J-S67008-19
2020 PA Super 135
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA DOUGLAS LOCK :
:
Appellant : No. 1110 MDA 2019
Appeal from the Judgment of Sentence Entered June 13, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-SA-0000320-2018
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED: JUNE 8, 2020
Appellant, Joshua Douglas Lock, appeals from the judgment of sentence
entered on June 13, 2019. We affirm.
On September 3, 2018, Appellant was issued a non-traffic citation for
violating 3 P.S. § 459-305(a)(1) of the Dog Law. Section 459-305(a)(1),
which is a summary offense, declares:
(a) Confinement and control.--It shall be unlawful for the
owner or keeper of any dog to fail to keep at all times the
dog in any of the following manners:
(1) confined within the premises of the owner.
3 P.S. § 459-305(a)(1).
The citation declared: “[Appellant] failed to keep a dog confined to the
premises of the owner. Dog did attack and injure a neighbor’s cat.”
Non-Traffic Citation, 9/3/18, at 1.
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* Former Justice specially assigned to the Superior Court.
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On October 16, 2018, Appellant pleaded guilty to the charge in the
magisterial district court and the district court sentenced Appellant to pay a
$300.00 fine and $9,331.43 in restitution to the cat’s owner. See Certificate
of Disposition, 10/16/18, at 1. Appellant acknowledges that the $9,331.43
constitutes “the cost of the veterinary services provided to treat the injured
cat.” Appellant’s Brief at 2.
Appellant filed a timely appeal from his summary conviction and, on
April 26, 2019, Appellant appeared before the court of common pleas for a
trial de novo. During the trial, Appellant admitted his guilt and Appellant
further admitted: “I permitted one of our dogs to get loose, while the dog
was running off the leash, it attacked the cat and caused considerable harm
to the cat.” N.T. Trial, 4/26/19, at 1. Nevertheless, Appellant contended that
the magisterial district court erred in sentencing him to pay restitution. See
id. at 1-2. Specifically, Appellant claimed that the sentence of restitution was
illegal, as the applicable restitution statute, 18 Pa.C.S.A. § 1106, does not
permit restitution for veterinary bills that were necessary to treat the victim’s
injured cat. Id. at 4. According to Appellant, Section 1106 “limits the amount
of available restitution to the amount by which the value of the pet has been
substantially decreased.” Id. at 6.
On June 13, 2019, the trial court found Appellant guilty of the charged
summary offense and sentenced Appellant to pay a $300.00 fine and
$9,331.43 in restitution. Appellant filed a timey notice of appeal, raising two
claims:
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[1.] Whether restitution can be ordered in a prosecution for
injuries to an animal under the “Dog Law”[?]
[2.] Whether the trial court erred when it ordered restitution
for a property crime under 18 Pa.C.S. § 1106(a) which
exceeded the decrease in the value of the property returned
to the victim[?]
Appellant’s Brief at 1-2 (some capitalization omitted).1
“In the context of criminal proceedings, it is well-settled that an order
of restitution is not simply an award of damages, but, rather, a sentence.”
Commonwealth v. McKee, 38 A.3d 879, 880–881 (Pa. Super. 2012)
(quotations and citations omitted). Further, as our Supreme Court has held,
“restitution is a creature of statute and, without express legislative direction,
a court is powerless to direct a defendant to make restitution as part of a
sentence.” Commonwealth v. Harner,
617 A.2d 702, 704 (Pa. 1992).
In this case, the trial court imposed restitution as a part of Appellant's
direct sentence, in accordance with 18 Pa.C.S.A. § 1106. See Trial Court
Opinion, 6/13/19, at 1. In relevant part, at the time Appellant committed his
crime, Section 1106(a) read:
(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 . . . the offender shall be sentenced to
make restitution in addition to the punishment prescribed
therefor.
...
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1 For ease of discussion, we have renumbered Appellant’s claims on appeal.
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(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. . . .
18 Pa.C.S.A. § 1106 (effective January 31, 2005 to October 23, 2018).2
The above statute demands that the trial court order “full restitution . .
. to provide the victim with the fullest compensation for the loss.” Id. Our
Supreme Court has, however, held:
Because [18 Pa.C.S.A. § 1106] imposes restitution as part of
a sentence, its penal character must not be overlooked and
it would seem to us that restitution can be permitted under
18 Pa.C.S.A. § 1106 only as to losses for which the defendant
has been held criminally accountable. This is in keeping with
the well established principle that criminal statutes must be
strictly construed. See 1 Pa.C.S.A. § 1928(b)(1).
Harner, 617 A.2d at 705; see also Commonwealth v. Walker,
666 A.2d
301 (Pa. Super. 1995) (while drunk, the defendant was involved in a two-car
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2 On October 24, 2018, the legislature amended Section 1106. Nevertheless,
as we have held, the amendments are not retroactive. See, e.g.,
Commonwealth v. Hunt,
220 A.3d 582, 586 (Pa. Super. 2019) (“[w]e
decline to give retroactive effect to the October 24, 2018 amendments to
§ 1106”).
In this case, Appellant committed his offense on September 3, 2018 – prior to
the effective date of the amendments. Further, the parties agree that the
pre-amendment version of Section 1106 applies to this case. See Appellant’s
Brief at 4; Commonwealth’s Brief at 9. Thus, in this appeal, we apply the
version of Section 1106 that existed at the time Appellant committed his
offense. Notwithstanding this fact, for our purposes on this appeal, there is
no substantive difference between the statute that existed at the time
Appellant committed his offense and the current version of the statute.
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collision; he was thereafter convicted of driving under the influence of alcohol
(DUI); the Superior Court held that the trial court properly sentenced the
defendant to pay restitution, under Section 1106, for the personal injuries that
the occupants of the other car sustained in the crash because the defendant’s
“driving while under the influence was a substantial factor in causing the
injuries to the victims . . . it is impossible to separate appellant's driving under
the influence from the injuries resulting to the victims”); Commonwealth v.
Fuqua, 407 A.2d 24 (Pa. Super. 1979) (superseded by statute on other
grounds, as stated in Commonwealth v. Runion,
662 A.2d 617 (Pa. 1995))
(while drunk, the defendant lost control of his vehicle and drove into another
person’s house; after the defendant was convicted of DUI, the Superior Court
held that the trial court properly sentenced the defendant to pay restitution,
under Section 1106, to the house-owner for property damage incurred in the
crash, as the “damage was a direct result of [the defendant’s] crime of” DUI);
In re M.W.,
725 A.2d 729 (Pa. 1999) (“[w]hen [restitution is] imposed as a
[direct] sentence [under Section 1106], the injury to property . . . for which
restitution is ordered must directly result from the crime”).
We have explained that, under the plain terms of Section 1106(a), the
sentencing court “is statutorily required to impose restitution . . . when the
Commonwealth has established that the defendant committed a crime, the
victim suffered injury to person or property, and there exists a direct causal
nexus between the crime of which defendant was convicted and the loss or
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damage suffered by the victim.” Commonwealth v. Weir, 201 A.3d 163,
170 (Pa. Super. 2018).
We turn now to consider the precise nature of Appellant's challenges to
the trial court's restitution order. Regarding challenges to the imposition of
restitution, we have held:
the appellate courts have drawn a distinction between those
cases where the challenge is directed to the trial court's
[statutory] authority to impose restitution and those cases
where the challenge is premised upon a claim that the
restitution order is excessive. When the 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); see also
In re M.W.,
725 A.2d at 731 (holding that, when an issue “centers upon [the
court's] statutory authority” to impose the sentence, as opposed to the
“court's exercise of discretion in fashioning” the sentence, the issue implicates
the legality of the sentence); Walker,
666 A.2d at 307 (“challenges alleging
that a sentence of restitution is excessive under the circumstances have been
held by this court to be challenges to the discretionary aspects of sentencing”).
Both of Appellant’s claims on appeal contend that the trial court lacked
statutory authority to order restitution for veterinary bills the victim paid to
treat his injured cat. Appellant’s Brief at 4. These claims implicate the legality
of Appellant’s sentence. See Oree, 911 A.2d at 173. Thus, since Appellant’s
challenges go to the legality of his sentence, “our standard of review
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[regarding his challenges] is de novo and our scope of review is plenary.”
Commonwealth v. Saunders, 946 A.2d 776, 787 n. 12 (Pa. Super. 2008).
First, Appellant claims that restitution is not one of the prescribed
penalties for violating the Dog Law and, thus, the trial court did not have the
ability to sentence him to pay restitution for violating the Dog Law. Appellant’s
Brief at 6. This claim fails.
As quoted above, Section 1106(a) declares: “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, .
. . the offender shall be sentenced to make restitution in addition to the
punishment prescribed therefor.” 18 Pa.C.S.A. § 1106(a) (effective January
31, 2005 to October 23, 2018). Section 1106(h) then defines the term “crime”
as “[a]ny offense punishable under this title [(i.e. Title 18)] or by a
magisterial district judge.” 18 Pa.C.S.A. § 1106(h) (emphasis added).
Appellant’s violation of 3 P.S. § 459-305(a)(1) of the Dog Law was a
summary offense and, thus, “punishable . . . by a magisterial district judge.”
See id.; see also 3 P.S. § 459-903(b)(1) (declaring that, for the first offense,
a person who violates § 459-305 commits a summary offense); 42 Pa.C.S.A.
§ 1515(a)(1) (declaring that magisterial district judges have jurisdiction over
summary offenses). Therefore, under the express terms of Section 1106, the
trial court possessed statutory authority to order Appellant to pay restitution
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for violating 3 P.S. § 459-305(a)(1) of the Dog Law. Appellant’s claim to the
contrary is belied by the plain language of Section 1106 and, thus, fails. 3
Next, Appellant claims the trial court lacked statutory authority to order
restitution for the amount the victim spent to treat his injured cat. According
to Appellant:
[Section 1106] authorizes the imposition of restitution for an
injury to property to the extent . . . that the value of the
property has been decreased. No other applicable basis
exists for determining the amount of restitution. Accordingly,
the calculation of restitution based upon the cost of
veterinary care incurred in the treatment of the injured
animal . . . is patently illegal. . . . [R]estitution [] cannot be
determined by the cost of the veterinary services provided in
treating the injuries to the cat. [Restitution] is limited to the
decrease in the value of the cat.
Appellant’s Brief at 4-5.
Appellant’s argument is unavailing. As we have held, “[r]estitution, . .
. as it relates to property damage, can be made by either the return of the
original property or the payment of money necessary to replace, or to repair
the damage to, the property.” Commonwealth v. Genovese, 675 A.2d
331, 333 (Pa. Super. 1996) (emphasis added). Simply stated, the victim in
this case was statutorily entitled to “full restitution” “so as to provide [him]
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3 To the extent Appellant claims that the order of restitution is illegal because
the Dog Law contains its own provision for penalties and this provision does
not specifically authorize restitution, Appellant’s claim also fails. See, e.g.,
Appellant’s Brief at 6. To be sure, Section 1106(a) specifically declares that
the trial court must order restitution “in addition to the punishment
prescribed” for the crime. 18 Pa.C.S.A. § 1106(a) (emphasis added).
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with the fullest compensation for [his] loss.” 18 Pa.C.S.A. § 1106(c). Further,
in accordance with our precedent, since Appellant’s dog injured (and did not
kill) the victim’s cat, the victim was statutorily entitled to restitution in the
amount necessary “to repair the damage to” his cat. See Genovese, 675
A.2d at 333. As Appellant admits that the $9,331.43 in restitution constitutes
“the cost of the veterinary services provided to treat the injured cat,” we
conclude that the trial court possessed statutory authority to order Appellant
to pay the victim restitution in the amount of $9,331.43 and that Appellant’s
illegal sentencing claim thus fails.4 See Appellant’s Brief at 2.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2020
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4 To the extent Appellant claims that the sentence of restitution is illegal
because the “cost of [the] veterinary care exceeds the value of the animal,”
Appellant’s claim is unsupported by the record and fails. See Appellant’s Reply
Brief at 2. Simply stated, the record does not contain any evidence regarding
the cat’s value. See N.T. Trial, 4/26/19, at 1-10. However, based upon the
record evidence, the trial court possessed the statutory authority to order
Appellant to pay restitution, to the victim, for the cost of the veterinary
services provided to treat the injured cat because: the Commonwealth proved
Appellant violated 3 P.S. § 459-305(a)(1) of the Dog Law and, as a direct
result of this crime, Appellant’s dog attacked the victim’s cat and caused
damages that required $9,331.43 to repair. See Weir, 201 A.3d at 170.
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