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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT CRAIG GULACK :
:
Appellant : No. 3112 EDA 2017
Appeal from the Judgment of Sentence September 8, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007043-2003
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 17, 2018
Appellant, Robert Gulack, appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County, which found
Appellant in violation of his probation for failing to pay full restitution in
compliance with a restitution order. We vacate in part and affirm in part.
On May 25, 2005, Appellant entered an open plea to a single count of
theft by deception in exchange for the Commonwealth's agreement to nolle
pros all remaining charges arising from his acts of motor vehicle fraud in and
prior to 2002, by which he and his father stole a total of $1,303,305.80 from
at least 36 different victims while running a car dealership. Notes of
Testimony ("N.T.") 5/26/05, at 3-5, 13-14. The trial court sentenced
Appellant on October 19, 2005, to nine to 23 months
of incarceration, followed by five years’ probation, and it ordered Appellant
to jointly and severally pay $1,303,305.80 restitution in monthly installments
____________________________________
* Former Justice specially assigned to the Superior Court.
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of $100.00 during the term of his probation. Specifically, the sentencing order
reads, "Defendant is sentenced to pay the costs of prosecution, and restitution
of $1,303,305.80 . . . within the months of supervision in monthly
installments as directed. Joint & several with co-defendant Stanley Gulack
0059-04[.]" Trial Court Order, 10/19/2005.
On August 12, 2012, Appellant stipulated to being in violation of his
probation for failure to pay full restitution. He did so with the understanding
that if he did not, he could be sentenced to three and one-half to seven years
of incarceration less any time he had already served in custody. The trial
court sentenced Appellant to a new five-year period of probation with the
same conditions, and Appellant continued to make monthly restitution
payments of $100 in compliance with the restitution order’s schedule of
payments.
On June 27, 2017, Appellant was served with a new notice of violation
of probation. On August 30, 2017, pursuant to a court notice, Appellant
appeared before the Honorable Kelly C. Wall for a Gagnon I hearing. The
court, also informed by party briefs, found Appellant to be in violation of his
probation for failing to pay the full amount of restitution, as he still owed
$1,254,943.90 jointly and severally with his father.
The court, however, recognized that Appellant had consistently made
the scheduled payments, such that it concluded recommitment was
unnecessary. Hence, Appellant was not required to report to probation or to
comply with any travel restrictions. Instead, on September 8, 2017, the court
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sentenced Appellant to a new five-year period of supervision, requiring only
payment of restitution in full through monthly restitution payments of
$100.00. Appellant timely filed the present appeal.
Appellant presents the following questions for our review:
I. [DID] THE TRIAL COURT ERR[ ] BY FINDING
APPELLANT IN VIOLATION OF HIS PROBATION FOR
FAILURE TO PAY RESTITUTION IN FULL?
II. [DID] THE TRIAL COURT ERR[ ] IN RESENTENCING
APPELLANT TO A NEW PERIOD OF FIVE (5) YEARS OF
PROBATION AND [WAS] SUCH SENTENCE [ ]
UNCONSTITUTIONAL BECAUSE IT RENDERS
APPELLANT ON PROBATION FOR PERPETUITY?
Appellant's brief, at 3.
We begin by noting our well-settled standard of review.
“It is well settled that a challenge to a court's authority to impose
restitution is generally considered to be a challenge to the legality
of the sentence.” Commonwealth v. Hall, 994 A.2d 1141, 1143
(Pa.Super. 2010) (en banc) (citation omitted), affirmed on other
grounds, ––– Pa. ––––, 80 A.3d 1204 (2013). “A challenge to
the legality of a sentence ... may be entertained as long as the
reviewing court has jurisdiction.” Commonwealth v.
Borovichka, 18 A.3d 1242, 1254 (Pa.Super. 2011) (citation
omitted). It is also well-established that “[i]f no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction.” Commonwealth v. Rivera, 95
A.3d 913, 915 (Pa.Super. 2014) (citation omitted). “An illegal
sentence must be vacated.” Id. “Issues relating to the legality
of a sentence are questions of law[; as a result, o]ur standard of
review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238
(Pa.Super. 2014) (citations omitted).
Commonwealth v. Gentry, 101 A.3d 813, 816–17 (Pa.Super. 2014).
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Appellant’s claims coalesce to challenge both the court’s determination
that he failed to comply with all conditions of his restitution obligation and the
court’s imposition of a new probationary sentence when he had already served
the maximum possible term for which he could be confined. Specifically, he
contends the court erroneously found he diverged from the terms of his
restitution where he has not missed a scheduled payment in nearly 12 ½
years. Despite what he calls his "full compliance with the precise, exact
language of his sentencing order," Appellant's brief, at 6, the trial court found
him in violation for failing to pay the entire restitution amount. Appellant also
maintains that extending his probationary period for another five-year term
as a result is unlawful.
To the extent Appellant challenges the legality of his new probationary
sentence, we agree that the trial court lacked authority to maintain
enforcement of its restitution order through imposition of a new probationary
sentence where he had already served the seven-year maximum term of
confinement applicable to his crime.
In the context of a criminal case, restitution may be imposed
either as a direct sentence pursuant to 18 Pa.C.S. § 1106(a) or as
a condition of probation pursuant to 42 Pa.C.S. § 9754. When
imposed as a sentence, the injury to property or person for which
restitution is ordered must directly result from the crime. See 18
Pa.C.S.A. § 1106(a); [Commonwealth v.] Harner, [ ] 617 A.2d
[702,] 704 [(Pa.Super. 1992)]. However, when restitution is
ordered as a condition of probation, the sentencing court is
accorded the latitude to fashion probationary conditions designed
to rehabilitate the defendant and provide some measure of
redress to the victim. Harner, [ ] 617 A.2d at 706. As this Court
stated in Harner:
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Such sentences are encouraged and give the trial
court the flexibility to determine all the direct and
indirect damages caused by a defendant and then
permit the court to order restitution so that the
defendant will understand the egregiousness of his
conduct, be deterred from repeating this conduct, and
be encouraged to live in a responsible way.
[Id.] at 707; see also Commonwealth v. Walton, [ ] 397 A.2d
1179, 1185 ([Pa.] 1979). Thus, the requirement of a nexus
between the damage and the offense is relaxed where restitution
is ordered as a condition of probation. See Harner, [ ] 617 A.2d
at 707 & n.3; see also 42 Pa.C.S. § 9754(c)(8).
Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017) (en banc)
(opinion in support of affirmance).
Restitution, imposed as a direct sentence, is set forth at Section 1106
of the Crimes Code, which provides 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.
(b) Condition of probation or parole.--Whenever restitution has
been ordered pursuant to subsection (a) and the offender has
been placed on probation or parole, his compliance with such
order may be made a condition of such probation or parole.
(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 as presented to the district attorney
in accordance with 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.
***
(e) Restitution payments and records. --Restitution, when ordered
by a judge, shall be made by the offender to the probation section
of the county in which he was convicted or to another agent
designated by the county commissioners with the approval of the
president judge of the county to collect restitution according to
the order of the court or, when ordered by a magisterial district
judge, shall be made to the magisterial district judge. The
probation section or other agent designated by the county
commissioners of the county with the approval of the president
judge to collect restitution and the magisterial district judge shall
maintain records of the restitution order and its satisfaction and
shall forward to the victim the property or payments made
pursuant to the restitution order.
(f) Noncompliance with restitution order. --Whenever the offender
shall fail to make restitution as provided in the order of a judge,
the probation section or other agent designated by the county
commissioners of the county with the approval of the president
judge to collect restitution shall notify the court within 20 days of
such failure. Whenever the offender shall fail to make restitution
within 20 days to a magisterial district judge, as ordered, the
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magisterial district judge shall declare the offender in contempt
and forward the case to the court of common pleas. Upon such
notice of failure to make restitution, or upon receipt of the
contempt decision from a magisterial district judge, the court shall
order a hearing to determine if the offender is in contempt of court
or has violated his probation or parole.
18 Pa.C.S.A § 1106(a), (b), (c)(1)(i), (c)(2)(i), (ii), (iii), and (iv), (e), and (f).
Here, the trial court entered its order of restitution at the time it imposed
sentence because it found Appellant “owes a significant amount of money to
numerous victims and this court has a duty to ensure the successful
completion of these payments to his victims.” Trial Court Opinion, 11/8/17,
at 2. As such, the court clearly imposed restitution as a component of
Appellant’s sentence pursuant to Section 1106, not as a condition of his
probation under Section 9754, in order to address victims’ losses resulting
directly from Appellant’s crimes. See Commonwealth v. Wright, 722 A.2d
157, 160 (Pa. Super. 1998) (victim's loss is direct result of defendant's offense
when it “flows from the conduct that is the basis of the crime for which ...
[the] defendant is held criminally accountable.”).
Therefore, because the court imposed restitution as part of Appellant’s
direct sentence and made it effective during Appellant’s probation pursuant to
Section 1106(b), the court lacked authority to conclude Appellant committed
a technical violation of his probation and resentence him to another term, as
Appellant’s seven-year maximum date for his third-degree felony had long
since expired. See 18 Pa.C.S.A. § 1103(3) (person convicted of felony of the
third-degree may be sentenced to imprisonment for a term not more than
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seven years). Thus, we are constrained to vacate that portion of the
sentencing order resentencing Appellant to a new five-year probationary term.
However, with respect to the part of the resentencing order directing
Appellant to continue paying restitution, we find the court was within its
authority to enforce its order of restitution against Appellant. When restitution
is ordered under Section 1106(a), it is enforceable until it is paid. See 18
Pa.C.S.A § 1106(c)(1)(ii); see also Commonwealth v. Griffiths, 15 A.3d
73, 75 (Pa.Super. 2010) (holding court retains authority to enforce Section
1106(a) restitution order through contempt powers triggered by non-
compliance, even after expiration of defendant’s sentence).
Here, the court entered a restitution order directing Appellant to pay the
remaining balance of restitution, $1,254,943.90, which was consistent with
the statutory mandate calling for full restitution. See 18 Pa.C.S.A. §
1106(c)(1)(ii). Moreover, as noted above, full restitution payable through
the county probation office as collection agent is prescribed by Section
1106(e). Should Appellant fail to comply with the payment schedule set forth
in the court’s restitution order, Section 1106(f) authorizes the probation office
to notify the court, which then shall conduct a hearing to determine whether
Appellant is in contempt of its restitution order.
Finally, we reject Appellant's attempt to analogize his continued
restitution obligation to debtor's prison, as he is neither currently incarcerated
nor subject to future incarceration simply for failure to pay restitution. Section
1106 would first require "inquiry into Appellant's ability to pay, the reasons
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for his failure to pay, whether his failure to pay was willful, and if willful,
whether any alternatives to incarceration were proper." Commonwealth
v. Ballard, 814 A.2d 1242, 1247 (Pa.Super. 2003). Appellant offers no
statutory or decisional authority supporting his position that the applicable
statutory regime is unconstitutional in this regard.
For the foregoing reasons, we conclude that Appellant’s new
probationary sentence is illegal and must be vacated. However, we affirm the
portion of the resentencing order subjecting Appellant to continued restitution
payments, as the court retains authority to enforce its order of restitution
against Appellant, through use of its contempt powers, if necessary, until
restitution is fully paid.
Judgment of sentence vacated in part and affirmed in part. Case
remanded. Jurisdiction relinquished.
Judge Olson joins the memorandum.
P.J. Gantman notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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