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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE POPLAWSKI,
Appellant No. 289 MDA 2015
Appeal from the Judgment of Sentence Entered January 9, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002941-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 09, 2016
Appellant, George Poplawski, appeals from the judgment of sentence
of 18 months’ probation, plus $41,637 in restitution, imposed after he was
convicted of home improvement fraud. Appellant challenges the legality of
his restitution sentence, and also argues that the court imposed an amount
of restitution that is not supported by the record. After careful review, we
vacate Appellant’s sentence, in its entirety, and remand for resentencing.
The facts underlying Appellant’s conviction are unnecessary to the
disposition of this appeal. However, we briefly summarize the procedural
history of his case as follows. Appellant was charged with theft by deception
(18 Pa.C.S. § 3922(a)(1)), deceptive or fraudulent business practices (18
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Pa.C.S. § 4107(A)(2)), and home improvement fraud (18 Pa.C.S. §
517.8(a)(3)). After a jury trial in November of 2014, Appellant was
acquitted of the first two charges, but found guilty of home improvement
fraud. For purposes of grading that offense, the jury determined the amount
involved was $2,000 or less. See 73 Pa.C.S. § 517.8(c)(2)(ii) (“A violation
of subsection (a)(2) constitutes: … (ii) a misdemeanor of the first degree if
the amount of the payment retained is $2,000 or less….”).
On January 9, 2015, Appellant was sentenced to a term of 18 months’
probation. No amount of restitution was imposed on that date; instead, the
January 9, 2015 sentencing order stated, “Restitution hearing scheduled
for[] January 28, 2015.” On January 28, 2015, the court conducted a
hearing and ultimately imposed restitution in the amount of $41,637. The
court did not state, at any point during the January 28 th proceeding, that
restitution was a condition of Appellant’s probation. We also ascertain
nothing in the record that would support such a conclusion. Thus, we
consider Appellant’s restitution as a direct sentence. See Commonwealth
v. Deshong, 850 A.2d 712, 715 (Pa. Super. 2004) (concluding that
restitution was a direct sentence where it was not mentioned in the portion
of the sentencing order outlining the conditions of probation, and “the judge
did not say the restitution was a condition of probation” but, instead, the
court “simply ordered Deshong to pay it”).
Appellant filed a timely notice of appeal on February 4, 2015, and
timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise
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statement of errors complained of on appeal. Herein, Appellant presents
two issues for our review:
I. Whether the … trial court erred when it ordered [Appellant] to
pay restitution in the amount of $41,637.00 because that
amount is not supported by the record or [the] jury’s verdict and
exceeds the scope of the crime [for which] [Appellant] was found
guilty []?
II. Whether the … trial court was without jurisdiction to order
[Appellant] to pay restitution at the hearing on January 28,
2015, because the … trial court did not impose a specific amount
of restitution at the sentencing hearing on January 9, 2015,
when [Appellant] was sentenced to 18 months[’] probation?
Appellant’s Brief at 4.
Both of Appellant’s issues challenge his sentence of restitution. The
imposition of restitution is governed by 18 Pa.C.S. § 1106, which states, in
pertinent part:
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of
the crime, or wherein the victim suffered personal injury directly
resulting from the crime, the offender shall be sentenced to
make restitution in addition to the punishment prescribed
therefor.
…
(c) Mandatory restitution.--
…
(2) At the time of sentencing the court shall specify the
amount and method of restitution. In determining the
amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim's request for restitution as
presented to the district attorney in accordance with
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paragraph (4) and such other matters as it deems
appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
(iii) Shall not order incarceration of a defendant for
failure to pay restitution if the failure results from
the offender's inability to pay.
(iv) Shall consider any other preexisting orders
imposed on the defendant, including, but not limited
to, orders imposed under this title or any other title.
(3) The court may, at any time or upon the recommendation of
the district attorney that is based on information received from
the victim and the probation section of the county or other agent
designated by the county commissioners of the county with the
approval of the president judge to collect restitution, alter or
amend any order of restitution made pursuant to paragraph (2),
provided, however, that the court states its reasons and
conclusions as a matter of record for any change or amendment
to any previous order.
18 Pa.C.S. § 1106(a), (c).
For ease of disposition, we will begin by addressing Appellant’s second
issue. Essentially, Appellant avers that his restitution sentence is illegal, as
it was not imposed at the sentencing hearing on January 9, 2015. Appellant
maintains that “the trial court did not comply with the plain text” of section
1106(c)(2) because the court “did not order [] Appellant to pay a specific
amount of restitution at sentencing, but rather, the amount was to be
determined at a later hearing.” Appellant’s Brief at 11. According to
Appellant, the court’s belated imposition of restitution renders that sentence
illegal.
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We are compelled to agree based on the plain language of section
1106(c)(2), as well as two decisions by our Court, Commonwealth v.
Dinoia, 801 A.2d 1254 (Pa. Super. 2002), and Commonwealth v.
Mariani, 869 A.2d 484 (Pa. Super. 2005). In Dinoia, the appellant was
sentenced to imprisonment, a consecutive term of probation, and an “open”
amount of restitution. Id. at 1255. Eighteen months later, the court
imposed a specific sum of restitution. Id. This Court held that the
appellant’s sentence of restitution was illegal, reasoning:
[I]f restitution is ordered, the amount must be determined at the
time of sentencing, 18 Pa.C.S.A. § 1106(c)(2). [Section 1106]
also placed upon the Commonwealth the requirement that it
provide the court with its recommendation of the restitution
amount at or prior to the time of sentencing. 18 Pa.C.S.A. §
1106(c)(4). Although the statute provides for amendment or
modification of restitution “at any time,” 18 Pa.C.S.A. §
1106(c)(3), the modification refers to an order “made pursuant
to paragraph (2) ...” Id. Thus, the statute mandates an
initial determination of the amount of restitution at
sentencing. This provides the defendant with certainty as
to his sentence, and at the same time allows for
subsequent modification, if necessary. See 18 Pa.C.S.A. §
1106(c)(3); cf. 42 Pa.C.S.A. § 5505 (“Except as otherwise
provided or proscribed by law, a court upon notice to the parties
may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no
appeal from such order has been taken or allowed.”).
Id. at 1257 (italicized emphasis in original; bolded emphasis added).
After Dinoia, our Court in Mariani held that a sentence of restitution
was illegal under circumstances very similar to the present case. There,
Mariani was convicted of several offenses, including driving under the
influence of alcohol. Id. at 485. At the sentencing hearing, “[t]he trial court
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entered the term of imprisonment,” but “[t]hereafter … directed, without
objection, that the final restitution amount would be determined at a
separate hearing.” Id. Five months later, a restitution hearing was
conducted and an amount was imposed, despite Mariani’s objection “on the
basis that any sentence of restitution imposed after the sentencing hearing
was a priori illegal under 18 Pa.C.S.A. § 1106(c)(2), and violative of her due
process rights.” Id. On appeal, Mariani reiterated her challenge to the
legality of the court’s belated imposition of restitution, and we agreed with
her argument, stating:
18 Pa.C.S.A. § 1106(c)(2) provides that “[a]t the time of
sentencing, the court shall specify the amount and method of
restitution.” This Court has held that both imprisonment and
restitution elements of a judgment of sentence must be
imposed at the same proceeding in order to safeguard the
defendant's due process rights. Commonwealth v. Ortiz, 854
A.2d 1280 (Pa. Super. 2004) (en banc); [] Dinoia, 801 A.2d [at]
1256 []. [Mariani] argues that as a result of the hiatus between
the proceedings held here, the ordered restitution was rendered
illegal. … Despite the trial court's deliberate attempt to assure
that [Mariani’s] rights were protected by holding a separate
hearing, we are constrained by governing authority to agree with
[Mariani] that the sentence was illegal.
Id. at 485-86.
Here, as in Mariani, the trial court made no determination regarding
the amount of restitution at the sentencing hearing but, instead, conducted
a separate hearing before imposing restitution at a later date. We
acknowledge that unlike in Mariani, the court’s imposition of restitution on
January 28, 2015, was within the thirty-day time period in which the court
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had jurisdiction to modify its sentencing order. See 42 Pa.C.S. § 5505.
However, Dinoia makes clear that modification of restitution under section
1106(c)(3) is only permitted where an initial restitution determination is
made at the sentencing hearing in accordance with section 1106(c)(2).
Because here, no specific amount of restitution was ordered at the January
9, 2015 sentencing proceeding, the court could not add a sentence of
restitution on January 28, 2015.
Accordingly, we are compelled to conclude that the court’s imposition
of $41,637 in restitution on January 28, 2015, was illegal under the plain
language of section 1106(c)(2) and this Court’s holdings in Dinoia and
Mariani. We further conclude that pursuant to Mariani, the appropriate
relief is to vacate Appellant’s sentence, as a whole, and remand for
resentencing. After striking down Mariani’s restitution sentence as illegal,
we stated:
[R]estitution was an integral part of the sentencing scheme
fashioned by the trial court and acknowledged by [Mariani], who
expressly asserted her willingness to provide it. In this context
it must be remembered that “the primary purpose of restitution
is rehabilitation of the offender by impressing upon him that his
criminal conduct caused the victim's loss or personal injury and
that it is his responsibility to repair the loss or injury as far as
possible.” Commonwealth v. Runion, … 662 A.2d 617, 618
([Pa.] 1995). Thus recompense to the victim is secondary, as
“[a] sentence imposing restitution is not an award of damages.”
Commonwealth v. Wright, 722 A.2d 157, 160 (Pa. Super.
1998).
Mariani, 869 A.2d at 486.
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Presently, Appellant did not express a willingness to pay restitution at
the sentencing hearing on January 9, 2015. However, it is apparent from
the record that the imposition of restitution was an integral part of the trial
court’s sentencing scheme, and Appellant was aware of that fact based on
the court’s scheduling a restitution hearing. Accordingly, in line with our
decision in Mariani, we vacate Appellant’s sentence in its entirety and
remand for resentencing. Because of our decision, we need not address the
merits of Appellant’s first issue.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Shogan files a concurring statement in which President Judge
Emeritus Bender and Judge Platt join.
Judge Platt concurs in the result of this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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Com. v. Poplawski, G.
Combined Opinion