Judges Opinions, — February 8, 2023 12:04 — 0 Comments

Commonwealth of Pennsylvania, v. Sandra A. Rittle

Commonwealth of Pennsylvania, v. Sandra A. Rittle

 

Criminal Action-Law-Sentencing-Restitution-Burden of Proof-Endangering the Welfare of Children-Childcare Provider-Injury to Child-Cost of Replacement Childcare Services-Emergency Childcare Services-Temporary Basis

 

Sandra A. Rittle (“Defendant”) was convicted of offenses involving the use of excessive force that caused bruising upon a two (2) year old child for whom she was providing babysitting services.  At sentencing, the Commonwealth requested restitution in the amount of $8,165.00 for replacement babysitting services necessitated by Defendant’s criminal activity under the rationale that the victim’s family would not have needed to procure childcare services at a greater cost had Defendant not committed the crimes in question.

 

  1. Title 18 Pa.C.S. § 1106 authorizes the payment of restitution directly resulting from a crime.

 

  1. For restitution to be imposed, there must be a direct nexus between the restitution ordered and the crime of which the defendant was convicted.

 

  1. The Commonwealth carries the burden of proving entitlement to restitution.

 

  1. Although it is mandatory under § 1106 that full restitution be ordered, it is necessary that the amount of the full restitution be determined under the adversarial system with considerations of due process.

 

  1. Restitution is appropriate to reimburse a victim’s family for emergent childcare expenses on a temporary basis if a childcare provider no longer may provide services due to criminal activity committed against a child in that provider’s care, not on a permanent or long term basis for alternative childcare services.

 

  1. Restitution will be awarded in an amount to compensate for four (4) weeks of childcare expenses, which constitutes a reasonable time for the victim’s family to procure long-term alternative childcare services.

 

L.C.C.C.P. No. CP-38-CR-0001474-2020, Opinion by Bradford H. Charles, Judge, April 7, 2022.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1474-2020

  1. :       

                                                                   :

SANDRA A. RITTLE                                 :

:

ORDER OF COURT

 

 

AND NOW, this 7th day of April, 2022, in accordance with the attached Opinion, the Sentencing Order entered in this case on January 12, 2022 is amended to read as follows:

Restitution is ordered to be paid to the Crime Victim’s Compensation Fund in the amount of $760.00.

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

Cc:    Court Administration (order only)

Scott J. Gaugler, Esq.//DA’s Office

Jeremy D. Wagner, Esq.// 6 E. Main St., PO Box 223, Palmyra PA 17078

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1474-2020

  1. :       

                                                                   :

SANDRA A. RITTLE                                 :

:

APPEARANCES

 

Scott J. Gaugler, Esquire                                For Commonwealth of

DISTRICT ATTORNEY                                       Pennsylvania

 

Jeremy D. Wagner, Esquire                             For Sandra A. Rittle

        

OPINION BY CHARLES, J., April 7, 2022

 

Before us is a dispute about restitution.  At Sentencing on January 12, 2022, the Commonwealth sought restitution for “replacement babysitting services” in the amount of $8,165.00.  Because we expressed some skepticism about the amount of restitution sought, we deferred a final decision regarding restitution and ordered both parties to submit briefs regarding the issue.  We now publish this Opinion in support of our decision to deny the amount of restitution requested by the Commonwealth.[1]

 

 

  1. FACTS

The Defendant is 69-years of age.  For most of her adult life, she worked as a caregiver for children.  Unfortunately, the Defendant became frustrated one day and used excessive force when changing the diaper of a “fussy” child.  This excessive force caused bruising to the 2-year old child that was ultimately photographed and documented by physicians at the Hershey Medical Center.

At Sentencing, the Defendant presented copious evidence about her body of lifetime work as a caregiver for children.  Parents of children to whom she provided services appeared in Court to testify on her behalf.  Other parents wrote letters in support of her.  Information was also presented that the Defendant was selected to supervise the care of children at her church.

This Court stated at Sentencing:

“There is a disconnect between the plethora of positive information presented by numerous people and the incident involving the 2-year-old victim in this case.  The only way this Court can reconcile everything is to conclude that the Defendant is no longer  young enough to be trusted with caring for young children.  We recognize that at age 68 the Defendant no longer has the ability and endurance she once had.  Therefore, we conclude that the Defendant’s age and resulting frustration lead her to cause the injuries that are now before this Court…. We do not believe the Defendant is an evil person or has evil intent.  However, we conclude that she should no longer be supervising children.  The primary goal of this Court Order would be to prevent the Defendant from undertaking that role again.” (Sentencing N.T. 13).

 

At Sentencing, the Commonwealth presented a Request for Restitution of $8,165.00.  The Court questioned the amount of restitution.  The Commonwealth argued that because the Crime Victim Compensation program provided money to the victim’s family for replacement babysitting services, this Court should order the restitution as requested.  The Court responded that the victim would have needed childcare services regardless  of whether the incident involving the Defendant occurred.  We stated at Sentencing:

“Everybody who has children has to pay childcare one way or another.  Yeah, if she – if she caused injury and those injuries had to be physically treated by a doctor and there are expenses for that, absolutely, positively, that is restitution.  But the fact that this victim had to get childcare services somewhere else, which would have happened anyway.  Even if she had retired and not committed a crime, that would have happened anyway.” (N.T. 9).

 

Ultimately, we solicited briefs from both parties regarding the issue.  The Defendant filed a brief as requested.  The Commonwealth did not.[2]  We issue this Opinion in support of our decision to deny the full amount of restitution requested by the Commonwealth.

 

 

 

 

  1. DISCUSSION

Section 1106 of Pennsylvania Crimes Code authorizes the payment of restitution “directly resulting from a crime”.  18 Pa.C.S.A. § 1106.  Our Appellate Courts have declared that for restitution to be imposed, “there must be a direct nexus between the restitution ordered and the crime for which the defendant was convicted.”  Commonwealth v. Risoldi, 238 A.3d 434, 461 (Pa. Super. 2020).

It is the Commonwealth’s burden to prove entitlement to restitution.  Commonwealth v. Boone, 862 A.2d 639 (Pa. Super. 2004).  When fashioning an Order of Restitution, the Court must ensure that the record contains a factual basis for the amount of restitution awarded. Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007).  “Although it is mandatory under § 1106(c) to award full restitution, it is still necessary that the amount of the ‘full restitution’ be determined under the adversarial system with considerations of due process.”  Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004).

The case of Commonwealth v. Harner, 617 A.2d 702 (Pa. 1982) is pertinent.  In Harner, the mother of a child defied a Custody Order and took her children from Pennsylvania to Louisiana.  The father of the children spent $14,000.00 for investigative services needed to track down the whereabouts of his children.  At Sentencing, the Commonwealth sought and received an award of $14,000.00 in the form of restitution.  The Defendant appealed.  Pennsylvania’s Superior Court affirmed the award of restitution and reasoned that Mr. Harner’s investigative costs were directly related to the criminal conduct of Mrs. Harner.  The Superior Court undertook a “but for” analysis and reasoned that Mr. Harner would not have been put in a position of spending $14,000.00 in investigative costs but for the action of Mrs. Harner.

Somewhat surprisingly, Pennsylvania Supreme Court reversed the Superior Court’s decision.  The Supreme Court reasoned:

“Unless the incidental costs Mr. Harner expended to locate his children have been made part of a criminal proceeding for which Appellant was convicted, it seems dubious to us that due process would permit a court to determine that these are losses that can be passed on to Appellant, as a sentence, under a theory that they flowed as a direct result of the crime for which Appellant was convicted…

 

To avoid the clear language of the statute, both the Superior Court and the Commonwealth incorrectly include the assets of the father as the property which had “its value substantially decreased as a direct result of the crime” in an attempt to make it appear that Mr. Harner’s loss was a direct result of Appellant’s conduct. We believe that this is a strained reading of an otherwise straightforward statute which is directed at giving the trial court the ability to sentence a defendant for the damage caused by him in the commission of a crime. Thus, where one steals an automobile valued at $15,000 and during a high speed chase is involved in a wreck which damages the auto, reducing its value to $5,000, it would be appropriate, in addition to incarceration, upon conviction for theft, to require the defendant to pay the victim $10,000 for the loss of value to the auto. It is impossible to separate the actions of the theft from the damage done to the car and in this sense the decrease in value to the car is a direct result of the crime. Here, it is possible to separate Appellant’s criminal conduct from the acts Mr. Harner engaged in to recover his children and it would seem to us that for that reason alone, Section 1106 would not be available to a sentencing court in deciding whether restitution is an appropriate alternative to incarceration.”

Harner, supra at 705.

In this case, the nexus between the Defendant’s crime and the claimed restitution is even more attenuated than was the nexus in Harner.  Fairly summarized, the Commonwealth argued at Sentencing that if the Defendant would not have abused the 2-year old child, then the Defendant would still be the child’s babysitter and the victim’s family would not have needed to procure a new babysitter at a greater cost.  We reject this argument.

The child in question would have required babysitting services regardless of whether a crime occurred.  Of necessity, there are costs pertaining to childcare services.  The fact that the victim’s family has chosen replacement childcare services that are more expensive that the services previously provided by the Defendant should not give rise to a claim for restitution.  While the Defendant remains responsible for the consequences of her own behavior relative to the child, she is not responsible for subsidizing expensive childcare services that the victim’s family chose and that were necessitated by virtue of the victim’s age regardless of any conduct of the Defendant.

We stated at Sentencing that: “Had the request been for a couple hundred dollars to temporarily get this family to a different childcare arrangement, I could understand that.” (N.T. 10).  To expand on our thought process, when a child is injured in daycare, that child needs to be removed from the environment that caused harm immediately.  Such removal will most often be unexpected and require immediate temporary replacement childcare services that will not be easy to obtain in an environment where childcare services are difficult to procure.  At least temporarily, the Defendant’s behavior undoubtedly placed the victim’s family in a difficult and potentially untenable situation.  Had one of the child’s parents been forced to take a temporary leave of absence from work in order to provide necessary childcare, we would not hesitate to award restitution for the loss of the parent’s income during this temporary leave of absence.  Using a similar rationale, we will similarly approve temporary restitution to reimburse the victim’s family for childcare expenses that the family needed to procure on an emergent basis.  We view this type of temporary emergency childcare as far different from a long-term subsidization of childcare expenses for the victim’s family.

We have investigated the cost of childcare in Lebanon County, Pennsylvania.  The website Care.com reported the cost of eight qualified daycare centers located in Lebanon.  These daycare centers provided childcare services at a cost of roughly $190 per week.  Using that figure, we will award restitution of $760.00.  This amount represents four (4) weeks of childcare expenses.  We consider four (4) weeks to be a reasonable time for the victim’s family to procure long-term replacement services that we will not order the Defendant to subsidize.  An Order to accomplish this decision will be entered today’s date.

[1] Ordinarily, restitution must be determined at Sentencing.  In this case, both parties agreed that a final decision regarding restitution could be deferred so that both sides could present briefs on the issue.  (Sentencing N.T. 14).

[2] When the Law Clerk of the undersigned reached out to the District Attorney’s Office to ascertain if a brief would be forthcoming, the Assistant District Attorney assigned to this case responded that no legal brief would be submitted.

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