .70, which is the amount of damages 1::nergy's witness. NT, Restit~lfon Heuring, 12/10/15, p. 11, 27. 4 I . rcsti that the ficd lo by PECO bumper of the defendant ':scar was hanging off the back. NT, Restitution Hearing, 12/10/15, p. I 5-6. Officer Licwinko's1 Criminal Complaint silver/aluminum identifies the defendant's vehicle as a Nissan Sentra, with a license plate number of FHM0824. See. Criminal ' . ' I Complaint, filed June 301 '.?014. I\) I At 8:53 p.m., approximately ~, three minutes prior to Officer Licwinkos response to the r"'' l~l accident involving the defendant and the two parked cars, a report of a hit and runin the 200 I block of York Street wascalled in to the Pottstown Police Station. The caller described vehicle as a gray or silver Nissan, number of FHM0824. with a Pennsylvania registration the NT, I Restitution Hearing, Kimberly 12110/15, pp. 7-10. Yocum[ .i senior claims case manager for PECO Energy testified that she was contacted by the Pottstown Police Department to report a damaged I Street in Pottstown. NT,!Restitution Hearing, 12/10/15, p. 11, 26. troubleman, Howard Green was dispatched utility pole at 264 North York She testified that PECO's to the site to determine the amount of damage. He I ' determined secondary that pole number 520 was hit bya vehicle and it was cracked level and at th~ cross arms at the top. NT, Restitution Hearing, at the bottom, at the 12/J 0/15, p. 21-22. ' The damages defendant were calculated to be $19,463. 70. NT, Restitution spoke with a representative Hearing, I 2/ I 0/ 15, p. 11. The of PECO on a couple of occasions regarding the amount of I damages PECO incurred ~$ a result of the damaged utility pole. NT, Restitution Hearing, i 12/10/15, p. 12-15; Exhi~il'C-3. The defendant testified that after taking the prescribed medication she does not remember two days of her life, let alone hitting the utility pole that night. NT, Open Guilty Plea, 7/8/15, p. 18; NT, Restitution Hearipg, 12/10/ l 5, p. 25. 5 I t c,,1 f.l ~I It is the Commonwealth's ~I (ill fashioning burden or proving its entitlement to restitution. When an order of restituuon, the lower court must ensure that the record contains the factual I basis for the appropriate 'amount of restitution. The dollar value of the injury suffered victim as a result or the crime assists the court in calculating the appropriate by the amount of ! restitution. The amount 9f the restitution award may not be excessive orspeculative. Commonwealth v. AlcmaLo, 997 A.2d l 181, 1183 (Pa. Super. 20 I O)(cifCltions omitted). can be imposed by the Courts in one of three ways, as a direct sentence I 18 Pa. C.S. § 1106(a); as a condition or probation under 42 Pa. C.S. § 9754(c)(8); or as a Restitution under I I condition of intermediate punishment I under 42 Pa. C.S. § 9763(b)( I 0). See, Commonwealth v. . Harriott, 919 A.2d 234, 23 7-38 (Pa. Super. 2007). I In the instant matter, the defendant of her DUI sentence defendant and as such, restitution was ordered to serve intermediate for damage punishment to the utility pole was imposed upon the under Section 9763(b )( I 0). Circumstantial evidence presented by the Commonwealth established that the defendant struck the utility pole on the 200 block of York Street in Pottstown. The defendant's I I rear end damage with its bumper hanging called into the Pottstown I off. A report or a hit . what precisely hit the two parked of the hit and run vehicle matches color of the defendant's \)chicle, as well as the license plate number. I vehicle had and run on York Street was Police Station three minutes before the defendant vehicles, a short distance :a\vay. The description identified as part the make and While it was never was hit on York Street, there were no reports of any other properly damage in that area, other than the utility pole. These facts considered damage to the rear of the defendant 's vehicle leads this Court to conclude collectively with the that the defendant struck the utility pole wit!~ her vehicle shortly before she struck the two parked vehicles. 6 I I 1 Accordingly, based upon the foregoing, this Court concludes that the damages to the utility pole ~, L.,J ·~•, stem from the defcndant+s overall conduct that night which resulted in the charge of DUI, to which she has pied guiltr The restitution will provide reimbursement to PECO, who is a victim in this matter for restitution purposes. I . "•, CONCLUSION Based on the reasons above, the undersigned respectively requests that this Court's sentence imposing restitution upon the Defendant for damage to the PECO Energy utility pole,in the amount of$19,463.70 be AFFIRMED. BY THE COURT: Copies of the abo'l Or<j<;r Mailed on: olj ;;;_9// l{) By trucrofflce ~lall to: ; Montgomery County District Attorney's Office -Appellate Div. Raymond Roberts, Esq. (Assistant Public Defender, Chief of Appeals) Clerk ofCourts . ~::~ 7 I I

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