J-S56006-18

                                   2018 PA Super 274


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    SHANA SHAMANE RAMOS                        :
                                               :
                       Appellant               :        No. 564 MDA 2018

             Appeal from the Judgment of Sentence March 27, 2018
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0004040-2015


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

OPINION BY GANTMAN, P.J.:                              FILED OCTOBER 10, 2018

        Appellant, Shana Shamane Ramos, appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following her

nolo contendere plea to criminal mischief, graded as a summary offense.1 For

the following reasons, we vacate and remand for resentencing.

        The relevant facts and procedural history of this case are as follows. On

September 1, 2015, Sherry Upton arrived home after work. While walking to

her front door she passed two vehicles parked in her driveway.          Her son,

Everett Upton, owned one vehicle and her husband owned the other. After

entering her home, Ms. Upton heard a knock at her door and identified the

knocker as Appellant, Shana Shamane Ramos. Ms. Upton’s son had ended his

relationship with Appellant a week earlier.         To avoid communication with

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1   18 Pa.C.S.A. § 3304(a)(5).
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Appellant, Ms. Upton chose not to open the door and instead contacted her

husband who then contacted the police.       Appellant continued to knock for

roughly forty-five minutes. When the knocking stopped, Ms. Upton looked out

her window to see Appellant had gone. Ms. Upton went outside and found

extensive damage to both vehicles in her driveway.

        The Commonwealth charged Appellant on October 7, 2015, with criminal

mischief, graded as a second-degree misdemeanor. On October 17, 2017,

Appellant ultimately entered a nolo contendere plea for one count of criminal

mischief as a summary offense. The court immediately sentenced Appellant

to a fine of $50.00 plus court costs and then ordered a separate restitution

hearing at a later date.    The court rescheduled the restitution hearing for

March 27, 2018. After the restitution hearing, the court ordered Appellant to

pay $800.00 in restitution. Appellant filed a notice of appeal on March 29,

2018.     The court ordered Appellant, on April 3, 2018, to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant

timely complied on April 20, 2018.

        Appellant raises three issues on appeal:

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION OR
          COMMITTED AN ERROR OF LAW IN SENTENCING
          APPELLANT TO PAY RESTITUTION IN THE SUM OF $800.00.

          WHETHER THE COMMONWEALTH FAILED TO PROVIDE
          SUFFICIENT EVIDENCE TO PROVE THAT APPELLANT OWES
          RESTITUTION IN THE SUM OF $800.00.

          WHETHER THE COURT ISSUED AN ILLEGAL SENTENCE.


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(Appellant’s Brief at 1).

      In her issues combined, Appellant argues imposition of restitution at a

hearing six months after the initial sentencing constitutes an illegal sentence.

Appellant also claims the court lacked tangible evidence to prove the victim

actually had to pay for the damage Appellant caused.           Finally, Appellant

contests the court’s imposition of restitution in the amount of $800.00 as

completely speculative.     Appellant concludes this Court should vacate the

order of restitution. We cannot agree with Appellant’s proposed resolution,

but we do agree that some relief is due.

      As a prefatory matter, the certified record reveals that the court initially

imposed a generalized, open-ended sentence of restitution, which is a matter

we can raise and review sua sponte as an illegal sentence.                   See

Commonwealth v. Mariani, 869 A.2d 484 (Pa.Super. 2005) (explaining

judgment of sentence including open restitution “to be determined at later

date” is ipso facto illegal); Commonwealth v. Deshong, 850 A.2d 712, 713

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

concerns legality of sentence). See also Commonwealth v. Oree, 911 A.2d

169, 172 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007)

(maintaining legality of sentence claims cannot be waived, given proper

jurisdiction, and Superior Court can review illegal sentences sua sponte).

      Issues concerning a court’s statutory authority to impose restitution

implicate the legality of the sentence. Commonwealth v. Smith, 956 A.2d


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1029 (Pa.Super. 2008) (en banc), appeal denied, 605 Pa. 684, 989 A.2d 917

(2010). “Issues relating to the legality of a sentence are questions of law….”

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008). 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.” Id. “If no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.        An

illegal sentence must be vacated….” Commonwealth v. Pombo, 26 A.3d

1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers, 25 A.3d

349, 352 (Pa.Super. 2011), appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).

      In criminal proceedings, an order of restitution is a sentence (even when

imposed as a condition of probation); it is not an award of damages;

“recompense to the victim is secondary.”        Mariani, supra at 486(quoting

Commonwealth v. Wright, 722 A.2d 157, 160 (Pa.Super. 1998)).                   The

objectives of restitution differ from the objectives of awarding damages;

although the amounts are related, they “need not be coterminous.”              Id.

“[T]he primary purpose of restitution is rehabilitation of the offender by

impressing upon [her] that [her] criminal conduct caused the victim’s loss or

personal injury and that it is [her] responsibility to repair the loss or injury as

far as possible.” Commonwealth v. Solomon, 25 A.3d 380, 389 (Pa.Super.

2011), appeal denied, 615 Pa. 766, 40 A.3d 1236 (2012) (quoting Mariani,

supra at 486).


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     The Crimes Code governs the imposition of restitution as follows:

       § 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.

                              *       *       *

          (c)   Mandatory restitution.—

                (1)   The court shall order full restitution:

                                  *       *       *

                (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.

                                  *       *       *

                (3) The court may, at any time or upon the
          recommendation of the district attorney that is based on
          information received from the victim and the probation
          section of the county or other agent designated by the
          county commissioners of the county with the approval of
          the president judge to collect restitution, alter or amend
          any order of restitution made pursuant to paragraph (2),


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            provided, however, that the court states its reasons and
            conclusions as a matter of record for any change or
            amendment to any previous order.

                   (4)(i) It shall be the responsibility of the district
            attorneys of the respective counties to make a
            recommendation to the court at or prior to the time of
            sentencing as to the amount of restitution to be ordered.
            This recommendation shall be based upon information
            solicited by the district attorney and received from the
            victim.

                                  *    *    *

18 Pa.C.S.A. § 1106(a), (c)(1)-(4)(i) (emphasis added). Section 1106(c)(2)

includes “the requirement that if restitution is ordered, the amount must be

determined at the time of sentencing….”           Commonwealth v. Dinoia,

801 A.2d 1254, 1257 (Pa.Super. 2002) (emphasis in original).

         It also placed upon the Commonwealth the requirement that
         it provide the court with its recommendation of the
         restitution amount at or prior to the time of sentencing.
         Although the statute provides for amendment or
         modification of restitution “at any time,” 18 Pa.C.S.A. §
         1106(c)(3), the modification refers to an order “made
         pursuant to paragraph (2)….” Thus, 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. (internal citations and footnote omitted). See also Smith, supra (holding

court cannot impose generalized, open-ended restitution order at sentencing

and then “work out the details” and amounts at later date; order of restitution

“to be determined later” is ipso facto illegal); Mariani, supra (explaining

Section 1106(c) has two, inextricable components: (1) time at which


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

specific nature of such 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. Id. at 486; 18 Pa.C.S.A. § 1106.

       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. Commonwealth v.

Dietrich, 610 Pa. 58, 970 A.2d 1131 (2009).            This authority to modify

restitution takes into account that the full amount of restitution might be

indeterminable before sentencing under Pa.R.Crim.P. 704.2 Id.

       Instantly, the court accepted Appellant’s plea on October 17, 2017, and

immediately ordered Appellant to pay a $50.00 fine, the costs of prosecution,

plus restitution to be determined at a separate hearing later, without

specifying an amount of restitution and a method of payment at the time of



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2 The Dietrich concept of modification is especially apt when the plea and
sentencing occur on the same day, as in the present case.              The
Commonwealth, however, must still be prepared to present the court with the
necessary evidence to support the imposition of restitution at the time of
sentencing. Section 1106(c)(3), allowing for modification of an existing
specific restitution order, cannot be used to circumvent or sidestep the
principal requirements of Section 1106(c).

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that sentencing. Pursuant to Section 1106(c)(2), the court had no authority

to impose a generalized, open-ended sentence of restitution, but leave the

amount and method of payment for decision at a later date. See Mariani,

supra.

      Here, the record makes clear the court intended restitution as an

integral part of the sentencing scheme.       Notwithstanding the statutory

language and case law requiring imposition of some amount of restitution and

a method of payment at the time of sentencing, we continue to see 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. See Smith, supra; Mariani, supra; Dinoia, supra.

Accordingly, we vacate both the March 27, 2018 order for restitution in the

amount of $800.00 as well as the earlier October 17, 2017 sentencing order,

and remand for resentencing. See id. Due to our disposition, we decline to

address Appellant’s issues regarding the dollar amount of restitution later

ordered or the quantum of evidence to support it, as these particular issues

are now moot and possibly subject to change at resentencing.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2018




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