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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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