Opinion
Nos. 1370 WDA 2007, 1373 WDA 2007.
Filed: April 4, 2008. Petition for Reargument Filed: April 15, 2008.
Appeal from the Judgment of Sentence June 26, 2007, In the Court of Common Pleas of Greene County, Criminal Division at No. CP-30-CR-0000348-2005.
BEFORE: PANELLA, DONOHUE, and POPOVICH, JJ.
¶ 1 The Commonwealth of Pennsylvania has appealed, and John Henry Micklege (Micklege) has cross-appealed the judgment of sentence imposed upon Micklege on June 26, 2007, in the Court of Common Pleas of Greene County. The parties' appeals contend that the trial court abused its discretion with respect to the restitution component of Micklege's sentence. Upon review, we vacate the judgment of sentence in part and remand for resentencing.
¶ 2 The record reveals that on May 15, 2005, Micklege lost control of his vehicle while attempting to negotiate a curve on Route 188 in Franklin Township and then his vehicle collided with an oncoming car driven by Joanne Fisher. Both Ms. Fisher and Crystal Nighswander, her passenger, were seriously injured in the collision. Jonathan and Samantha Nighswander, the children of Crystal Nighswander, were also passengers in the vehicle, but they were not injured in the collision. The Pennsylvania State Police responded to the scene of the collision, and, based upon their observations of Micklege, they became suspicious that he was intoxicated. Consequently, they arrested Micklege on suspicion of driving under the influence of alcohol (DUI-alcohol) and transported him to a local hospital for blood alcohol concentration (BAC) testing.
¶ 3 Micklege's BAC test results indicated that he had a BAC of 0.12% within 2 hours after the accident. Accordingly, he was charged with DUI-alcohol (incapable of safe driving), DUI-alcohol (BAC greater than 0.10%), aggravated assault while DUI, failure to drive vehicle at safe speed. The case proceeded to trial before a jury on February 9-13, 2006. At the conclusion of trial, Micklege was found guilty of both DUI-alcohol charges and failure to drive vehicle at safe speed, but the jury was unable to reach a verdict with regard to the charge of aggravated assault while DUI, and a second trial was scheduled for that charge.
¶ 4 The trial court sentenced Micklege on April 12, 2006, to 48 hours to 6 months in the Greene County Jail, and it assessed a $500.00 fine and prosecution costs. The trial court also ordered Micklege to pay restitution to the Pennsylvania Crime Victims' Assistance Fund (PCVAF) in the amounts of $5,346.39 for the medical bills of Crystal Nighswander and $13,980.14 for the medical bills of Joanne Fisher. On November 29, 2006, Micklege filed a motion for rule to show cause why the order of restitution should not be amended due to the fact that his automobile indemnity insurance would remunerate the victims of the accident. The trial court held this motion under advisement until entry of the verdict in the forthcoming aggravated assault while DUI trial.
It must be noted that this motion was, in fact, a petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541- 9546. Micklege's judgment of sentence for the DUI charges was final and appealable when imposed on April 12, 2006 by the trial court. Accordingly, Micklege's November 29, 2006 motion was filed well beyond the 10-day limit for filing post-sentence motions, see Pa.R.Crim.P. 720, and was filed well beyond the trial court's residual 30-day jurisdiction to modify the sentencing order. See 42 Pa.C.S.A. § 5505. However, inasmuch as the motion presented a challenge to the legality of Micklege's sentence, see Commonwealth v. Allshouse, 924 A.2d 1215, 1229 n. 28 (Pa. Super 2007) (McCaffery, J., concurs in the result) (assertion that restitution and costs were unsupported by record connotes challenge to legality of sentence), the matter was cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vii). Accordingly, the law required that the trial court treat the motion as a PCRA petition. See Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999). Although the trial court did not treat the motion explicitly as a PCRA petition, its manner of adjudicating the motion conformed closely to PCRA procedure, and its grant of relief, i.e., resentencing due to legality, was within the purview of the PCRA.
¶ 5 Following a jury trial, Micklege was acquitted of aggravated assault while DUI. Therefore, on June 26, 2007, following the submission of briefs, the trial court granted in part Micklege's motion to remit the restitution component of his sentence and amended his judgment of sentence. The trial court remitted the restitution award to the PCVAF regarding Ms. Fisher, as she had settled with Micklege's automobile insurance company in the amount of $250,000.00. The remainder of the restitution component of Micklege's judgment of sentence was not disturbed by the trial court. Thereafter, the Commonwealth filed a timely notice of appeal, and Micklege filed a timely notice of cross-appeal to this Court. The trial court directed the parties to file concise statements of errors complained of on appeal, and they complied. The trial court, in turn, authored an opinion that addressed the issues presented in the parties' concise statements.
¶ 6 The Commonwealth asserts that the trial court erred when it modified Micklege's judgment of sentence so as to excuse Micklege from reimbursing the PCVAF for its payment of Ms. Fisher's medical bills. Micklege, on the other hand, contends that the trial court erred in its crafting of the restitution component of his judgment of sentence by requiring him to reimburse the PCVAF for its payment of Ms. Nighswander's medical expenses. Additionally, Micklege contends that the trial court erred in its assessment of prosecution costs to him.
¶ 7 Essentially, the sole issue presented by the Commonwealth and the first issue presented by Micklege challenge the trial court's authority to craft the restitution component of Appellant's sentence; these issues challenge the legality of Appellant's sentence. See Allshouse, 924 A.2d at 1229 n. 28. An appellate court exercises a de novo standard of review over matters pertaining to the legality of a sentence, and its scope of review is plenary. See Commonwealth v. McClintic, 589 Pa. 465, 471, 909 A.2d 1241, 1245 (2006).
The Commonwealth's challenge to Appellant's sentence is an attack upon the legality of the sentence because the trial court lacks the authority to enter a judgment of sentence without a restitution component where the defendant is convicted of a crime occasioning personal injury or pecuniary loss to the victim. Commonwealth v. Pleger, 934 A.2d 715, 719-20 (Pa.Super. 2007).
¶ 8 We shall consider jointly whether the trial court erred by modifying the restitution component of Micklege's judgment of sentence so as to remit his restitution payment to the PCVAF regarding Ms. Fisher and whether the trial court erred by requiring Micklege to reimburse the PCVAF for its payment to Ms. Nighswander. Title 18 Pa.C.S.A. 1106(a) requires the trial court to impose restitution as a part of a defendant's sentence when a victim suffered personal injury directly resulting from the crime. Consequently, restitution is imposed as a component of a defendant's sentence only where the victim's loss flows from conduct by the defendant that forms the basis of a crime for which the defendant is held accountable criminally. See Commonwealth v. Harriott, 919 A.2d 234, 237 (Pa.Super. 2007). On the contrary, when imposing restitution as a component of probation, the causal nexus between the criminal act and the restitution imposed is relaxed, and, therefore, a trial court need not establish a direct link between the crime and its "fruits" in the calculus of the restitution to be imposed on the defendant as part of his probation requirements. See Commonwealth v. Popow, 844 A.2d 13, 19-20 (Pa.Super. 2004).
¶ 9 The facts of the present case are somewhat unusual in that restitution was imposed as part of Micklege's sentence after his first trial, which ended in a conviction for the DUI charges but in a mistrial for the aggravated assault while DUI charge. Thereafter, the trial court imposed sentence, which consisted partly of an order of restitution to the PCVAF for its payments to Ms. Fisher and Ms. Nighswander. However, it follows from this set of facts that there was no ultimate determination of whether Ms. Fisher and Ms. Nighswander were the "victims" of a crime perpetrated against them. See 18 Pa.C.S.A. § 1106(h) (definition of "victim")., It is true, as the Commonwealth asserts, that this Court has previously affirmed the imposition of restitution as part of a defendant's sentence following a guilty plea for DUI-alcohol in the absence of a jury's finding of criminal responsibility for the injuries sustained by a "victim" in an accident following the defendant's drunk driving where the sentencing court "found [the] appellant's criminal conduct, the drunk driving, to be a substantial factor in causing the victims' injuries[.]" See Commonwealth v. Walker, 666 A.2d 301, 310 (Pa.Super. 1995). However, we cannot find that Walker is applicable in this context.
Title 18 Pa.C.S.A. § 1106(h) adopts the definition of "victim" contained in 18 P.S. § 11.103, which states the following: "Victim." The term means the following:
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender.
(3) A minor child who is a material witness to any of the following crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) committed or attempted against a member of the child's family: Chapter 25 (relating to criminal homicide). Section 2702 (relating to aggravated assault). Section 3121 (relating to rape).
(4) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiance, one of whom is to be identified to receive communication as provided for in this act, except where the family member is the alleged offender.
A "direct victim" is defined by 18 P.S. § 11.03 as an individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death or the loss of earnings under this act. The term does not include the alleged offender. See id., § 11.03. The term includes a resident of this Commonwealth against whom an act has been committed or attempted that otherwise would constitute a crime as defined in the Pennsylvania Code but for its occurrence in a location other than this Commonwealth and for which the individual would otherwise be compensated by the crime victim compensation program of the location where the act occurred but for the ineligibility of such program under the provisions of the Victims of Crime Act of 1984 (Public Law 98-473, 42 U.S.C. § 10601, et seq.). See id., § 11.03.
Although we hesitate to title DUI-alcohol a "victimless" crime, it cannot be characterized as a crime perpetrated against another individual, such as aggravated assault while DUI. See, e.g., 18 P.S. § 11.03; see also 18 Pa.C.S.A. § 1106(h). Rather, DUI, standing alone, is understood properly as an offense against the Commonwealth itself. As indicated by 18 Pa.C.S.A. § 1106(h), the Commonwealth is not a "victim" within the meaning of the statute, and it may collect restitution from a defendant only as reimbursement for funds paid from the PVCAF to the actual victims of a crime.
¶ 10 In Walker, the defendant's conviction for DUI-alcohol stemmed from a guilty plea, and, therefore, there were no explicit findings of fact by a jury on the issue of criminal responsibility for the accident. Therefore, the trial court bore the responsibility of determining the factual basis for the defendant's guilty plea and resulting sentence. Walker, 666 A.2d at 310. Presently, while it is true that the result of the mistrial on the aggravated assault while DUI charge left the trial court initially without a factual finding by the jury on the party responsible for the automobile collision, the subsequent jury trial resolved the issue explicitly in Micklege's favor through an acquittal. Thus, in the present case, unlike Walker, the jury made an explicit finding that Micklege's criminal conduct, drunk driving, was not a substantial factor in causing the victims' injuries. Accordingly, the restitution component of Micklege's judgment of sentence was not supported by a direct factual link to the injuries sustained by Ms. Fisher and Ms. Nighswander and cannot stand. See Harriott, 919 A.2d at 237. Consequently, we are constrained to vacate the restitution component of Micklege's judgment of sentence and remand for resentencing. Our inquiry does not end here, however.
¶ 11 Micklege contends that the trial court erred in its assessment to him of the cost of the Commonwealth's expert BAC witness, Dr. Charles Winek, because he "admitted" to the charged DUI offenses and, as such, Dr. Winek's fees were an unnecessary cost. The record belies this contention. Throughout trial, Micklege attempted to minimize the results of his BAC tests to the jury by asserting that his driving ability was not impaired by his elevated BAC. Consequently, Micklege did not "admit" culpability to DUI-alcohol, 75 Pa.C.S.A. § 3802(a)(1), and Dr. Winek's testimony was necessary to refute Micklege's arguments in favor of his acquittal on that charge. Further, the record is clear that the Commonwealth sought reimbursement of Dr. Winek's fees for the first trial only and not for the second trial, where his testimony from the prior trial was read into the record. Accordingly, Micklege's issue is without merit and, therefore, fails.
¶ 12 In sum, we vacate the restitution component of Micklege's sentence and remand for resentencing. We affirm the balance of the judgment of sentence.
¶ 13 Judgment of sentence vacated in part. Case remanded for resentencing. Jurisdiction relinquished.
¶ 14 DONOHUE, J. Notes Dissent.