J-S61014-17
2017 PA Super 348
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN MICHAEL ROTOLA
Appellant No. 3678 EDA 2016
Appeal from the Judgment of Sentence September 20, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000282-2016
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
OPINION BY LAZARUS, J.: FILED NOVEMBER 06, 2017
John Michael Rotola appeals from the trial court’s judgment of
sentence, entered in the Court of Common Pleas of Monroe County, following
his open guilty plea to theft of property lost, mislaid or delivered by mistake
(M-1),1 ordering him to serve 9-24 months’, less one day, imprisonment,
and pay restitution in the amount of $25,000, jointly and severally with his
co-defendant.2 After careful review, we vacate and remand.
The trial court summarized the relevant facts underlying this case as
follows:
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3924.
2 The trial court also granted Rotola 57 days’ credit for time served.
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On October 25, 2015, Pocono Mountain Regional Police
Department received a call from Theresa Mahoney[], regarding a
theft at her residence, located at 191 Flame Drive, Tunkhannock
Township, Monroe County. Theresa had arrived home to find her
front door damaged and her television and $15,000-$20,000
worth of jewelry missing. Mahoney advised officers that there
had been multiple burglaries and thefts in the neighborhood
since her neighbor Thomas Pollard [] moved in with his mother
at 222 Flame Drive.
A database search on Leadsonline showed that a Thomas Pollard
of 222 Flame Drive sold jewelry to P&J Coin and Gold Exchange
in Broadheadsville, PA. Mahoney later identified several pieces
of unique jewelry on display at the pawn shop as belonging to
her and stolen from her residence. On November 11, 2015, a
search warrant was served at Pollard’s residence. After the
search was concluded, Detective Kenneth Lenning [] and
Detective Ryan Venneman [] interviewed Pollard. Officers also
spoke with community members in the development who
advised . . . [Detective] Lenning that the police should look into
Pollard’s brother, John Rotola, and Catherine McDonnell, both
residents of the development.
A database search on Leadsonline showed that a Catherine
McDonnell sold several pieces of jewelry to P&J Coin and Gold
Exchange in Broadheadsville, PA. Mahoney was shown pictures
of the various items sold to the pawn shop and identified all the
pieces of jewelry as belonging to her and stolen from her
residence. Mahoney also identified a heart-shaped pendant and
ring on display at the pawn shop as belonging to her. A receipt
on Leadsonline showed that Rebecca Heddy of Effort, PA had
sold the jewelry to the pawn shop.
On November 11, 2015[,] Lenning received a call from
[Defendant] advising him that he had some information for him
regarding the recent burglaries in his neighborhood. Rotola
advised Lenning and Venneman that he got himself wrapped up
in the burglaries that were going on in the community. He
stated that one night he was driving around the development
with his brother, Pollard, when they ran into their friend Adam
Lugo. Lugo asked Pollard if he would sell some jewelry for him.
Pollard agreed and Rotola drove his brother to P&J Pawn shop
where they sold the jewelry. The next day Rotola noticed some
jewelry inside his truck. After asking around to see if any of his
friends left it in the truck, he decided it had probably fallen out
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of the bag of jewelry his brother had the day before. Rotola
asked his friend Catherine McDonnell to go with him to the pawn
shop and sell the jewelry for him because he did not have any
identification. Rotola admitted that he drove McDonnell to the
pawn shop on two separate occasions to sell the jewelry he
found.
On November 13, 2015, Lenning and Venneman interviewed
Rebecca Heddy at her residence. Heddy stated that she received
a phone call from Rotola asking her to come to his residence
because he had something to talk to her about. Heddy stated
that Rotola told her that he needed money to feed his children
and asked if she would sell some of his wife’s jewelry. Heddy
agreed to give Rotola $50 in exchange for the bag of jewelry
which she later sold for over $200 to P&J Pawn Shop.
Trial Court Opinion, 1/17/17, at 1-3.
On June 27, 2016, Rotola pled guilty to one count of theft of property,
lost, mislaid, or delivered by mistake. On September 19, 2016, Rotola was
sentenced to 9-24 months’, minus one day, incarceration in the Monroe
County Correctional Facility and ordered to pay $25,934.44 in restitution to
the victim and $120.27 to American Modern Insurance Group. On
September 29, 2016, Rotola filed a motion to reconsider sentence requesting
amendment of the restitution amount. On October 31, 2016, after a
hearing, the court granted Rotola’s motion and modified the restitution
portion of Rotola’s sentence to $25,000, jointly and severally with his co-
defendant.3
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3 In modifying the restitution part of Rotola’s sentence, the court noted that
in the criminal information Rotola was charged with theft, where the stolen
property was valued at more than $2,000. N.T. Reconsideration of Sentence
Hearing, 10/31/16, at 3; Criminal Information, 7/7/16, at 1.
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Rotola filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On appeal,
Rotola presents a single issue for our review: Whether the lower court
abused its discretion at the time of sentencing by ordering that [Rotola] pay
restitution in an amount that was [neither] commensurate with his degree of
criminality nor supported by the record?
“Although an award of restitution lies within the discretion of the [trial]
court, it should not be speculative or excessive and we must vacate a
restitution [o]rder which is not supported by the record.” Commonwealth
v. Balisteri, 478 A.2d 5, 9 (Pa. Super. 1984). Mandatory restitution, as
part of a defendant’s sentence, is authorized by 18 Pa.C.S. § 1106, which
states, in relevant part:
§ 1106. Restitution for injuries to person or property
(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.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss.
* * *
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(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 . . . 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.
* * *
(4)
(i) It shall be the responsibility of the district attorneys
of the respective counties to make a recommendation
to the court at or prior to the time of sentencing as to
the amount of restitution to be ordered. This
recommendation shall be based upon information
solicited by the district attorney and received from the
victim.
(ii) Where the district attorney has solicited information
from the victims as provided in subparagraph (i) and
has received no response, the district attorney shall,
based on other available information, make a
recommendation to the court for restitution.
18 Pa.C.S. § 1106.
An appeal from an order of restitution based upon a claim that it is
unsupported by the record challenges the legality, rather than the
discretionary aspects, of sentencing; as such, it is a non-waivable matter.
Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010);
Commonwealth v. Daniels, 656 A.2d 539 (Pa. Super. 1994). The
determination as to whether a trial court imposed an illegal sentence is a
question of law; an appellate court’s standard of review in cases dealing with
questions of law is plenary. Id.
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Rotola claims that the amount of restitution ordered by the trial court
is neither supported by the record nor a direct result of his conduct.
Specifically, he asserts that there was no nexus to the offense for which he
pled guilty and the amount ordered, where he was not responsible for the
burglary that led to the victim’s loss. Rather, he claims that he merely “sold
a relatively small portion of the items stolen from the victim to a pawn
shop.” Appellant’s Brief, at 9.
In Commonwealth v. Reed, 543 A.2d 587 (Pa. Super. 1988), our
Court vacated a defendant’s restitution sentence of $6,205.71 because
“there was no evidence to show a causal connection between the total losses
sustained [by the victim] and [the defendant’s] role in receiving some of the
property stolen.” Id. at 589. In Reed, the bills of information listed the
property stolen and the estimated value of each item. In total, the evidence
showed that the loss caused by defendant’s conduct did not exceed $480.00.
Accordingly, the Court determined that the order of restitution was illegal
because it was not supported by the record, and it vacated the defendant’s
sentence. Id. at 590.
Here, by selling the victim’s jewelry to a pawn shop, Rotola caused the
victim’s property to be unlawfully obtained; thus, pursuant to section 1106,
restitution is mandatory. When imposed as a sentence, the injury to
property or person for which restitution is ordered must directly result from
the crime. 18 Pa.C.S. § 1106(a). While Rotola may feel that he is less
culpable for the loss caused to the victim because he did not actually break
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into the victim’s home and steal her possessions, as the trial court noted,
Rotola and Pollard acted together criminally to cause a single harm to the
victim and, accordingly, properly ordered that Rotola make restitution jointly
and severally with his co-defendant.
However, even where the injury to the victim may have directly
resulted from a defendant’s criminal acts, it is still necessary that “the
amount of the ‘full restitution’ be determined under the adversarial system
with considerations of due process.” Commonwealth v. Atanasio, 997
A.2d 1181, 1183 (Pa. Super. 2010). Here, Rotola entered into an open
guilty plea, specifically indicating in his written colloquy that “there are no
agreements for sentencing except for [the Commonwealth withdrawing
remaining charges].” Written Guilty Plea Colloquy, 6/23/16, at ¶¶ 4, 8.
Moreover, the written plea only informs Rotola about the maximum penalty
and offense grading for his charged offense, theft (18 Pa.C.S § 3924) and
the sentencing guideline ranges for the offense. Id. Nowhere in the entire
plea agreement, however, is restitution mentioned. Furthermore, the docket
does not reflect that an oral plea colloquy or a restitution hearing was ever
held.
Although a plea agreement occurs in a criminal context, it
remains contractual in nature and is to be analyzed under
contract-law standards. Furthermore, disputes over any
particular term of a plea agreement must be resolved by
objective standards. A determination of exactly what promises
constitute the plea bargain must be based upon the totality of
the surrounding circumstances and involves a case-by-case
adjudication.
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Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995)
(citations omitted).
In Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), the
defendant, who had also pled guilty to theft offenses, directly challenged his
restitution sentence, ordered jointly and severally with co-defendants. In
Rush, the defendant “was made fully aware, prior to entering the plea, that
the court would impose a specific amount of restitution upon acceptance of
the plea, and whereby the defendant agreed to accept restitution set in a co-
defendant’s case for the same crime.” Id. at 808. Specifically, the trial
judge notified the defendant, in open court, of his intention, upon
acceptance of the plea, to impose the restitution jointly and severally with
his co-defendant. Id. at 809. At the conclusion of the colloquy proceeding,
the Commonwealth recited its recommended sentence, including the joint
and several restitution sentence. Id. In concluding that the restitution
sentence was legal, the court noted that the defendant “had a full
understanding of the nature and consequences of his plea and . . . knowingly
and voluntarily decided to enter the plea ‘which encompassed an agreement
to pay $28,450 in restitution’ [and where] the amount in restitution was
already established and agreed-upon as stipulated in the written plea
petition as well as on the record orally at the plea hearing.” Id. (emphasis
added).
In finding that the amount of restitution was supported by the record,
the Rush Court noted that the trial judge had also presided over the
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evidentiary hearing held in regard to the restitution owed by the co-
defendant who was an accomplice to the crimes. In addition, our Court
recognized that before the defendant entered his guilty plea, the trial judge
had “clearly explained that the victim’s testimony, as to the value of the
stolen property, supported restitution in the amount at issue.” Id.
Here, the court did not make Rotola fully aware, as part of his guilty
plea, that it would impose mandatory restitution as part of his sentence. At
the sentencing hearing, the court did not state the amount and method of
restitution on the record, prior to entering its sentencing order, and the
Commonwealth did not make a recommendation to the court, at or prior to
the time of sentencing, as to the amount of restitution to be ordered or
enter evidence to support the amount of the victim’s losses. See 18 Pa.C.S.
§ 1106(c)(3)(i).
Under such circumstances where there is nothing in the record
indicating that Rotola was apprised of the fact that mandatory restitution
would be imposed as part of his direct, criminal sentence, and where there is
no support for the amount ordered, we question the voluntary, knowing and
intelligent nature of Rotola’s plea.4 See Daniels, supra (where ADA did not
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4 Pursuant to Pa.R.Crim.P. 590, in order to ensure a voluntary, knowing and
intelligent plea, our Supreme Court has required that the trial court ask the
following questions at the time of the guilty plea: the nature of the charges
to which defendant is pleading guilty; a factual basis for the plea; that the
defendant is presumed innocent until proven guilty; that the defendant is
aware of permissible ranges of sentences and/or fines for offenses charged;
(Footnote Continued Next Page)
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state on record that plea bargain involved $5,000 fine and where there was
nothing in record showing defendant was informed that mandatory minimum
sentencing provision required both imprisonment and fine, judgment of
sentence vacated because court was not justified in accepting defendant’s
guilty plea). We remind the trial court that while full restitution under
section 1106(c) is mandatory, it is still necessary that defendants agree to
restitution, as part of the plea bargaining process, openly on the record.
Commonwealth v. Anderson, 995 A.2d 184 (Pa. super. 2010) (plea
agreement remains contractual in nature; promises constituting plea bargain
must be based upon totality of surrounding circumstances); Kroh, supra.
We recognize that this is not a case where the trial court failed to
specify the exact amount of restitution, delegated the duties to set
restitution to an agency, or left the amount of restitution open to further
review and adjustment. See Commonwealth v. Gentry, 101 A.3d 813
(Pa. Super. 2014); Commonwealth v. Mariani, 869 A.2d 484 (Pa. Super.
2005); Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004).
Under such cases, a reviewing court would simply vacate the restitution
portion of a defendant’s sentence and remand for resentencing. Here, the
(Footnote Continued) _______________________
aware that judge is not bound by terms of plea agreement tendered unless
judge accepts agreement. Because section 1106(a) restitution is
mandatory, the trial court should have made Rotola aware of this prescribed
punishment in his plea agreement.
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very integrity of Rotola’s plea is undermined where he was never informed
that restitution was mandated upon his theft conviction. Accordingly, we
vacate Rotola’s judgment of sentence and remand for trial. Rush, supra.5
Judgment of sentence vacated; case remanded for proceedings
consistent with this decision. Jurisdiction relinquished.
Judge Ransom joins the Opinion.
Judge Platt files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2017
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5 We note that Rotola’s ability to pay is irrelevant to his restitution sentence
where the court does not need to consider a defendant’s ability to pay at the
time it imposes restitution. Rush, supra. Rather, the defendant’s ability is
only considered upon default. Commonwealth v. Colon, 708 A.2d 1279
(Pa. Super. 1998).
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