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COMMONWEALTH PENNSYLVANIA v. THOMAS HARRY KERR (04/16/82)

decided: April 16, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS HARRY KERR, APPELLANT



No. 178 Pittsburgh, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mercer County, No. 419 Criminal 1980.

COUNSEL

Robert G. Kochems, Public Defender, Mercer, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Wieand, Johnson and Montemuro, JJ. Johnson, J., concurs in the result.

Author: Wieand

[ 298 Pa. Super. Page 258]

This is an appeal from a judgment of sentence imposed following entry of a plea of guilty to theft by unlawful taking. Thomas Harry Kerr, the appellant, contends that because the victim was insured and received compensation from his insurer for the loss sustained, appellant could not properly be directed, as a part of his sentence, to make restitution.*fn1 We disagree and affirm the judgment of sentence.

[ 298 Pa. Super. Page 259]

The Commonwealth contends that the issue of restitution has been waived by appellant's failure to file a motion to "modify" his sentence in accordance with Pa.R.Crim.P. 1410. Appellant's contention, however, is that the sentence imposed by the trial court is unauthorized and illegal. An illegal sentence cannot be waived. Commonwealth v. Walker, 468 Pa. 323, 330, 362 A.2d 227, 230 (1976); Commonwealth v. Brazzle, 272 Pa. Superior Ct. 438, 442, 416 A.2d 536, 539 (1979); Commonwealth v. Albertson, 269 Pa. Superior Ct. 505, 510 n.7, 410 A.2d 815, 817 n.7 (1979); Commonwealth v. Young, 256 Pa. Superior Ct. 392, 394, 389 A.2d 1180, 1181 (1978); Commonwealth v. Stouffer, 241 Pa. Superior Ct. 142, 146 n.2, 359 A.2d 829, 831 n.2 (1976). But cf. Commonwealth v. Lauer, 265 Pa. Superior Ct. 542, 402 A.2d 678 (1979). Thus, we are required to consider the merits of appellant's argument.

"In Pennsylvania restitution can be imposed either as a condition of probation or as a direct sentence." Commonwealth v. Erb, 286 Pa. Superior Ct. 65, 73, 428 A.2d 574, 578 (1981) quoting Commonwealth v. Fuqua, 267 Pa. Superior Ct. 504, 509, 407 A.2d 24, 26 (1979). Authority for ordering restitution as a direct sentence is contained in Section 9721(c) of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9721,*fn2 which provides:

(c) Restitution. -- In addition to the alternatives set forth in subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.

Authority to order restitution as a sentence is also conferred by Section 1106 of the Crimes Code, Act of June 18, 1976, P.L. 394, No. 86, § 1, as amended, Act of April 28,

[ 298 Pa. Super. Page 2601978]

, P.L. 202, No. 53, § 7(5), 18 Pa.C.S.A. § 1106, ...


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