J-A30009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1811 MDA 2018
    HOWARD WILLIAM DEWEESE

         Appeal from the Judgment of Sentence Entered August 29, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0003531-2010


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 28, 2020

        The Commonwealth appeals from the Judgment of Sentence imposed

on remand. The Commonwealth challenges the trial court’s failure to impose

restitution as mandated by 43 P.S. § 1314. After careful review, we reverse

and remand for a determination of restitution.

        This Court previously set forth the underlying facts of this case in

Appellee’s direct appeal. See Commonwealth v. Deweese, No. 1528 MDA

2012 (Pa. Super. filed Aug. 16, 2013) (detailing factual and procedural history

pertaining to Appellant’s criminal conviction for misappropriation of taxpayer

resources during his tenure as a state representative in the Pennsylvania

General Assembly), appeal denied, 81 A.3d 75 (Pa. 2013). Relevant to this

appeal, we note the following.

____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
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      After his Judgment of Sentence became final, Appellee filed a timely

Petition pursuant to the Post-Conviction Relief Act challenging, inter alia, the

imposition of restitution. The trial court denied relief; on appeal, this Court

vacated the Judgment of Sentence and remanded for resentencing after

concluding that the restitution ordered pursuant to 18 Pa.C.S. § 1106 could

not stand in light of the Pennsylvania Supreme Court’s decision in

Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016). See Commonwealth

v. Deweese, No. 1998 MDA 2016 (Pa. Super. filed May 8, 2017), appeal

dismissed as improvidently granted, 186 A.3d 375 (Pa. 2018).

      On remand for      re-sentencing, the     Commonwealth      submitted a

memorandum requesting for the first time that the court order restitution

pursuant to the Section 1314 of the Public Employee Pension Forfeiture Act,

43 P.S. §§ 1311-1314.       The trial court imposed the same sentence of

incarceration, but ordered that Appellant did not have to pay restitution. The

Commonwealth thereafter filed a Motion for Modification of Sentence, which

the court denied. See Opinion and Order, dated Oct. 3, 2018, at 1-3 (reading

43 P.S. §§ 1313 and 1314 in pari materia to conclude that “to order restitution

to the Commonwealth in addition to the forfeiture of pension benefits . . .

would lead to an absurd and unreasonable result.”).

      The Commonwealth appealed and filed a Pa.R.A.P. 1925(b) Statement.

The trial court filed a Rule 1925(a) Opinion.

      The Commonwealth raises the following issues for our review:




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     1. Whether the sentencing court ordered an illegal sentence by
     not imposing restitution because DeWeese committed theft crimes
     related to his public employment when he was a state
     representative, which required the sentencing court to impose
     restitution pursuant to 43 P.S. § 1314(a)?

     2. Whether the sentencing court erred by denying the
     Commonwealth’s petition pursuant to 43 P.S. § 1314(b) because
     the sentencing court was required to impose restitution pursuant
     to 43 P.S. § 1314(a)?

     3. Whether the sentencing court erred by not imposing restitution
     because DeWeese’s pension contributions and any pension
     disbursements made to him shall be used to pay restitution
     pursuant to 43 P.S. § 1314(c)-(d), and not be a basis to decline
     imposing any restitution?

     4. Whether the sentencing court erred and/or abused its discretion
     by not imposing restitution because DeWeese’s ineligibility to
     collect his pension, if he made a claim against his pension, is a
     civil consequence and not a relevant sentencing factor to rely on
     to not impose restitution?

     5. Whether the sentencing court erred and/or abused its discretion
     because it should have imposed restitution as a condition of
     probation, particularly after DeWeese refused to accept
     responsibility for his crimes, revealing the need for continued
     rehabilitation?

     6. Whether the sentencing court erred and/or abused its discretion
     by not imposing any restitution because DeWeese could have
     been ordered to pay triple the $116,668.52 required restitution
     pursuant to 65 Pa.C.S. § 1109(c)?

     7. Whether the sentencing court erred and/or abused its discretion
     by not imposing restitution where it did not identify compelling
     reasons to decline to follow the imposition of restitution in
     Commonwealth v. Perzel, CP-22-CR-2589-2010, a strikingly
     similar case as the instant case?

     8. Whether the sentencing court erred and/or abused its discretion
     because the failure to impose restitution established the
     sentencing court did not adequately address the seriousness of
     DeWeese’s public corruption crimes, namely where DeWeese stole


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      over $100,000 from the Commonwealth and breached the public
      trust in elected officials?

      9. Whether the sentencing court erred and/or abused its discretion
      because the failure to impose restitution established the
      sentencing court did not adequately address the protection of the
      public, namely where DeWeese’s crimes breached the public trust
      and similar crimes are capable of being committed by other public
      officials?

      10. Whether the sentencing court erred and/or abused its
      discretion because even if DeWeese’s potential pension loss was
      a relevant consideration, the sentencing court’s decision to not
      impose restitution since DeWeese cannot collect his pension would
      lead to absurd results, namely a government employee eligible to
      receive a future pension could steal public funds up to his or her
      potential total pension amount and no restitution could be
      awarded to the government?

Appellant’s Brief at 4-5.

      The Commonwealth’s first three claims assert that the court imposed an

illegal sentence by failing to order restitution as required by 43 P.S. § 1314.

When reviewing the legality of a sentence, “our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Brown, 159

A.3d 531, 532 (Pa. Super. 2017) (citation omitted).

      The Commonwealth argues that the plain language of Section 1314

mandates that the sentencing court order restitution.        It contends that

Appellee’s “forfeiture of his pension does not change the mandatory nature of

his restitution and does not exempt him from having to pay restitution.”

Appellant’s Brief at 23. We agree.

      Section 1314(a) of the Pension Forfeiture Act provides, in pertinent

part, that:


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      Whenever any public official ... who is a member of any pension
      system funded by public moneys ... pleads guilty ... in any court
      of record to any crime related to a public office or public
      employment, the court shall order the defendant to make
      complete and full restitution to the Commonwealth ... of any
      monetary loss incurred as a result of the criminal offense.

43 P.S. § 1314(a) (emphasis added).

      “When the words of a statute are clear and free from all ambiguity, they

are presumed to be the best indication of legislative intent.” Chanceford

Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d

1099, 1104 (Pa. 2007) (citations omitted). The Pennsylvania Supreme Court

has “recognized that the term ‘shall’ is mandatory for purposes of statutory

construction when a statute is unambiguous.” Koken v. Reliance Insurance

Company, 893 A.2d 70, 81 (Pa. 2006) (citations omitted).

      Neither party nor the trial court have concluded that the restitution

statute at issue is ambiguous.     After our review, we conclude that it is

unambiguous and that “shall” as used in Section 1314(a) means “mandatory.”

In addition, subsection (b) allows the Commonwealth to file a petition if the

court fails to order such restitution; subsections (c) and (d) provide that a

defendant’s contribution to his pension “shall be available to satisfy such

restitution order” and the “appropriate benefits administrator, upon being

served with a copy of the court’s order, shall pay over all such pension

benefits, contributions or other benefits to the extent necessary to satisfy the

order of restitution.”   43 P.S. § 1314 (b), (c) and (d).      Each subsection

supports the conclusion that the court is mandated to order restitution.


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Nothing in Section 1314 recognizes that pension benefit “forfeiture” is the

equivalent of court-ordered restitution.1

       Accordingly, the trial court’s failure on remand to impose restitution in

accordance with 43 P.S. § 1314 renders Appellee’s sentence illegal. We, thus,

remand for resentencing in accordance with this Memorandum.2

       Judgment of Sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.


       Judge Nichols joins the memorandum.


       Judge Colins files a dissenting memorandum.




____________________________________________


1 The Dissent misinterprets the disposition set forth in the Majority Opinion.
The Dissent makes the unfounded statement that the Majority holds that
“Appellee must pay restitution to the Commonwealth, in the amount of
$116,688.52, in addition to the forfeiture of pension emoluments totaling well
over 3 million dollars.”

The Majority Opinion did not make that holding. Rather, the Majority Opinion
merely vacates the sentence because the language of the 43 P.S. § 1314 is
mandatory and the trial court imposed no restitution. We made no
determination of the amount of restitution. We leave it the parties to raise any
issues about the amount of restitution and the application of any of the
provisions of the Public Employee Pension Forfeiture Act, 43 P.S. §§ 1311-
1314.

Finally, I note that the Dissent provides no legal authority for its conclusion
that the mandatory language of 43 P.S. § 1314 does not apply to this case.

2Because our disposition of Appellant’s first three issues is dispositive, we
need not address the remaining issues.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/28/2020




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