J-S19036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :       IN THE SUPERIOR COURT OF
                                                   :            PENNSYLVANIA
                       Appellee                    :
                                                   :
                v.                                 :
                                                   :
    EILEEN JENKINS                                 :
                                                   :
                       Appellant                   :          No. 1886 EDA 2016


             Appeal from the Judgment of Sentence April 26, 2016
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0409081-1998


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                         FILED JUNE 05, 2018

       Appellant, Eileen Jenkins, appeals from the judgment of sentence

imposed for nonpayment of restitution.1 We vacate in part and affirm in part.


____________________________________________


1Appellant was convicted pursuant to section 481 of the Public Assistance Act,
62 P.S. §§ 401-493, which provides, in pertinent part, that:

       (a) Any person who, . . . by means of a wilfully false statement
       or misrepresentation, or by impersonation or by wilfully failing to
       disclose a material fact regarding eligibility or other fraudulent
       means, secures, or attempts to secure, or aids or abets or
       attempts to aid or abet any person in securing assistance, or
       Federal food stamps, commits a crime[.] . . .

                                       *       *       *

       (c)   Any person committing a crime enumerated in subsection
       (a) shall be ordered to pay restitution of any moneys received by
       reason of any false statement, misrepresentation, impersonation,


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       We take the following facts and procedural background from our

independent review of the record. On May 12, 1998, Appellant pleaded guilty

to violating the Public Assistance Act by fraudulently obtaining welfare

benefits. Immediately thereafter, the court ordered that Appellant pay forty-

dollars per month in restitution, payable to the Pennsylvania Department of

Welfare, as a condition of probation. (Order, 5/12/98). On April 10, 2003,

the court revoked Appellant’s probation, and imposed a new five-year term

during which Appellant again was ordered to pay the outstanding restitution

at a rate of forty-dollars per month.            After several revocations for non-

payment, on February 2, 2012, the court again revoked probation, ordered

Appellant to pay sixty dollars per month on her outstanding balance, and

continued her probation for six months. On June 27, 2012, the court again

revoked probation, imposed a new sentence of twelve months’ reporting


____________________________________________


       failure to disclose required information or fraudulent means.
       Restitution ordered under this subsection may be paid in a lump
       sum, by monthly installments or according to such other schedule
       as is deemed just by the sentencing court. Notwithstanding the
       provisions of 18 Pa.C.S.[A.] § 1106(c)(2) (relating to restitution
       for injuries to person or property) to the contrary, the period of
       time during which the offender is ordered to make restitution may
       exceed the maximum term of imprisonment to which the offender
       could have been sentenced for the crime of which that person was
       convicted, if the sentencing court determines such period to be
       reasonable and in the interests of justice.

62 P.S. § 481(a), (c).




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probation, and ordered Appellant to pay sixty dollars per month in restitution.

Appellant’s probation expired on June 27, 2013.            She stopped paying

restitution two years later, on June 16, 2015, in spite of there still being a

balance of $7,567.14.         On April 26, 2016, the trial court held a hearing

regarding Appellant’s unpaid restitution and ordered her to pay fifty dollars

per month on the approximately $7,500.00 in outstanding restitution, revoked

her expired probation, and imposed “[a] new two year probation.” (See N.T.

Hearing, 4/26/16, at 8; see id. at 6).2 Appellant timely appealed.3

        Appellant raises one issue for our review: “[Whether the trial] court is

precluded from revoking an expired probation and imposing a new sentence

for alleged technical violations that occurred after the probation expired?”

(Appellant’s Brief, at 3).

        Appellant’s issue raises a question of law.

               The scope and standard of review applied to determine the
        legality of a sentence are well established. If no statutory
        authorization exists for a particular sentence, that sentence is
        illegal and subject to correction. In evaluating a trial court’s
        application of a statute, our standard of review is plenary and is
        limited to determining whether the trial court committed an error
        of law.

Commonwealth v. Karth, 994 A.2d 606, 607 (Pa. Super. 2010) (case

citation omitted).


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2   Appellant filed a timely post-sentence motion that the court did not address.

3The court did not order Appellant to file a statement of errors complained of
on appeal. It did not file an opinion. See Pa.R.A.P. 1925.

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             [I]n an appeal from a sentence imposed after the court has
       revoked probation, we can review the validity of the revocation
       proceedings, the legality of the sentence imposed following
       revocation, and any challenge to the discretionary aspects of the
       sentence imposed. In a revocation hearing[,] the Commonwealth
       has the obligation of establishing its case by a preponderance of
       the evidence.

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation

omitted). Further, “a sentence for a violation of the terms of probation can

be imposed after the expiration of the probationary period if the revocation

is based on a violation which occurred within the probationary

period.” Id. at 137 (citation omitted; emphasis added).

       Here, although the trial court revoked Appellant’s expired probation, the

record reflects that it did not hold a violation of probation hearing before doing

so. (See N.T. Hearing, 4/26/16, at 2-9). In fact, the Commonwealth did not

even argue that Appellant violated her probation during its term. (See N.T.

Hearing, 4/26/16, at 2-9). See Wright, supra at 137. Therefore, we are

constrained to conclude that the trial court abused its discretion in revoking

Appellant’s expired probation and entering a violation of probation order. See

Wright, supra at 136.4

       However, we conclude that the trial court properly ordered Appellant to

pay the balance due on the restitution balance. It is well-settled that “[a]n



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4We note that we are not legally persuaded by the Commonwealth’s reliance
on Pennsylvania Rule of Criminal Procedure 456, (see Commonwealth’s Brief,
at 5-6), because Rule 456 applies to procedures in summary cases.

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order of restitution is a sentence, whether it is imposed as a direct sentence

or as a condition of probation.” Commonwealth v. Griffiths, 15 A.3d 73,

77 (Pa. Super. 2010). Further:

      Unlike restitution subject to 18 Pa.C.S.A. § 1106(c)(2),
      welfare fraud restitution has an unlimited repayment
      period. . . .

             Though an obligation to pay a large amount of welfare fraud
      restitution in relatively small periodic payments may result in a
      perpetual obligation hanging over the defendant, this appears to
      be the necessary and intended effect of the legislature’s express
      decision to exempt 62 [P.S.] § 481(c) from the operation of 18
      Pa.C.S.A. § 1106(c)(2). We note that while a convict may not
      constitutionally be punished for failing to make restitution
      payments he or she is incapable of making, a poor person has no
      right to discharge of a criminal restitution obligation on the basis
      of poverty.

                                  *    *    *

      . . . the ascertainable legislative intent indicates that 62 [P.S.] §
      481(c) imposes upon the trial court a mandatory duty to impose
      an order of restitution as to any moneys obtained as a result of
      the welfare fraud of which the defendant is convicted.

Commonwealth v. Ferguson, 552 A.2d 1075, 1087-88 (Pa. Super. 1988)

(emphasis in original omitted; emphasis added).

      Instantly, the Commonwealth presented evidence that Appellant still

has a restitution balance of $7,567.14. (See N.T. Hearing, 4/26/16, at 4-5).

Appellant admitted to her non-payment of the court-ordered restitution after

June 16, 2015, that she still owed approximately $7,500.00, and that she

could afford to pay fifty dollars per month toward the balance.       (See N.T.

Hearing, 4/26/16, at 6, 8).     Therefore, because Appellant’s welfare fraud


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restitution has an unlimited repayment period, the trial court properly ordered

her to pay restitution at a rate of fifty dollars per month on the balance of

restitution due. See Ferguson, supra at 1087-88.

      In sum, we vacate the court’s order to the extent that it found Appellant

violated her expired probation. We affirm the portion of the order directing

Appellant to pay restitution.

      Judgment of sentence vacated in part and affirmed in part.          Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




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