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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN MICHAEL BONCZEWSKI

                            Appellant                No. 854 MDA 2014


           Appeal from the Judgment of Sentence February 21, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000375-2013


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

MEMORANDUM BY GANTMAN, P.J.:                      FILED JANUARY 26, 2015

        Appellant, Benjamin M. Bonczewski, appeals from the judgment of

sentence entered in the Luzerne County Court of Common pleas, following

his guilty plea to one (1) count of receiving stolen property.1 We vacate and

remand for resentencing.

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

On October 9, 2012, John Roke contacted the Newport Township Police

Department to report that his coin collection had been stolen from his home.

In early November 2012, Appellant sold some of Mr. Roke’s coins to Gold

Rush Buyers.


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1
    18 Pa.C.S.A. § 3925.
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       On July 31, 2013, Appellant pled guilty to one (1) count of receiving

stolen property.      Appellant’s plea agreement stated, “[Appellant] to pay

restitution to Roke $30,000.”2 (Plea Agreement; R.R. at 11a). An asterisk

was placed next to this statement, however, to indicate that the restitution

amount was “to be determined at hearing.” Id. At the opening of the guilty

plea hearing, the following exchange took place:

          [COMMONWEALTH]:             Your Honor, [Appellant] shall
          plead guilty to count one, receiving stolen property. That
          is currently graded as a felony of the third degree, seven
          years, $15,000 max, [Appellant] to have no contact with
          the victim in this case, John Roke, R-O-K-E, [Appellant] to
          pay restitution to Mr. Roke in the amount of $30,000.

          Your Honor, the [C]ommonwealth would also request, after
          speaking with [Appellant], a restitution hearing and a
          sentencing date to determine the actual value and what
          he’s liable for.

          THE COURT:                      Okay.

(N.T. Guilty Plea Hearing, 7/31/13, at 2-3). In its recitation of the facts, the

Commonwealth stated that the victim’s coin collection had a value “in excess

of $10,000.00.” Id. at 7.

       The court sentenced Appellant on February 21, 2014, to the state

intermediate punishment program for a period of twenty-four (24) months.

As part of the sentence, the court also ordered Appellant to have no contact

with Mr. Roke, or Mr. Roke’ s mother, and to pay restitution to Mr. Roke in
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2
 The plea agreement also provided that Appellant was to have no contact
with John Roke.



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the amount of $30,000.00.           On Monday, March 3, 2014, Appellant timely

filed a motion to modify sentence, which the court denied on March 6, 2014.

Appellant filed a timely notice of appeal on Monday, April 7, 2014. On April

9, 2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal within twenty-one (21) days, pursuant to Pa.R.A.P.

1925(b). Appellant filed a Rule 1925(b) statement on May 22, 2014.3

       Appellant raises a single issue for our review:

          WHETHER THE TRIAL COURT ERRED IN ORDERING
          [APPELLANT] TO PAY RESTITUTION FOR PROPERTY WHICH
          THE COMMONWEALTH HAS NOT PROVEN WAS EITHER
          STOLEN OR RECEIVED BY HIM?

(Appellant’s Brief at 4).

       In his sole issue, Appellant argues the Commonwealth presented no

evidence that Appellant stole or received stolen property equal to the

amount of restitution he was ordered to pay as part of his sentence.

Specifically, Appellant contends he did not plead guilty to the theft of the

coin collection but only to receiving some of the stolen coins. Appellant did

not agree to pay restitution in full for the entire coin collection or even agree

in his plea agreement to a specific amount of restitution. Appellant asserts

he agreed that the court would determine at a restitution hearing the actual
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3
  We observe Appellant’s Rule 1925(b) statement appears to be untimely.
Nevertheless, the trial court issued a Rule 1925(a) opinion and addressed
Appellant’s complaint. See generally Commonwealth v. Burton, 973
A.2d 428 (Pa.Super. 2008) (en banc) (addressing post-amendment Rule
1925 and options regarding Rule 1925(b) statement in criminal context).



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value of the coins he received.    According to Appellant, no hearing took

place at which the Commonwealth presented any evidence of the value of

the stolen goods attributable to Appellant’s actions.   Appellant claims the

amount of restitution the court ordered him to pay was purely speculative

and unsupported by the record.     On this record, Appellant concludes that

part of his sentence ordering him to pay $30,000.00 in restitution is illegal.

We agree.

      Issues concerning a court’s statutory authority to impose restitution

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

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 not an award of

damages; it is a sentence. Commonwealth v. Atanasio, 997 A.2d 1181,

1182-83 (Pa.Super. 2010).


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            An appeal from an order of restitution based upon a claim
            that a restitution order is unsupported by the record
            challenges the legality, rather than the discretionary
            aspects, of sentencing. The determination as to whether
            the trial court imposed an illegal sentence is a question of
            law; our standard of review in cases dealing with questions
            of law is plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa.Super. 2012)

(internal     citations     and    quotation       marks   omitted).   Compare

Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa.Super. 2007) (noting

some challenges to amount of restitution can involve discretionary aspects

of sentencing).

      Section 1106 of the Crimes Code governs orders of restitution, in

pertinent part, 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.—

                                       *       *    *

               (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

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              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.

                                 *    *    *

18 Pa.C.S.A § 1106.    Section 1106(c)(2) includes the requirement that if

restitution is ordered, the amount and method of restitution 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). In any event,

        Because restitution is a sentence, the amount ordered
        must be supported by the record; it may not be
        speculative or excessive. In a case of theft by receiving
        stolen property, a reviewing court will not countenance a
        sentence provision which requires restitution for property
        which the Commonwealth has not proven was either stolen
        or received by the [defendant].

Commonwealth v. Reed, 543 A.2d 587, 589 (Pa.Super. 1988) (internal

citations and quotation marks omitted) (holding defendant convicted of

receiving stolen property cannot be ordered to make restitution for more

than value of property he received; evidence must show causal connection

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between loss sustained and defendant’s role in receiving stolen property;

restitution cannot exceed loss caused by defendant’s conduct).

       Instantly, Appellant pled guilty on July 31, 2013, to receiving stolen

property.     Although the plea agreement indicated Appellant was to pay

restitution in the amount of $30,000.00 to the owner of the stolen property,

the agreement also stated that the actual amount of restitution would be

determined at a hearing.             Likewise, at the guilty plea hearing, the

Commonwealth’s attorney requested “a restitution hearing and a sentencing

date to determine the actual value and what [Appellant is] liable for.” (N.T.

Guilty Plea Hearing at 2-3). At the conclusion of the plea hearing, the court

set a sentencing date and stated, “At that time[,] we’ll have your hearing

regarding the value of the property.” Id. at 8. Thus, the plea agreement as

to $30,000.00 in restitution was tentative at best and expressly conditional

on the court’s findings at a full restitution hearing. A review of the certified

record, however, reveals the court failed to hold a full restitution hearing

before sentencing.      At no time prior to sentencing did the Commonwealth

present any evidence that the value of the stolen coins received by Appellant

was anywhere near $30,000.00.4                 Nevertheless, as part of Appellant’s

sentence the court ordered Appellant to pay $30,000.00 in restitution to Mr.

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4
  In its recitation of facts at the guilty plea hearing, the Commonwealth’s
attorney merely stated that the value of the entire coin collection was “in
excess of” $10,000.00. (N.T. Guilty Plea Hearing at 7).



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Roke. Appellant objected to this restitution in a timely post-sentence motion

and on appeal.5

       We conclude the record in its present state does not support the

restitution order for $30,000.00 and, therefore, that part of the sentence is

illegal. See Stradley, supra; Reed, supra. Based on the foregoing, we

vacate Appellant’s judgment of sentence and remand for resentencing

following a full restitution hearing. See Commonwealth v. Deshong, 850

A.2d 712 (Pa.Super. 2004) (stating trial court’s sentencing scheme is upset

when appellate court rules restitution order imposed as part of sentence is

illegal; proper remedy is to vacate entire sentence and remand for

resentencing).

       Judgment of sentence vacated; case remanded for proper restitution

hearing and resentencing. Jurisdiction is relinquished.




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5
  To the extent the trial court and Commonwealth suggest Appellant waived
his restitution claim for failure to object at sentencing (suggesting the issue
implicates the discretionary aspects of sentencing), we observe Appellant
properly preserved his issue in a post-sentence motion, in his Rule 1925(b)
statement, and on appeal. In any event, Appellant’s issue as argued goes to
the legality of his sentence, which he could raise for the first time on appeal,
or this Court could even raise it sua sponte. See Commonwealth v.
Edrington, 780 A.2d 721 (Pa.Super. 2001) (assuming proper jurisdiction,
Appellant can raise issue involving legality of sentence for first time on
appeal or reviewing Court can raise it sua sponte). Therefore, we reject the
trial court’s and the Commonwealth’s waiver analysis.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2015




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