J-S13011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JERMAINE L. MARTIN

Appellant No. 1362 MDA 2019

Appeal from the Judgment of Sentence Entered May 3, 2019

In the Court of Common Pleas of Berks County

Criminal Division at No: CP-06-CR-0001842-2016

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED JULY 13, 2020

Appellant, Jermaine L. Martin, appeals from the May 3, 2019 judgment 

of sentence imposing seven years of probation and $2,182.00 in restitution to 

Hertz Corporation (“Hertz”) for theft of leased property.1 We affirm.

Appellant pled guilty to the aforementioned offense at a May 3, 2019 

guilty plea colloquy and sentencing. He admitted he rented a 2015 Chevrolet 

Cruze from Hertz and never returned it. Police eventually recovered the 

vehicle for Hertz. The trial court accepted the plea and imposed sentence as 

set forth above. At that same proceeding, the trial court imposed sentence at 

docket number 442 of 2016 (“Number 442”), which is presently on appeal in 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S.A. § 3932(a). 
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a companion case at 1361 MDA 2019. At Number 442, the trial court imposed 

restitution of $48,789.76 the Wilson Junior Soccer Club (“WJSC”). In the 

instant matter, the trial court directed that the WJSC receive priority over 

Hertz in receiving restitution payments. The trial court denied Appellant’s 

timely post-sentence motion, and this timely appeal followed. 

Appellant presents two questions for our review: 

1. Whether the trial court imposed an illegal sentence when it 

imposed restitution from an unrelated criminal docket in the 

instant matter? 

2. Whether the trial court erred by imposing a sentence of 

seven (7) years probation consecutive to the sentence imposed in 

[Number 442], when the aforementioned docket has no nexus to 

the instant docket and when the Commonwealth recommended, 

and [Appellant] requested, a concurrent sentence. 

Appellant’s Brief at 8. 

The first issue need not detain us long. Appellant asserts, correctly, that 

an order of restitution must flow directly from damages in the case. The 

Pennsylvania Crimes Code provides as follows: 

(a) General rule.--Upon conviction for any crime wherein:

(1) property of a victim has been stolen, converted or 

otherwise unlawfully obtained, or its value substantially decreased 

as a direct result of the crime; or

(2) the victim, if an individual, suffered personal injury 

directly resulting from the crime,

the offender shall be sentenced to make restitution in 

addition to the punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a); see also, Commonwealth v. Harner, 617 A.2d 702 

705 (Pa. 1992) (“holding that § 1106 is applicable only upon conviction for a 
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crime wherein property has been stolen, converted, unlawfully obtained or its 

value substantially decreased, or where the victim suffers personal injury 

directly resulting from a crime.”). Furthermore, § 1106(c) provides that the 

trial court “shall” set priority of payment when it orders restitution to more 

than one victim at a time. 18 Pa.C.S.A. § 1106(c). 

Imposition of restitution without statutory authority implicates the 

legality of a sentence. Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa. 

Super. 2018). Instantly, the trial court acted exactly in accord with § 1106. 

Appellant admitted that he leased a car from Hertz and did not return it, and 

he admitted that Hertz suffered $2182.00 in damages. The trial court ordered 

restitution in that amount. Contrary to Appellant’s argument, the trial court 

did not impose restitution from an unrelated matter (i.e. Number 442). The 

trial court referenced Number 442 because it was statutorily required to 

address priority of payment under § 1106. Thus, the fact that the trial court 

ordered the WJSC to receive priority of payment over Hertz does not render 

the sentence illegal. 

In his second argument, Appellant claims the trial court abused its 

sentencing discretion in imposing a seven-year probation term to run 

consecutive to the sentence at Number 442. In order to preserve a challenge 

to the trial court’s sentencing discretion, an appellant must (1) file a timely 

post-sentence motion; (2) file a timely notice of appeal; (3) include in his 

appellate brief at concise statement of the reasons relied upon for allowance 
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of appeal pursuant to Pa.R.A.P. 2119(f); and (4) present a substantial

question for review. Commonwealth v. Glass, 50 A.3d 720, 726 (Pa. Super. 

2012), appeal denied, 63 A.3d 774 (Pa. 2013). Appellant has complied with 

the first three requirements. We therefore must determine whether Appellant 

raises a substantial question. “A substantial question exists “only when the 

appellant advances a colorable argument that the sentencing judge's actions 

were either: (1) inconsistent with a specific provision of the Sentencing Code; 

or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Id. at 727. 

In his Pa.R.A.P. 2119(f) statement, Appellant claims his sentence in this 

case was motivated by the facts of Number 442. That is, Appellant claims the 

trial court based its sentence on conduct other than the conduct at issue in 

this case. We conclude this argument raises a substantial question. We 

therefore proceed to the merits. 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge. The standard employed when reviewing the 

discretionary aspects of sentencing is very narrow. We may 

reverse only if the sentencing court abused its discretion or 

committed an error of law. A sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment.

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, exercised 

its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision. We must accord 

the sentencing court's decision great weight because it was in the 

best position to review the defendant's character, defiance or 

indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007). 
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In the argument section of his brief, Appellant claims the trial court 

abused its discretion in considering the restitution Appellant owed at Number 

442. That is, the trial court imposed seven years of probation here, but noted 

that this sentence could be terminated without further petition to the trial 

court if Appellant completed his restitution payments prior to the expiration of 

his sentence at Number 442. N.T. Guilty Plea and Sentencing, 5/3/19, at 24. 

We conclude that the record contradicts Appellant’s argument. The trial 

court did not impose a more severe sentence based on the circumstances of 

Number 442. Rather, the trial court made it possible for Appellant to serve 

no sentence at all in this if he makes full restitution prior to the completion 

of his sentence at 442. The court had discretion to run this sentence 

consecutive to Number 441. Commonwealth v. Mouzon, 828 A.2d 1126, 

1130 (Pa. 2003). Furthermore, the applicable standard guideline range called 

for three to twelve months of incarceration. N.T. Guilty Plea and Sentencing, 

5/3/19, at 10. Appellant identifies no basis upon which the trial court abused 

its discretion in imposing a mitigated sentence to run consecutively to the 

sentence at Number 442. 

Based on the foregoing, we conclude that Appellant has not raised any 

meritorious challenge to his sentence. We therefore affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/13/2020