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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIELLE LYNNE DAVIS, :
:
Appellant : No. 632 WDA 2015
Appeal from the Judgment of Sentence March 20, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0017210-2014
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED OCTOBER 21, 2015
Appellant, Danielle Lynne Davis, appeals from the Allegheny County
Court of Common Pleas’ judgment of sentence. She claims the court’s
restitution order of $350 must be vacated because the Commonwealth failed
to present any evidence supporting the order.1 Appellant’s Brief at 14. The
trial court now agrees and recommends the order “be stricken.” Trial Ct.
*
Former Justice specially assigned to the Superior Court.
1
Claims directed to the trial court’s authority to impose restitution concern
the legality of sentence and cannot be waived. Commonwealth v. Oree,
911 A.2d 169, 172-73 (Pa. Super. 2006). Instantly, Appellant’s issue
challenges the court’s authority to impose restitution. Thus, “our standard
of review . . . is de novo and our scope of review is plenary.”
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014) (citations
and internal alterations and quotation marks omitted). Moreover, although
Appellant did not object to the imposition of restitution, we decline to find
waiver. See id.
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Op., 6/12/15, at 2. The Commonwealth opposes and claims that it provided
sufficient evidentiary support for the court’s restitution order.
Commonwealth’s Brief at 4. Alternatively, it suggests that the case be
remanded for a hearing. Id. We vacate the judgment of sentence and
remand for further proceedings consistent with this order.
The parties are well versed in the factual and procedural history of this
case. Briefly, Appellant admitted she picked up the victim’s pocketbook
after the victim dropped it on the floor at a casino. The court convened a
guilty plea hearing at which the Commonwealth recited the allegations and
averred the pocketbook contained $350. Appellant conceded to theft by
unlawful taking,2 but denied there was money in the pocketbook. She
requested a separate hearing to dispute the restitution amount. The trial
court accepted Appellant’s plea and immediately sentenced her to two years’
probation and $350 in restitution. The court, in response to this timely
appeal, suggests there was no money in the pocketbook when Appellant
took it. Trial Court Op. at 1-2.
Section 1106 of the Crimes Code states, “Upon conviction for any
crime wherein property has been stolen, converted or otherwise unlawfully
obtained . . . the offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.” 18 Pa.C.S. § 1106(a). Restitution
2
18 Pa.C.S. § 3921(a).
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is mandatory and a part of a sentence. Commonwealth v. Pleger, 934
A.2d 715, 720 (Pa. Super. 2007).
When determining the amount of restitution, Section 1106(c)(2)
requires the trial court to “consider the extent of injury suffered by the
victim, the victim's request for restitution as presented to the district
attorney in accordance with paragraph (4) and such other matters as it
deems appropriate.” 18 Pa.C.S. § 1106(c)(2)(i). Under Paragraph 4 of
subsection (c), the Commonwealth bears the responsibility to recommend
restitution based on information solicited from the victim, or if the victim
does not respond, based on other available information. 18 Pa.C.S. §
1106(c)(4)(i)-(ii).
Instantly, because the trial court sentenced Appellant immediately
after accepting her plea, the Commonwealth did not have a meaningful
opportunity to provide a recommendation or substantiate its averment that
the pocketbook contained money when Appellant took it. See 18 Pa.C.S. §
1106(c)(2)(i), (c)(4)(i)-(ii). Thus, we are constrained to vacate the
judgment of sentence and remand this matter for the court to determine
restitution pursuant to Section 1106. On remand, the court shall make a
record of its factual and credibility findings and legal conclusions.
Judgment of sentence vacated. Case remanded for proceeding
consistent with this order. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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