The PA Superior Court recently decided the case of Commonwealth v. Whatley, No. 1820 WDA 2017 (Pa. Super. 10/18/2019), holding that the trial court’s failure to determine Whatley’s ability to actually pay the $50,0000 restitution ordered by the trial court rendered the sentence an illegal sentence. 

Whatley entered a negotiated guilty plea to two counts of arson (endangering property–reckless endangerment of inhabited building), one count of arson (intent to destroy unoccupied building), and one count of risking catastrophe. 

The trial court sentenced Whatley to five years of probation. Upon agreement of the parties, the court ordered a restitution amount of zero, but left restitution open for motion by the parties within thirty days. 

Restitution hearings were subsequently held after which time the trial court set restitution in the amount of $50,000.00 as a condition of Whatley’s probation. The trial court denied Whatley’s motion to reconsider, and he subsequently appealed to the PA. Superior Court.

The Superior Court first explained the distinction between restitution that is ordered as a direct sentence, and restitution that is imposed as a condition of probation.  


“As a direct sentence, restitution is authorized by [the Crimes Code, pursuant to] 18 Pa.C.S.A. § 1106, which mandates that courts shall sentence offenders to make restitution in certain cases of injury to persons or property. Such restitution is limited to direct victims of the crime and requires a direct nexus between the loss and the amount of restitution. 


When “restitution is imposed as a condition of probation pursuant to section 9754 [of the Judicial Code, 42 Pa.C.S.A. § 9754], its purpose is to rehabilitate the defendant and provide some redress to the victim. Under section 9754, the sentencing court is given the flexibility to fashion the condition to rehabilitate the defendant. Therefore, the requirement of a nexus between the loss and amount of restitution is relaxed. Notably, restitution imposed under section 9754 also is unique in that it requires a court to explicitly consider a defendant’s ability to pay.” (citations omitted, emphasis added.)

The Superior Court then explained that “where a sentencing court fails to consider a defendant’s ability to pay prior to imposing restitution as a probationary condition, the order of restitution constitutes an illegal sentence.” (emphasis added.) 

The appellate court then concluded that Whatley’s case, the record reflected that the sentencing court failed to consider Whatley’s ability to pay prior to issuing its order imposing restitution. And, “by failing to consider [Whatley’s] ability to pay prior to imposing restitution as a condition of his probation pursuant to section 9754(c)(8), the [trial] court exceeded its statutory authority.”

Accordingly, the Superior Court held that the restitution order imposed by the trial court constituted an illegal sentence, the judgment of sentence was vacated, and the matter remanded for sentencing consistent with the Superior Court’s decision.


COMMONWEALTH V. WHATLEY, No. 1820 WDA 2017 (Pa. Super. 10/18/2019).

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