J-S41014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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