J-S95041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
ROBERT CANTAFIO,                          :
                                          :
                   Appellant              :            No. 218 EDA 2016

         Appeal from the Judgment of Sentence October 16, 2015
           in the Court of Common Pleas of Delaware County,
            Criminal Division, No(s): CP-23-CR-0001544-2015

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 14, 2017

        Robert Cantafio (“Cantafio”) appeals from the judgment of sentence

imposed following his conviction of two counts of possession of a controlled

substance with intent to deliver.1 We affirm in part, and vacate in part.

        On August 5, 2015, following a jury trial, Cantafio was convicted of

two counts of possession with intent to deliver. The trial court imposed an

aggregate prison sentence of three to six years, followed by three years of

probation, and ordered Cantafio to pay (1) $226 to the Pennsylvania State

Police for “lab fees;” and (2) $44 to the Delaware County Criminal

Investigation Division (for the cash paid to Cantafio by an undercover officer

during a controlled drug buy which led to his arrest). See Sentencing Order,

10/16/15. Cantafio filed a timely Motion for reconsideration, which the trial

court denied on December 8, 2015. Cantafio thereafter filed a timely Notice

1
    See 35 P.S. § 780-113(a)(30).
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of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.2

      On appeal, Cantafio raises the following issues for our review:

      1. Whether the restitution [O]rder is illegal because the County
         of Delaware, the putative beneficiary of $270.00 [in]
         restitution[,] is not a [“]victim[”] pursuant to the Crime
         Victims Act[,] 18 Pa.C.S.A. [§] 11.101[?]

      2. Whether the [t]rial [c]ourt erred when it failed to apply the []
         Recidivism Risk Reduction Incentive [(“RRRI”)] because []
         Cantafio had a second degree felony conviction for
         aggravated assault on his record from the year 2000? []

Brief for Appellant at 5.

      In his first issue, Cantafio contends that the portion of the Sentencing

Order imposing restitution is invalid because the Commonwealth is not a

“victim” under the Crime Victims Acts. Id. at 8. Cantafio asserts that the

restitution Order is a nullity, and should be excised from the judgment of

sentence. Id. at 9. Cantafio claims that, because the restitution Order is


2
  In his Concise Statement, Cantafio raised only a single issue, challenging
the sufficiency of the evidence. Cantafio did not raise any of the issues he
now presents for our review. However, as each of the issues he now raises
presents a challenge to the legality of his sentence, we may review them.
See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)
(holding that a challenge to the legality of a sentence is never waived so
long as a court has jurisdiction to address the claim); see also
Commonwealth v. Dietrich, 970 A.2d 1131, 1133 (Pa. 2009) (holding that
a claim that restitution was entered without jurisdiction implicates the
legality of sentence); Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.
Super. 2014) (holding that a claim that the sentencing court failed to impose
a RRRI minimum implicates the legality of sentence); Commonwealth v.
Garzone, 993 A.2d 1245, 1255 (Pa. Super. 2010) (holding that a claim that
the trial court lacked authority to impose lab fees presents a challenge to the
legality of the sentence).


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integral to the sentence imposed, its removal will disrupt the trial court’s

overall sentencing scheme. Id. at 10. On this basis, Cantafio argues that

the judgment of sentence should be vacated, and the case remanded for

resentencing. Id.

      “The determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.”    Commonwealth v. Nuse, 976 A.2d 1191,

1193 (Pa. Super. 2009) (quoting Commonwealth v. Love, 957 A.2d 765,

767 (Pa. Super. 2008)).

      Initially, we disagree with Cantafio’s characterization of the lab fees as

“restitution.” An order of restitution is intended “to provide the victim with

the    fullest   compensation      for     the   loss.”        18     Pa.C.S.A.

§ 1106(c)(1)(i). However, lab fees are a “cost” related to the prosecution of

a criminal case. See 42 Pa.C.S.A. § 1725.3.3 “Costs are ‘penal sanctions’

arising from a criminal conviction and, therefore, the imposition of costs [is]

part of the judgment of sentence.”       Garzone, 993 A.2d at 1255 (citation

omitted). Because the imposition of lab fees is mandatory, we conclude that

this aspect of Cantafio’s judgment of sentence is not illegal, and he is not

entitled to relief on this claim. See 42 Pa.C.S.A. § 1725.3.

3
  Pursuant to the version of section 1725.3 that was in effect at the time of
Cantafio’s sentencing, a person who is convicted of “a violation of The
Controlled Substance, Drug, Device and Cosmetic Act shall, in addition to
any fines, penalties or costs, in every case where laboratory services were
required to prosecute the crime or violation, be sentenced to pay a criminal
laboratory user fee ….” 42 Pa.C.S.A. § 1725.3.


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      With regard to Cantafio’s claim regarding the requirement that he pay

$44 to the Delaware County Criminal Investigation Division, we must

determine whether that entity was eligible to receive restitution under the

circumstances of this case. See Commonwealth v. Veon, 2016 Pa. LEXIS

2613, at *32 (Pa. 2016).      The payment of restitution is governed by 18

Pa.C.S.A. § 1106, which provides, in relevant part, as follows:

      (a) General rule.—Upon conviction for any crime wherein
      property has been stolen, converted or otherwise unlawfully
      obtained, or its value substantially decreased as a direct result of
      the crime, or 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
      therefor.

                                  ****

      (c) Mandatory restitution.—

      (1) The court shall order full restitution:

      (i) . . . 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 governmental 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. . . .

      (ii) If restitution to more than one person is set at the same
      time, the court shall set priorities of payment. However, when
      establishing priorities, the court shall order payment in the
      following order:

      (A) The victim.

      (B) The Crime Victim’s Compensation Board.


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     (C) Any other government agency which has provided
     reimbursement to the victim as a result of the defendant’s
     criminal conduct.

     (D) Any insurance company which has provided reimbursement
     to the victim as a result of the defendant’s criminal conduct.

                               ****

     (h) Definitions.—As used in this section, the following words
     and phrases shall have the meanings given to them in this
     subsection:

                               ****

     “Victim.” As defined in section 479.1 of the act of April 9, 1929
     (P.L. 177, No. 175), known as The Administrative Code of 1929.
     The term includes the Crime Victim Compensation Fund if
     compensation has been paid by the Crime Victim’s Compensation
     Fund to the victim and any insurance company that has
     compensated the victim for loss under an insurance contract.

18 Pa.C.S.A. § 1106 (footnote omitted).4

     The Crime Victims Act defines “victim” as follows:

     (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.[A.] (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).



4
  Section 479.1, formerly codified at 71 P.S. § 180-9.1, has since been
recodified in the Crime Victims Act, 18 P.S. §§ 11.101, et seq.


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      Section 3121 (relating to rape).

      (4) A family member of a homicide victim, including stepbrothers
      or stepsisters, stepchildren, stepparents or a fiancé, 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.

18 P.S. § 11.103. A “[d]irect victim” is defined by the same section as “[a]n

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.” Id. (emphasis added).

      In construing these provisions, our Supreme Court recently ruled that

the term “victim,” as contemplated by section 11.103, “describes a human

being, not a government agency.”         Veon, 2016 Pa. LEXIS 2613, at *47.

Thus, the Delaware County Criminal Investigation Division is not entitled to

receive restitution as a “victim.” Id.

      The Court further determined that,

      [a]lthough subsection 1106(c)(1)(i)’s provisions regarding
      “victims” and “other government agenc[ies]” reveals that the
      General Assembly intended that restitution reach certain
      Commonwealth agencies in a manner that did not depend upon
      identifying such agencies as “victims,” it nonetheless required
      first that the agency in question have provided compensation to
      a victim so defined.

Id.

      Here, there is no evidence of record that the Delaware County Criminal

Investigation Division provided compensation to a “victim,” as that term has

been defined by the General Assembly.         Therefore, the Delaware County



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Criminal Investigation Division was not entitled to restitution under section

1106, and the trial court erred by ruling otherwise. Accordingly, we vacate

the portion of Cantafio’s judgment of sentence ordering him to pay $44 in

restitution to the Delaware County Criminal Investigation Division.

        In his second issue, Cantafio contends that the trial court erred in

denying him RRRI based on the prosecutor’s assertion that Cantafio had

been convicted of aggravated assault in 2000.      Brief for Appellant at 13.

Cantafio asserts that “[t]he record does not reflect more than a single count,

makes no mention of and does not identify a victim, [and] the judicial

district is not identified.” Id. Cantafio claims that the trial court erred by

“presuming the very existence of such a conviction made [him] ineligible [for

RRRI,]” rather than “delv[ing] into the contested 2000 conviction.” Id.

        Notably, Cantafio does not deny his 2000 conviction for aggravated

assault. Nor does he deny that such conviction rendered him ineligible for

RRRI.     Rather, Cantafio essentially argues that the trial court lacked

sufficient evidence of his 2000 conviction.    However, our review discloses

that, prior to sentencing, the trial court ordered a presentence investigation

report, which indicated that Cantafio pleaded guilty to aggravated assault on

September 20, 2000, and that he was sentenced to nine to 23 months in

prison, followed by two years of probation.5    Where a sentencing court is


5
 The presentence investigation report further indicated that Cantafio had
been granted probation on three prior occasions, had his probation revoked
on three occasions, had been granted parole on three occasions, had his


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informed by a PSI, it is presumed that the court is aware of all appropriate

sentencing factors and considerations.      See Commonwealth v. Ventura,

975 A.2d 1128, 1135 (Pa. Super. 2009). Accordingly, because the trial court

was informed by a presentence investigation report, it was aware of

Cantafio’s 2000 conviction for aggravated assault and, necessarily, his

ineligibility for RRRI. Thus, Cantafio is not entitled to relief on this claim.

      Judgment of sentence affirmed in part, and vacated as to the $44 in

restitution to the Delaware County Criminal Investigation Division only.

Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017




parole revoked on one occasion, and was serving four probationary
sentences at the time of sentencing.


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