J-S87002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID ANDREW WALES,

                            Appellant                No. 2246 MDA 2015


          Appeal from the Judgment of Sentence November 25, 2015
              in the Court of Common Pleas of Bradford County
              Criminal Division at No.: CP-08-CR-0000222-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 12, 2016

        Appellant, David Andrew Wales, appeals from his judgment of

sentence, following his counseled, negotiated guilty plea to one count of

criminal trespass.      Specifically, he challenges the amount of an order of

restitution. We affirm.

        Without permission, Appellant and his accomplice entered the Valley

Stockyards, an inactive warehouse formerly used for cattle auctions, which

was still equipped for operation but not open for business. Tom Hosking, the

owner (and former operator) had put it up for sale.1       The two trespassers

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*
    Retired Senior Judge assigned to the Superior Court.
1
  Mr. Hosking testified that he sold the property a few weeks before the
restitution hearing. (See N.T. Restitution Hearing, 11/25/15, at 2.). He
(Footnote Continued Next Page)
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proceeded to cause extensive damage to the exterior and interior of the

building as well as its contents. (See Trial Ct. Op., 4/20/16, at 1; see also

N.T. Restitution Hearing, at 3-4). Mr. Hosking testified that every window

but one was smashed, the restaurant and coolers were smashed, pots and

pans were broken, fluorescent lights were torn down and ripped out, etc. He

described the overall nature of the damage as “devastating.”                    (N.T.

Restitution Hearing, at 3).

      Police tracked the vandals through footprints in the snow, and

apprehended them at the home of the accomplice. (See Trial Ct. Op., at 1).

Appellant was charged with three counts of burglary, three counts of

criminal trespass, three counts of criminal conspiracy, and criminal mischief.

(See id.).

      However, Appellant entered a negotiated plea to one count of criminal

trespass, and agreed to pay restitution.                (See id.; see also N.T.

Sentencing, 10/15/15, at 5). In exchange, the trial court dismissed all the

remaining charges, as agreed to by the Commonwealth, and imposed the

recommended       sentence       of   eighteen    months’   probation.   (See   N.T.

Sentencing, at 8). Notably, the sentencing court had the benefit of a pre-

sentence investigation report (PSI). (See id. at 1).

                       _______________________
(Footnote Continued)

elected not to engage in a complete repair of the building, and wound up
accepting a sale price approximately $75,000.00 less than his asking price,
before the damage was done. (See Trial Court Opinion, 4/20/16, at 3).



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       Even so, counsel for Appellant challenged the amount of damages,

approximately forty-five thousand dollars, and requested a restitution

hearing, which the court granted.

       After the hearing on November 25, 2015, the court imposed an order

of restitution for $44,330.00, jointly and severally on Appellant and his co-

defendant. (See Trial Ct. Op., at 3; see also N.T. Restitution Hearing, at

37). The total amount included $19,875.00 in reimbursement to the victim’s

insurer and $24,455.00 directly to the victim, Mr. Hosking. The trial court

reduced the total by $750.00 on evidence that three computer monitors

valued at two hundred and fifty dollars each were six to nine years old and,

inferentially, substantially reduced in value.2 (See N.T. Restitution Hearing,

at 24, 36-37).

       Appellant timely appealed and, after an extension, filed a court-

ordered statement of errors, on February 17, 2016. See Pa.R.A.P. 1925(b).

The trial court filed an opinion on April 20, 2016. See Pa.R.A.P. 1925(a).

       Appellant presents two questions for our review:

              I. Did the trial court err by imposing an amount of
       restitution which was far in excess of the criminal conduct of
       [Appellant] and in an amount not supported by the evidence?

             II. Does the order of restitution fail to consider the
       Appellant’s limited mental abilities and earning ability?
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2
  Otherwise, the court does not specifically discuss, and the parties do not
argue, any distinctions in damages based on original cost of acquisition,
depreciation, or replacement value.



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(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       Challenges to the appropriateness of a sentence of restitution
       are generally considered challenges to the legality of the
       sentence. The legality of a sentence is an issue that cannot be
       waived. . . .

            In evaluating a trial court’s application of a statute, our
       standard of review is plenary and is limited to determining
       whether the trial court committed an error of law.

             Mandatory restitution is statutorily grounded in        two
       provisions,  42    Pa.Con.Stat.Ann.  §    9721(c)  and         18
       Pa.Con.Stat.Ann. § 1106(a).

                The Sentencing Code, 42 Pa.Con.Stat.Ann. § 9721(c)
          provides that 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.A.
          § 9721(c). The ordering of restitution is further defined by
          18 Pa.Con.Stat.Ann. § 1106(a). Section § 1106(a) sets
          forth the general rule that upon conviction for any
          crime wherein the victim suffered personal injury
          directly resulting from the crime, the offender shall
          be sentenced to make restitution in addition to the
          punishment prescribed therefore. 18 Pa.Con.Stat.Ann.
          § 1106(a)[.]

Commonwealth v. Langston, 904 A.2d 917, 922 (Pa. Super. 2006) (case

citations, internal quotation marks, and footnote omitted) (emphasis in

original).3

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3
   We are mindful that controlling authority provides that restitution is to be
determined at the time of sentencing. See 18 Pa.C.S.A. § 1106 (c)(2); see
also Commonwealth v. Dinoia, 801 A.2d 1254, 1256 (Pa. Super. 2002).
It is the responsibility of the district attorney to make a recommendation to
the court at or prior to the time of sentencing as to the amount of restitution
to be ordered. See 18 Pa.C.S.A. § 1106 (c)(4)(i). Here, the record is silent
(Footnote Continued Next Page)


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      In his first claim, Appellant challenges the order of restitution as

excessive and not supported by the evidence. (See Appellant’s Brief, at 4).

Appellant argues chiefly that the stockyard building had experienced prior

break-ins.    (See id. at 7-9).           He characterizes the victim’s testimony

concerning the value of the property as “self-serving” and speculates that an

unspecified amount of the damages may have been caused by previous

trespassers. (Id. at 8; see also id. at 8-9).

      However, this argument overlooks Appellant’s own guilty plea, and Mr.

Hosking’s testimony that his presentation of damages was limited to the

period between his last previous visit to the premises, about a week or two

earlier, and the time of the break-in by Appellant and his co-conspirator. It

bears noting that the trial court found Mr. Hosking’s testimony credible.

(See Trial Ct. Op., at 3, 5). We defer to the credibility determinations of the

trial court as fact finder. See Commonwealth v. O'Bryon, 820 A.2d 1287,

1290 (Pa. Super. 2003) (citation omitted).

      Furthermore, at the sentencing hearing, where he received the benefit

of a favorable negotiated plea, Appellant accepted full responsibility for his

                       _______________________
(Footnote Continued)

on any delay in notice of the Commonwealth’s recommendation of
restitution. However, we discern no prejudice in the brief delay for a
restitution hearing, which the record confirms was requested by counsel for
Appellant. Accordingly, we give the parties the benefit of the doubt, and will
review Appellant’s issues on the merits.




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actions, without qualification. (See N.T. Sentencing, at 5) (“I’d like to get a

job to pay off all the damages”).       However, at the restitution hearing,

counsel for Appellant went to great lengths to deny substantial responsibility

for damages on his behalf. She argued:

      [Appellant] isn’t trying to dispute [sic] that he’s completely in
      the clear on this. What we do dispute is the vast amount of
      damage attempting [sic] to be attributed to [Appellant]. This is
      a building that . . . was already in disrepair. . . . [S]uddenly
      every little thing that’s wrong with this old building . . . is
      attributable to [Appellant].

(N.T. Restitution Hearing, at 33-34).

      Appellant’s acceptance of full responsibility at the guilty plea hearing

when it was to his strategic benefit, followed by his generic renunciation,

through counsel, of that responsibility later at the restitution hearing is

unpersuasive, and fails to meet his burden of proving the amount of

restitution was not supported by the evidence.

      On independent review, we discern no error of law in the sentencing

court’s determination of restitution. Mr. Hosking testified to the damages in

detail, supported by an appraisal and a written estimate for repair and clean-

up.   (See N.T. Restitution Hearing, at 2-10).       Defense counsel cross–

examined him at length. (See id. at 10-30). Defense counsel’s argument

essentially addressed the scope of the damages (blaming prior trespassers,

and implicitly, his accomplice). (See id.). Except for the obsolete computer

equipment, counsel did not challenge specific amounts.




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          The trial court found nothing in the record to support Appellant’s

argument.         (See Trial Ct. Op., at 5).   We agree.      Appellant’s argument is

speculative and unsupported by the record. (See N.T. Restitution Hearing,

at 33-35; see also Appellant’s Brief, at 7-9). His first claim does not merit

relief.

          In his second issue, Appellant claims that the trial court failed to

consider his limited mental abilities and earning capacity. (See Appellant’s

Brief, at 4). He argues that the PSI notes he suffers from cerebral palsy,

ADHD,       and    an   unspecified   intellectual   disability.   (See   id.   at   9).

Preliminarily, we note that the identification of these conditions in the PSI is

based solely on Appellant’s self-reporting. Appellant offers no independent

medical diagnosis or other corroboration of his claims.                   Even more

importantly,

          where the sentencing judge had the benefit of a presentence
          investigation report, it will be presumed that he or she was
          aware of the relevant information regarding the defendant's
          character and weighed those considerations along with
          mitigating statutory factors. . . . The sentencing judge can
          satisfy the requirement that reasons for imposing sentence be
          placed on the record by indicating that he or she has been
          informed by the pre-sentencing report; thus properly considering
          and weighing all relevant factors.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (citations omitted).               Accordingly,

under well-settled authority, Appellant’s claim of insufficient consideration of

his alleged mental and physiological infirmities fails to overcome the


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presumption that the sentencing court properly weighed all relevant factors

identified in the PSI.4

       Appellant also argues that the trial court did not consider his “earning

ability.” (Appellant’s Brief at 4, 9-10). The trial court correctly found this

claim waived and properly disregarded this factor.       When a court orders

restitution, it must do so “[r]egardless of the current financial resources of

the defendant, so as to provide the victim with the fullest compensation for

the loss.” 18 Pa.C.S.A. § 1106(c)(1)(i). Evidence about Appellant’s ability

to pay restitution thus has no bearing on the final amount of restitution

ordered.    See Commonwealth v. Rush, 909 A.2d 805, 811 (Pa. Super.

2006) (citing Commonwealth v. Marshall Colon, 708 A.2d 1279, 1282

(Pa. Super. 1998)) (“the court need not consider the defendant’s ability to

pay at the time of imposing restitution, and the defendant's ability to pay

need only be considered upon default.”).

       His second claim is waived and would not merit relief.



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4
   Appellant has failed to include the PSI in the certified record. Inclusion in
the reproduced record does not remedy this deficit. See Commonwealth
v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006), appeal denied, 916 A.2d 632
(Pa. 2007). Nevertheless, there is no dispute, and the certified record
confirms, that the sentencing court had the benefit of a PSI. Therefore, it is
unnecessary for us to address the procedural defects of Appellant’s reference
to the PSI, and we decline to do so. When the record confirms that the
sentencing court acknowledged possession of a PSI, it is still presumed to
have weighed all relevant factors.



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      Our reasoning differs somewhat from that of the sentencing court.

However, we may affirm on any basis, so long as the result is legally correct.

See Lucas v. Lucas, 882 A.2d 523, 531 (Pa. Super. 2005).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




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