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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
            APPELLANT                      :           PENNSYLVANIA
                                           :
                    v.                     :
                                           :
CLINTON MICHAEL CHILDRESS,                 :
              APPELLEE                     :
                                           :
                                           :      No. 571 MDA 2016

                    Appeal from the Order of March 24, 2016
               In the Court of Common Pleas of Wyoming County
              Criminal Division at No(s): CP-66-CR-0000004-2012

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                          FILED NOVEMBER 15, 2016

        The Commonwealth of Pennsylvania appeals from the March 24, 2016

Order entered in the Wyoming County Court of Common Pleas denying its

“Motion to Amend [the September 12, 2012] Sentencing Order Pursuant to

18 Pa.C.S.[] § 1106(c)(3).” After careful review, we affirm.

        On July 6, 2012, Appellee, Clinton Michael Childress, entered a

negotiated guilty plea to one count each of Driving Under the Influence of

Alcohol (“DUI”) and Recklessly Endangering Another Person (“REAP”).1 On

September 12, 2012, the trial court sentenced Appellee to a term of two

days’ to six months’ incarceration, and a $2,500 fine on the DUI conviction,



*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(b) and 18 Pa.C.S. § 2705.
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and a consecutive term of 4 to 12 months’ incarceration, a $2,500 fine, and

restitution of $6,507.59 on the REAP conviction.       Appellee’s maximum

sentence date was March 12, 2014.2

     Appellee filed a timely Post-Sentence Motion for Reconsideration of

Sentence, which the trial court denied on October 2, 2012.    Neither party

appealed from Appellee’s Judgment of Sentence.

     The docket reflects that by April 10, 2014, Appellee had satisfied his

penalty, and had paid $12,222.87 in court fees, fines, and restitution,

$6,507.59 of which was restitution as ordered by the court.

     On January 20, 2016, the Commonwealth filed a Motion to Amend

Sentencing Order Pursuant to 18 Pa.C.S. § 1106(c)(3), in which it informed

the court that, on January 5, 2016, the Pennsylvania Victim’s Compensation

Assistance Program requested additional restitution of $5,467.88. Appellee

filed a response to the Motion on February 2, 2016. The trial court denied

the Motion on March 28, 2016. The Commonwealth timely appealed. Both

the Commonwealth and the trial court complied with Pa.R.A.P. 1925.




2
  At the time the court sentenced Appellee, the statutory maximum sentence
for DUI was 3 to 6 months’ incarceration and for REAP was 12 to 24 months’
incarceration. Accordingly, the court could have sentenced Appellee to an
aggregate maximum sentence of 15 to 30 months’ incarceration. Therefore,
even if Appellee had been sentenced to the statutory maximum sentence,
that would have expired on March 12, 2015, almost one year before the
Commonwealth filed its Motion to Amend.




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      The Commonwealth raises one issue in its Brief to this Court:

“Whether the trial court’s order denying the Commonwealth’s [M]otion to

[A]mend [R]estition as requested by the Victim Compensation Assistance

Program violated 18 Pa.C.S.[] § 1106(c)(1)(i) and (3)[the “Restitution

Statute”]?”3 Commonwealth’s Brief at 4. The Commonwealth argues that:

(1) pursuant to the Restitution Statute, the restitution portion of Appellee’s

Judgment of Sentence can be modified at any time; (2) the plain language

of the Restitution Statute requires the modification it requested; and (3)

public policy militates against permitting a defendant to avoid paying

restitution payments simply because his sentence has expired. Id. at 7-8.

      The question presented by the Commonwealth requires us to consider

first whether the trial court had jurisdiction to amend the Restitution Order.

      Whether the trial court has jurisdiction to amend a restitution order is

a question of law; therefore, the standard of review is de novo, and our

scope of review is plenary.   See, e.g, S.K.C. v. J.L.C., 94 A.3d 402, 406

(Pa. Super. 2014).   Moreover, in evaluating the trial court’s application of

the Restitution Statute, we are “limited to determining whether the trial

court committed an error of law.”     Commonwealth v. Poland, 26 A.3d

518, 523-24 (Pa. Super. 2011) (citation omitted).

3
  In relevant part, 18 Pa.C.S. § 1106 provides that a victim is entitled to
restitution for all damages arising from a defendant’s criminal conduct, and
that the trial court may amend any restitution order, provided it states its
reasons on the record. See 18 Pa.C.S. § 1106(c)(1)(i), (c)(3) (emphasis
added).



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      In the instant matter, the Commonwealth filed its Motion to Amend

Sentencing Order on January 20, 2016, almost two years after Appellee’s

maximum sentence date had run and Appellee had satisfied his court

ordered restitution obligation. Given these facts, the trial court opined that

it “no longer ha[d] jurisdiction over [Appellee.]” Trial Ct. Op., 6/15/16, at 3.

We disagree with the trial court.

      The Restitution Statute provides, in relevant part, that “[t]he court

may, at any time or upon the recommendation of the district attorney . . .

alter or amend any order of restitution . . . .” See 18 Pa.C.S. § 1106(c)(3).

Interpreting this provision, our Supreme Court has held that “[t]he plain

language of § 1106(c)(3) provides courts with broad authority to modify

restitution amounts at any time if the court states reasons for doing so on

the record.” Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009)

(emphasis in original); see also Commonwealth v. Gentry, 101 881-82

(Pa. Super. 2012). The Dietrich Court concluded that the broad language

of the Restitution Statute is indicative of the legislature’s intent that trial

courts have jurisdiction to modify restitution orders “at any time.”

Dietrich, 970 A.2d at 1135 (emphasis added).

      Accordingly, to the extent that the trial court based its denial of the

Commonwealth’s Motion to Amend Restitution on its belief that it lacked

jurisdiction over Appellee because he had completed his sentence and had




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fully satisfied his court ordered restitution obligation, we find that the trial

court erred as a matter of law.

      Our inquiry does not end there, however. Having found that the trial

court had jurisdiction to entertain the Commonwealth’s Motion, we consider

whether the trial court abused its discretion in refusing to amend the

Restitution Order after considering the record before it. See Trial Ct. Op. at

3; see also Commonwealth v. Ortiz, 854 A.2d 1280, 1282 n.1 (Pa. Super.

2004).

      The Commonwealth claims that the Restitution Statute is clear that

“restitution is mandatory and must be awarded for any amount the victim

has received from the Crime Victim’s Compensation Board or any other

governmental agency.”      See Commonwealth’s Brief at 8; see also 18

Pa.C.S. § 1106(c)(1)(i). The Commonwealth avers, therefore, that the trial

court erred in denying its Motion to Amend Restitution on the basis that

Appellee’s maximum sentence expired.       Commonwealth’s Brief at 8.       The

Commonwealth also argues that public policy militates in favor of imposing a

continuing restitution obligation on defendants, even where their sentences

have expired. Id. We disagree.

      Although Section 1106(c) requires a defendant to pay full restitution,

this Court has held that the amount of full restitution must be determined

with consideration of due process. See Commonwealth v. Ortiz, 854 A.2d

1280, 1282 (Pa. Super. 2004).        Moreover, notwithstanding that Section



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1106(c)(3) permits the amendment of a restitution Order at any time, “other

principles of law must be followed. At some point, finality is needed.”

Id. (emphasis added); Commonwealth v. Wozniakowski, 860 A.2d 539,

545 (Pa. Super. 2004).

      At the hearing on the Commonwealth’s Motion, the Commonwealth

presented the testimony of one witness, the victim Patricia Carr. The trial

court described Ms. Carr’s testimony as follows:

         Immediately following the accident, [Ms. Carr] made a
         claim with Victims Resources, which included following all
         of her [medical] bills to Victims Resources. Since the
         accident in 2011, [Ms. Carr] has continued to send bills to
         the Victim’s Compensation Assistance Program but she has
         only received one (1) check approximately six (6) to eight
         (8) weeks prior to the hearing on the Commonwealth’s
         Motion in the amount of [$5,467.88]. Ms. Carr further
         testified that prior to [Appellee’s] sentencing, Ms. Carr
         provided an itemization of her expenses and the money
         she put out as a result of the accident and said amount
         was [$6,507.59].      Ms. Carr testified that despite her
         accident and claim being made with Victim’s Resources in
         2011, she had not heard anything with respect to the claim
         other than “they are working on it. They were overloaded,
         They—blah, blah, blah.”

Trial Ct. Op. at 3 (citations omitted).

      In rendering its decision to deny the Commonwealth’s Motion to

Amend, the trial court considered Ms. Carr’s testimony, and emphasized

separately that, “[a]t the time the Commonwealth’s Motion was filed, more

than five (5) years had elapsed since [Appellant’s] crime, more than four (4)

years since [Appellant’s] sentence, and more than two (2) years since

[Appellant] completed his sentence.” Id. at 2-3.


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      Ms. Carr testified that she had recently settled a civil lawsuit against

Appellee’s insurance company for bodily injury, including doctor’s bills,

expenses, and pain and suffering, for $15,000. N.T., 3/18/16, at 11, 16.

      Having reviewed the record in this case, we conclude that the trial

court did not abuse its discretion in denying the Commonwealth’s Motion.

When the Commonwealth filed its Motion to Amend, a significant amount of

time had passed since Appellee completed his judgment of sentence and

satisfied his restitution obligation.

      Moreover, although we are cognizant that it is sometimes difficult for

the Commonwealth to ascertain full restitution amounts within 90-days of

conviction or entry of a plea as required by Pa.R.Crim.P. 704, we are

unpersuaded by the Commonwealth’s argument that, under the facts of this

case, imposing a new restitution obligation on Appellee more than two years

after he completed his sentence is in the public interest.        Instead, we

conclude that to permit the Commonwealth to amend Appellee’s restitution

obligation at this late date would be contra to the principles of due process,

finality and fairness. See, e.g., Ortiz 854 A.2d at 1282; Wozniakowski,

860 A.2d at 545 (acknowledging that although “sometimes related injuries

do not manifest until a later date . . . [d]ue process safeguards, [ ],

including the need for finality, must be maintained”) (citation omitted)).




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     For the foregoing reasons, we affirm the trial court’s Order denying the

Commonwealth’s Motion to Amend Sentencing Order.             The restitution

ordered in Appellant’s September 12, 2012 Judgment of Sentence is final.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




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