*1 ELLIOTT, EAKIN and Before FORD OLSZEWSKI, JJ. ELLIOTT, Judge:
FORD entered appellant On October one count driv- plea of nolo contendere influence, 75 Pa.C.S.A. 3731(a)(1), exchange for which Com- months of 23 agreed to a sentence monwealth *2 1280 mandatory agreement
of intermediate
The
restitution sections. The Sen-
provided
days
partial
provides:
confinement
Code now
Prison,
County
by
the Adams
followed
(c) Mandatory restitution.—In addition to
arrest,
days of house
with restitution to be
the alternatives set forth
subsection
by
determined
the court at the time of sen-
(a) of this section
of which is inter-
[one
(R.
33-34.)
tencing.
punishment]
mediate
the court shall or-
January
At
on
court
compensate
der the defendant
to
recently
mandatory
relied
enacted
of his criminal conduct for
victim
Sentencing
restitution section of the
Code to
injury
or
that he sustained.
appellant’s
determine that
the victim of
subsection,
purposes
For
of this
restitution,
driving
drunk
was entitled to full
term Victim’ shall be as defined
sec-
insurer,
including restitution
his
to
without
April
tion 479.1 of the act of
(State-
regard
appellant’s ability
to
to
(P.L. 177,
175),
No.
known as The Ad-
Pa.R.App.P.1925,2/24/97
ment
ministrative Code
9721(c).)
1, citing
Appellant
42 Pa.C.S.A.
challenges
applicability
mandatory
plain language
42 Pa.C.S.A.
restitution statute to a sentence of intermedi-
applies
of this
it
section indicates
punishment,
ate
the trial court’s determina-
punishment;
sentences
company
tion that the
was a
insurance
vic-
therefore,
appellant’s
we find no merit
tim,
the trial
court’s refusal to consider
challenge
first
to the restitution order. See
appellant’s ability
evidence of
restitu-
(“Except
provided
also Pa.C.S.A.
3.)
(Appellant’s
tion.
brief at
We affirm.
(relating
partic-
section 1933 of this title
whenever,
general),
ular controls
in the same
Challenges
appropriateness
to the
statute,
irreconcilable,
several clauses are
generally
a sentence of restitution are
con
position
clause last in order of date or
shall
challenges
legality
sidered
to the
of the sen
prevail.”).
We turn then to
claim
tence. Commonwealth v.
Pa.Super.
(1995),
an insurer is not a victim under the
al
denied,
Sentencing
locatur
545 Pa.
A.2d
(1996),
Balisteri,
citing
Code, incorporat
Administrative
(1984)
(other
(10) To make restitution of the fruits of
act.
reparations,
the crime or to make
§ 180-9.1.
71 P.S.
amount,
an
for the loss or
affordable
caused
the crime.
“victim,”
In addition to this definition of
9763(b)(10).
Legislature
promulgated
has
a second
definition
its recent amendments
Both the
Code and the Crimes
provides:
Code. This definition
Code have
include Crimes
hampered, we
significantly
479.1 of our review
in section
‘Victim.’ As defined
sub-
appellant raises a
(P.L.
175),
if
9, 1929
must next decide
No.
the act
question.
stantial
Code of
known as the Administrative
includes the Crime Victim’s
The term
that his
Appellant claims
compensation
if
has
Compensation Fund
*3
considered,
required by the
as
pay
Compen
by
paid
the Crime Victim’s
been
in
applicable to
Sentencing
provisions
Code
any
insur
Fund to the victim
sation
a
This claim raises
termediate
compensated the
company that has
ance
61,
666 A.2d
question.
Id.
substantial
contract.
for loss under an insurance
victim
ap
(“a
when
question arises
substantial
310
1106(h).
18 Pa.C.S.A.
by
‘actions
the
pellant can show
to
supra, appellant was ordered
As noted
sentencing code
court inconsistent with
’
Code,
Sentencing
pay restitution under the
McLaugh
”),
v.
quoting
...
Commonwealth
the General
not the
Code. While
Crimes
610,
lin,
277, 290-293,
Super.
574 A.2d
Pa.
Sentencing
Assembly did not amend
616,
denied,
(1990),
Pa.
appeal
include insurers
its definition
Code to
denied,
(1991),
502 U.S.
cert.
“victim,”
this court
panel
a recent en banc
(1991).
116 L.Ed.2d
112 S.Ct.
definition of
concluded that “the broadened
result,
the issue.
As a
we shall address
company who
to include an insurance
‘victim’
Sentencing
both the
previously
As
applies to
consequent
a
loss
has suffered
have
and the Crimes Code
Code
provisions. 18 Pa.
both relevant restitution
a
resti-
to include
1106(c)
amended,
as
Pa.C.S.A.
C.SA.
section
The Crimes Code
tution section.
9721(c)
amended,
180-9.1.” Com
71 P.S.
part:
pertinent
provides
Layhue,
v.
monwealth
(c) Mandatory restitution.—
(1996) (en banc).
result,
a
As
A.2d
full restitution:
The court shall order
case,
that in our
the insurer was
we conclude
(i)
finan-
purposes
Regardless
of the current
a “victim” for
defendant,
ap
Sentencing
turn to
so
Code. We therefore
cial resources
issue,
fullest
pellant’s
regarding
the sentenc
the victim with the
third
compensation
failure to consider evidence of his
for
loss.
court’s
restitution
ability
pay
ordering restitution.
shall not reduce a
when
court
by any
that the victim
award
amount
implicates the
We note first that this issue
from the Crime Victim’s
has received
discretionary aspects
sentence.
gov-
or other
Compensation Board
Walker,
supra at
Commonwealth v.
agency
shall order
ernmental
but
(“challenges alleging that a sen
A.2d at 307
any
or-
pay
restitution
defendant
of restitution is excessive under
tence
compensat-
previously
for loss
dered
challenges to the discre
circumstances [are]
Vic-
by the
to the Crime
ed
board
]”). Appellant
tionary aspects
sentencing[
or other
Compensation Fund
tim’s
comply
requirements
has failed to
when the claim
designated account
discretionary
raising
challenge
to the
for
agency
ad-
government
involves
sentence, pursuant
to Pa.
aspects
his
place
board.
dition to or
2119(f).
v. Tulad
R.App.P.
Commonwealth
a restitu-
not reduce
The court shall
(1987).
ziecki,
As a
sions of both the Crimes Code at the same tencing Code were amended practice restitution or [T]he time, day. Prior to widely effective on the same reparation as such a condition is victim). uphold injury therefore appellant sen- We could 1. We note that could have been restitution sentence based tenced restitution under the Crimes Code be- 3731(a)(1) legal theory. separate § See Commonwealth v. Pa.C.S.A. cause his violation of 75 Harner, 21, 702, (1992) 14, bodily injury Pa. 617 A.2d to the victim. resulted in serious 504, apply, (finding § Fuqua, 18 Pa.C.S.A. 1106 did not See Commonwealth v. 511, 10, 24, upholding (uphold- of restitution under 42 28 n. 10 but sentence n. 9754, applicable § prop- to a sentence of Pa.C.S.A. a sentence of restitution for holding may Fuqua probation, “we affirm the erty § under 18 Pa.C.S.A. 1106 after 3731(a)(1)); § there was source of au guilty violating accord court if found 55-57, thority supra judgment of sentence—even where at for the Commonwealth v. suggested was not to or known (upholding an order of restitution the source A.2d at 307-08 (cita sentencing[]”) lower court at the time of where Walker's violation of 75 omitted). 3731(a)(1) bodily tion resulted in serious de- fines,” provides that if a defendant statutes, now as other sec- passage, these as well costs, fine, court payment of a faults in the during Governor tions that were revised sentence, “the Crime,” imposition of un- after “Special on had Ridge’s Session judge or senior authority or a senior issuing revisions. Most of the dergone numerous hearing to justice may ... conduct a floor of the House and district discussion on the financial- the defendant is advisability legali- whether determine concerned Senate 9730(b)(1), pay.” 42 Pa.C.S.A juvenile ly of- able to ty mandatory restitution for See, July P.L. No. parents. for exam- fenders their and/or is days. If the defendant effective Legislative No. ple, H.R. Journal may authority pay, appropriate 25, 1995, of 1995 at able to Special First Session to a collec- (Pa.1995); delinquent account over Legislative turn the H.R. Journal Id. imprisonment. impose Special agency February First Ses- No. 9730(b)(2). If, however, (Pa.1995). Unfortu- of 1995 at 35-41 sion single pay immediately or unable to have the benefit of discus- nately, we do not remittance, authority appropriate Judiciary the bill in the Committees sion of Nevertheless, payments. it for installment of the House and Senate. 9730(b)(3). determining the amount of In on the appears from the limited discussion installments, authority: appropriate chambers that members floor both Assembly did not differentiate be- General financial re- shall consider the defendant’s *5 rather, provisions; they were tween the two sources, ability to make the defendant’s example, as one. For when the bill treated reparations the nature restitution and and provisions presented containing both impose on payment the will of the burden passage, Heckler the Senate for final Senator in If the defendant is de- the defendant. observed: [appro- the payment fault of a or advises imminent, President, priate authority] that default is just I want to make a few
Mr. may authority] schedule [appropriate there the brief remarks about this bill because payment schedule. At rehearing on the confusion. It has has been considerable has the bur- times, rehearing I the defendant and number condi- proving changes of financial noting point at this what this den of think it bears is without being tion such that the defendant bill contains and what we are called payment schedule. The legisla- means to meet the upon morning. to vote on this This ac- authority] may extend or [appropriate in provides schedule, it unaltered or leave system criminal court of our celerate the adult period to a of com- particu- the defendant so that where the facts of a sentence State authori- munity [appropriate as the give rise to the con- service lar criminal conviction just practicable under ty] in finds to be that restitution to the victim is clusion order, impose the circumstances. the court must such a resti- and that order is then avail- tution order section, clear that From this it is the enforcement of the court able for both Assembly the initial intended General judgment. future of a civil and as a basis mandatory restitution under sentence an court is mandated to make such 9721(c) solely upon “the § be based criminal con- in the case of an adult order only if the by the victim: injury” sustained or longer provi- The bill no contains viction. au- appropriate defaults juvenile system of our sions as to the defendant’s thority consider the State. 9763(b)(10), § relied recognize that We Legislative Journal No. pari S. in must be read by appellant, at 129 Special of 1995 First Session § materia with (Pa.1995). (“Statutes or 1 Pa.C.SA. pari materia when are parts of statutes Assembly that the note also General We things or persons or they to the same relate Sentencing Code § 9730 of the things.”). persons same class apply as as to 1996 to to restitution well 9763(b)(10)requires section, plain language That entitled and fines. court costs take into account costs, sentencing court to “Payment of court ability pay inconsistent the manifest defendant s res “construction Assembly.” 1 part intent of the General Pa.C.S. titution as of a sentence Nevertheless, analysis offered already 1901. While punishment.2 as not majority persuasive, is the intent of the Gen ed, later amendments to the statute indicate Assembly by no eral means manifest legislative clear intent defendant be Accordingly, apply this matter. would required compensate the victim for “the construction, statutory require which rules injury he 42 Pa. sustained.” prefer plain meaning of us to the statute 9721(c). Only upon C.S.A. default is de suspicions over our as to the General Assem ability to be considered. fendant’s Because, however, bly’s intent. the court 9730. We must therefore once could have awarded full restitution without again guided by Statutory the Rules of be. considering pay by the defendant’s Construction, particular simply electing to award restitution under 1934, which, noted, provides, already 1, I Code, Majority at 1282 n. see the Crimes “Except provided in section 1933 of this concur the result. (relating particular general), title controls statute, whenever, in the same several claus irreconcilable,
es are the clause last order position prevail.” shall As a re date
sult, grant appellant we no relief on this final issue. HOSPITALS, HEALTH PINNACLE reasons, foregoing For all of the we affirm Harrisburg Merger to Successor judgment of sentence. Hospital, Appellant,
OLSZEWSKI, J., Concurring files a Opinion. DAUPHIN COUNTY BOARD OF AS APPEALS, County Dau SESSMENT OLSZEWSKI, Judge, concurring: *6 City phin, the School District of the of It is with the utmost reticence that I am Harrisburg, City Harrisburg. of my distinguished constrained differ HOSPITALS, HEALTH PINNACLE colleagues on the issue of whether the Sen by Merger to Successor tencing Code mandates full restitution Harrisburg Hospital of sentences intermediate majority acknowledges “plain that lan 9763(b)(10) guage requires of the sentenc DAUPHIN COUNTY BOARD OF AS ing court to take into account the defendant’s APPEALS; County Dau of SESSMENT ordering when restitution as Harrisburg; phin; City of School part punish of a sentence of City Harrisburg. District of the (footnote Majority at omit
ment.” Appeal DAUPHIN, of COUNTY OF ted). majority disregards nevertheless Appellant. unambiguous language because it con interpretation of flicts with their the “clear Pennsylvania. Commonwealth Court legislative intent.” Id. The rules statuto Argued 1997. “[wjhen ry construction words 26, 1998. Decided Jan. ambigui a statute are clear and free from all Reargument March Denied ty, disregarded of it not to be the letter pretext spirit.” 1 pursuing its Pa. recognize these rules C.S.
only apply they not result in a when do panel distinguished juvenile governed restitution in court is 2. A recent of this court 6352, Disposition delinquent sentence of restitution in criminal court from a Pa.C.S.A. child, court, juvenile In and held that the Crimes Code. Interest similar sentence in alia, Dublinski, consider, juve- supra juvenile at 830. We thus find Dublinski court must inter distinguishable earning capacity from the instant case in restitution. likewise nile’s Dublinski, imposed which the court Interest In (Pa.Super.1997). As the Dublinski court