J-S20005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN WINFIELD COCHRAN, II,               :
                                               :
                       Appellant               :   No. 1529 MDA 2017


              Appeal from the Order entered September 15, 2017,
                 in the Court of Common Pleas of York County,
              Criminal Division at No(s): CP-67-CR-0000361-2017.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED MAY 25, 2018

        Steven W. Cochran, II, appeals from the restitution order imposed

following Cochran’s open guilty plea to terroristic threats, simple assault and

criminal mischief.1 After careful review, we vacate Cochran’s restitution order

and the judgment of sentence, and remand for resentencing.

        The trial court summarized the facts of this case as follows:

              On December 4, 2016, [Cochran] was charged with
           Terroristic Threats (M1), Simple Assault (M2), two counts of
           Criminal Mischief (F3), Harassment (M3) and two counts of
           Harassment (S). The charges resulted from an incident
           which occurred at the residence of [Cochran], which was a
           vacation home owned by his grandparents in which
           [Cochran] had lived for about ten days.          When the
           grandparents visited [Cochran] at the residence on
           December 4, 2016, [Cochran] was intoxicated. [Cochran]
           began destroying items of personal property within the
           residence and then threatened his grandmother and
____________________________________________


1   18 Pa.C.S. §§ 2706, 2701, and 3304, respectively.
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       ultimately physically assaulted his grandmother, resulting in
       injuries to her. During the course of the altercation, a fire
       broke out within the home and caused further damage.
       [Cochran] admitted to all aforementioned facts at the guilty
       plea hearing.

          On June 29, 2017, [Cochran] entered an open plea to
       Count 1 – Terroristic Threats, Count 2 – Simple Assault and
       Count 3 – Criminal Mischief. At the very commencement of
       the entry of [Cochran’s] guilty plea, his prior counsel from
       the public defender’s office, Alisa Livaditis, Esquire, advised
       that a restitution hearing was required because of the
       amount of restitution being claimed exceeded $65,000.
       Attorney Livaditis disputed that [Cochran] was responsible
       for all of the damages and also indicated that she believed
       a number of items being claimed were the property of
       [Cochran]. Clearly the record indicates that [Cochran] and
       his counsel were aware of the amount of restitution claimed
       and had a list of property allegedly damaged. Defense
       counsel requested a ninety-minute hearing and the hearing
       was scheduled in court on the first available date of August
       28, 2017. [Cochran] then moved forward with his plea.

          This Court also received a written and verbal victim
       impact statement which provided greater detail regarding
       [Cochran’s] destructive actions and physical assault of his
       grandmother. [Cochran] was sentenced to an aggregate
       sentence of three to twenty-three months in York County
       Prison plus costs of prosecution. At the request of defense
       counsel, [Cochran] was directed to remain in the York
       County Prison, and not released to his Maryland detainer,
       until after the restitution hearing.

          On August 28, 2017, a restitution hearing commenced.
       [Cochran] was now represented by Brad Peiffer, Esquire of
       the public defender’s office. The assistant district attorney
       called the case and indicated that defense counsel was
       disputing more items of restitution than originally indicated
       and this revised position would require more testimony than
       was originally anticipated. Attorney Peiffer then raised the
       issue of the Court’s lack of jurisdiction to hear the case. This
       Court overruled Attorney Peiffer’s objection and proceeded
       with testimony, as the hearing was specially requested both
       orally and by written motion at [Cochran’s] request. At the
       conclusion of the Commonwealth’s case, additional time was

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          needed to take [Cochran’s] testimony and the hearing was
          continued to September 15, 2017.

             On September 15, 2017, [Cochran] appeared with his
          third attorney from the public defender’s office, Anthony J.
          Tambourino, who renewed his objection to the Court’s
          jurisdiction to enter a restitution order. After making
          additional argument on that issue, defense counsel
          conceded that [Cochran] had no valid claim to contest the
          restitution amount presented by the Commonwealth. After
          further clarification, the Court entered a restitution order in
          the amount of $70,951.59, and directed probation to assess
          [Cochran] upon release from incarceration to determine his
          earnings and set an appropriate monthly payment amount
          as part of the probationary tail.

       Trial Court Opinion, 11/8/2017, at 2-5 (internal citations and footnote

omitted).2 This timely appeal followed. Both Cochran and the trial court have

complied with Pa.R.A.P. 1925.

       Cochran argues the following on appeal:

          The Commonwealth failed to make a recommendation for
          restitution and the trial court failed to set restitution at the
          time of sentencing on June 29, 2017, as required by 18
          Pa.C.S. § 1106(c)(2).         The trial court was without
          jurisdiction to set restitution at the September 15, 2017
          restitution hearing, because it was held outside of the thirty
          day period the trial court had jurisdiction after sentencing
          under 42 Pa.C.S. § 5505. As restitution was not set at
          sentencing, restitution could not be altered or amended at
          a later date. The restitution order entered on September
          15, 2017 is [illegal] therefore, void and should be vacated.

See Cochran’s Brief at 4 (citation omitted).
____________________________________________


2 Cochran was not given a probationary sentence. The Commonwealth
acknowledges this fact in its sur-reply brief. Thus, its claim that the restitution
order was entered as a term of probation is without merit.                     See
Commonwealth Brief at 11; 42 Pa C.S.A. § 9754.


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        We begin by noting our well settled standard of review. The question

as to whether the trial court imposed an illegal sentence is a question of law.

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010). An

appellate court’s standard of review over such questions is de novo and the

scope of review is plenary. Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.

Super. 2014).

        18 Pa.C.S.A § 1106(c)(2) provides that “at the time of sentencing, the

court    shall   specify   the   amount   and   method   of   restitution.”   In

Commonwealth v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002), this Court

clarified that § 1106 “mandates an initial determination of the amount of

restitution at sentencing” so as to “[provide] the defendant with certainty as

to his sentence, and at the same [allow] for subsequent modification, if

necessary.” at 1257. Cochran avers that “[b]ecause the trial court failed to

set restitution at the time of sentencing, but instead, set it outside of its

jurisdictional time limits, [we] should vacate the order for restitution.”

Cochran’s Brief at 10.

        Here, the trial court postponed determining the restitution until after

sentencing. This is clearly contrary to the plain language of § 1106(c)(2).

The trial court reasoned, in its opinion, that Cochran’s case was “factually

distinguishable from Dinoia” relying on the fact the appellant in Dinoia had

his restitution hearing scheduled 18 months after sentencing, while here,

Cochran’s hearing was scheduled only 60 days after sentencing. Trial Court




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Opinion, 11/8/2017, at 5. The trial court further points out that it was Cochran

who requested a restitution hearing during sentencing. Id.

      The facts that the trial court relies on do not excuse it from the statutory

mandate requiring it to set restitution at the time of sentencing.             The

prosecutor stated during sentencing that he believed restitution would be

around $65,000.      The trial court could have easily set restitution at this

amount to conform with the statute, scheduled a hearing, and then modified

the restitution accordingly. The law is clear that the trial court was obligated

to set Cochran’s restitution during sentencing, and we therefore agree with

Cochran that the trial court’s restitution order was illegal.

      We now turn to the question as to what remedy is appropriate under

the circumstances of this case. Cochran relies heavily on Dinoia, arguing his

situation is “analogous” to that case.       In Dinoia, this Court vacated the

restitution order after the trial court failed to set the restitution at sentencing.

Thus, Cochran requests that his restitution order should likewise be vacated,

while leaving the rest of his sentence intact.      However, since Dinoia, this

Court has routinely vacated illegal restitution orders and remanded the case

for resentencing. See, e.g., Commonwealth v. Deshong, 850 A.2d 712,

716-18 (Pa. Super. 2004) (agreeing with the Commonwealth that because

“disposition apparently alter[ed] the sentencing scheme of the trial court, we

must vacate the sentence and remand for resentencing”); Commonwealth

v. Mariani, 869 A.2d 484, 487 (Pa. Super. 2005) (stating the remedy as

“remand[ing] for resentencing rather than vacating the restitution order as

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[the appellant] insists is appropriate”); Commonwealth v. Gentry, 101 A.3d

813, 819 (Pa. Super. 2014) (agreeing with the Commonwealth that the proper

remedy “is for the trial court to have an opportunity to impose a new

restitution order”).

       The Commonwealth urges us that “the appropriate remedy is to vacate

the sentence and remand for resentencing.” Commonwealth’s Sur-Reply Brief

at 1. The Commonwealth argues that vacating the order without remanding

for   resentencing     would   upset   the   original   sentencing   scheme.   See

Commonwealth’s Brief at 19.

       However, Cochran contests that his appeal was taken from the

restitution order, instead of the sentencing order, which limits this Court to

vacating his restitution order and it may not remand for resentencing. See

Cochran’s Reply Brief at 5. We disagree.

         An appellate court may affirm, modify, vacate, set aside or
         reverse any order brought before it and may remand the
         matter. If our disposition upsets the overall sentencing
         scheme of the trial court, we must remand so that the court
         can restructure its sentence plan. By contrast, if our
         decision does not alter the overall scheme, there is no need
         for a remand.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (internal

citations omitted).

       Here, we find the order of restitution was integral to the trial court’s

sentencing scheme. In Commonwealth v. Mariani, 869 A.2d 484, 487 (Pa.

Super. 2005), this Court addressed a similar issue where the appellant



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requested that his restitution order be vacated because the trial court failed

to impose the order during sentencing. We held that “because the sentence

[] was an integrated one intended from the outset to consist of both

confinement and monetary elements, and because both were not imposed

contemporaneously, the illegality of one part invalidates to whole.” Id. at

487.

       Further, the trial court stated in its opinion that “vacat[ing] the

restitution order [would provide Cochran] with a benefit that was not included

in the bargain struck for the entry of his guilty plea” and that Cochran’s

acknowledgment that he owed restitution at sentencing “was certainly part of

[the trial court’s] consideration of the recommended plea bargain.” Trial Court

Opinion, 11/8/2017, at 6. Under these circumstances, we are confident that

the trial court would not have accepted Cochran’s guilty plea without the

understanding that it would impose restitution.

       We agree with the Commonwealth that if we vacated the order imposing

restitution, without remanding the issue for resentencing, we would upset the

trial court’s original sentencing scheme. Goldhammer, supra. As such, we

hold that the appropriate remedy is for the trial court to have an opportunity

to impose a new sentence which includes a restitution order.

       Based on the foregoing, we find that the trial court erred in holding that

Cochran’s original restitution order was legal. Accordingly, the trial court’s

September 15, 2017 order is reversed, Cochran’s judgment of sentence is

vacated, and case is remanded for resentencing.

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     Order of sentence reversed. Judgement of sentence vacated.   Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/25/18




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