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:

____________________________________________


*   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

____________________________________________


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
____________________________________________


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




____________________________________________


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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