J. A21036/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
GARD ORMSBEE,                             :         No. 227 EDA 2019
                                          :
                         Appellant        :


      Appeal from the Judgment of Sentence Entered December 10, 2018,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0002329-2018


BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 10, 2019

        Gard Ormsbee appeals from the December 10, 2018 judgment of

sentence, as made final by the entry of a restitution order on December 26,

2018,1 after appellant pled guilty to one count of receiving stolen property.2

We vacate appellant’s judgment of sentence and remand for resentencing.

        The record reflects that appellant’s guilty plea stemmed from his theft

of several pieces of the victim’s jewelry that he later sold to a pawnshop. On

November 27, 2018, appellant entered an open guilty plea to one count of

receiving stolen property. The Commonwealth and appellant agreed to the

imposition of a two-year probationary term, but could not agree on the


1We note that the restitution order is dated December 24, 2018, but was not
docketed until December 26, 2018.

2   18 Pa.C.S.A. § 3925(a).
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amount of restitution. On December 10, 2018, the sentencing court held a

restitution hearing at which time the victim testified as to her estimate of the

value of the jewelry that appellant had stolen. Immediately following that

hearing, the trial court held a sentencing hearing and sentenced appellant to

two years of probation, but deferred imposition of restitution until a later date.

On December 26, 2018, the sentencing court entered an order that directed

appellant to pay the victim $2,200 in restitution.      Appellant filed a timely

post-sentence motion, which the sentencing court denied.

      Appellant filed a timely notice of appeal.     The sentencing court then

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The sentencing

court then filed its Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Did the [sentencing] court err by awarding restitution
            that is speculative, unsupported by the record, and in
            an amount that is greater than the cash equivalent of
            the property lost due to the crime?

Appellant’s brief at 2.

      “[A] generalized, open-ended sentence of restitution . . . is a matter we

can raise and review sua sponte as an illegal sentence.” Commonwealth

v. Ramos, 197 A.3d 766, 768 (Pa.Super. 2017), citing Commonwealth v.

Mariani, 869 A.2d 484, 487 (Pa.Super. 2005) (reiterating where judgment of

sentence includes open restitution “to be determined later,” judgment of

sentence is ipso facto illegal); Commonwealth v. Deshong, 850 A.2d 712,


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713 (Pa.Super. 2004) (stating timeliness of sentencing court’s imposition of

restitution pertains to legality of sentence); Commonwealth v. Oree, 911

A.2d 169, 172 (Pa.Super. 2006), appeal denied, 918 A.2d 744 (Pa. 2007)

(restating legality of sentence claims are nonwaiveable, given proper

jurisdiction, and this court may sua sponte review illegal sentences).

            Issues concerning a court’s statutory authority to
            impose restitution implicate the legality of the
            sentence. Issues relating to the legality of a sentence
            are questions of law. When the legality of a sentence
            is at issue, our standard of review over such questions
            is de novo and our scope of review is plenary. If no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction. An illegal sentence must be vacated.

Ramos, 197 A.3d at 768-768 (citations, ellipses, and quotation marks

omitted).

      “In the context of criminal proceedings, it is well-settled that an order

of restitution is not simply an award of damages, but, rather, a sentence.”

Commonwealth v. McKee, 38 A.3d 879, 880-881 (Pa.Super. 2012) (internal

quotation marks and citations omitted). Further, “restitution is a creature of

statute and, without express legislative direction, a court is powerless to direct

a defendant to make restitution as part of a sentence.” Commonwealth v.

Harner, 617 A.2d 702, 704 (Pa. 1992).

      Here, the trial court imposed restitution as a part of appellant’s direct

sentence pursuant to 18 Pa.C.S.A. § 1106, which provides, in relevant part:




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           § 1106. Restitution for injuries to person or
           property

           (a)    General rule.--Upon conviction for any crime
                  wherein:

                  (1)    property of a victim has been
                         stolen, converted or otherwise
                         unlawfully obtained, or its value
                         substantially decreased; or

                  (2)    the victim, if an individual, 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. . . .

                  ....

                  (3)    The court may, at any time[,] . . .
                         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.A. § 1106(a) & (c)(2) & (3) (emphasis added).




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      Section 1106(c)(2) requires that the sentencing court specify the

amount and method of restitution at the time of sentencing. Ramos, 197

A.3d at 770. In other words, “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.” Id., citing Commonwealth v. Smith, 956 A.2d

1029, 1033 (Pa.Super. 2008) (finding an order of restitution “to be determined

later” ipso facto illegal); Mariani, 869 A.2d at 486 (explaining two

inextricable components of Section 1106(c) are (1) the time at which the

restitution sentence must be imposed, i.e., at sentencing hearing, and (2) the

specific nature of the restitution sentence, i.e., definite as to amount and

method of payment).

            Thus, an order entered after the delayed restitution
            proceeding is not what renders the sentence illegal; it
            is the court’s order at the initial sentencing,
            postponing the imposition of restitution until a later
            date, that fails in both respects to meet the criteria of
            the restitution statute and taints the entire sentence.

            As long as the sentencing court sets some amount and
            method of restitution at the initial sentencing, the
            court can later modify that order, but only if the
            requirements of Section 1106(c)(3) are met.

Ramos, 197 A.3d at 770 (internal citations omitted).

      Here, the record reflects that on December 10, 2018, the sentencing

court held a restitution hearing, immediately followed by a sentencing hearing.




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On that date, the trial court sentenced appellant to two years of probation for

his receiving stolen property conviction. The court then stated that:

            I’m actually going to hold under advisement this
            restitution order. I need to look into the case law to
            see where we are with this so I will have that order
            out by the end of the week on restitution.

Notes of testimony, 12/10/17 at 17.           With respect to restitution, the

December 10, 2018 written sentencing order fails to set forth an amount and

method of restitution and merely states, “restitution held under advisement.”

(Sentencing order, 12/10/19 at 2.) It was not until December 26, 2018 that

the sentencing court entered an order that directed appellant to pay restitution

to the victim in the amount of $2,200. (Order of court, 12/26/18). Although

the record demonstrates that the sentencing court intended to impose

restitution as part of the December 10, 2018 sentencing scheme, the

December 10, 2018 judgment of sentence included open restitution to be

determined at a later date and is, therefore, ipso facto illegal. See Smith,

956 A.2d at 1033. Furthermore,

            [n]otwithstanding the statutory language [of
            Section 1106] and case law requiring imposition of
            some amount of restitution and a method of payment
            at the time of sentencing, we continue to see
            [sentencing] courts make a general order of
            restitution as part of the sentence but postpone the
            actual specifics to a later date. This practice is
            contrary to law. In other words, a sentence intended
            to include restitution, which is initially entered without
            a definite amount and a method of payment is illegal
            and must be vacated in its entirety.

Ramos, 197 A.3d at 770-771.


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      Consequently, we vacate the December 10, 2018 judgment of sentence

and the December 26, 2018 restitution order and remand for resentencing.

As a result of our disposition, we decline to address appellant’s claim that the

record fails to support the restitution order.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/10/19




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