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Commonwealth v. Dietrich

May 27, 2009


Appeal from the Order of Superior Court at No. 1255 MDA 2005 entered 09-15-2006, reargument denied 11-22-2006, vacating and remanding the judgment of sentence of the Court of Common Pleas, Dauphin County, Criminal Division, at No. 180 CR 2004 dated 06-30-2005.

The opinion of the court was delivered by: Mr. Justice Eakin


ARGUED: May 12, 2008

RESUBMITTED: May 1, 2009


Appellant drove across the center line and struck another vehicle head-on. The driver of the other vehicle, Harold Zimmerman, sustained serious injuries; his father and passenger, Earl Zimmerman, sustained fatal injuries. A blood test revealed appellant's blood alcohol content was 0.18%.

Appellant pled guilty to driving under the influence (DUI), homicide by vehicle while DUI, aggravated assault while DUI, and summary offenses. In December, 2004, appellant was sentenced to 30 days to 12 months for the DUI conviction and concurrent sentences of five years incarceration for the homicide by vehicle while DUI and aggravated assault counts. Of present import, the sentencing court and parties discussed the interplay between mandatory restitution to the victims, the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq., and a pending civil law suit. N.T. Trial, 12/15/04, at 5-7.

Following the discussion, the sentencing court ordered restitution of $10,000 to each victim, but indicated the order could be modified. The court provided:

I will order at this count [appellant] pay restitution to the victim, Harold Zimmerman, in the amount of $10,000. But I want restitution memoranda of some sort from each of you within ten days. There's a possibility I'll amend that taking into account the restitution information that's already been provided in your respective positions.

Id., at 9. The court similarly noted the $10,000 restitution payable to Earl Zimmerman's estate was subject to modification. See id.

Over six months later, in June, 2005, the sentencing court amended the restitution order to provide $111,233.93 to Earl Zimmerman's estate and $4,258 to Harold Zimmerman. The court did not explain its reasons for the amendment. Appellant appealed, arguing the sentencing court lacked jurisdiction to amend the order more than 30 days after its entry. See 42 Pa.C.S. § 5505 (except as otherwise provided by law, court may modify orders within 30 days after entry). The Commonwealth conceded error, but requested the Superior Court remand for resentencing rather than vacating the amended restitution order and reinstating the original order.

The Superior Court vacated the judgment of sentence and remanded for resentencing. More specifically, the court interpreted § 1106(c)(2) of the Crimes Code, 18 Pa.C.S. § 1106(c)(2),*fn1 as requiring the manner and amount of restitution to be determined at the time of sentencing if restitution is imposed as a direct sentence. Commonwealth v. Dietrich, No. 1255 MDA 2005, unpublished memorandum at 4 (Pa. Super. filed September 15, 2006) (citing Commonwealth v. Mariani, 869 A.2d 484, 485-86 (Pa. Super. 2005); Commonwealth v. Deshong, 850 A.2d 712, 715-16 (Pa. Super. 2004); Commonwealth v. Wozniakowski, 860 A.2d 539 (Pa. Super. 2004)). The court recognized since § 1106(c)(3) specifically provides that the court must state "its reasons and conclusions as a matter of record for any change or amendment," it is logical to conclude that those reasons must support a modification and embody something that was not known and could not have been reasonably ascertained at the time the original order was entered.

Dietrich, at 4 (quoting Commonwealth v. Ortiz, 854 A.2d 1280, 1282-83 (Pa. Super. 2004) (en banc)); see 18 Pa.C.S. § 1106(c)(3) (court may alter or amend restitution order if court states reasons as matter of record). Based on this analysis, the court invalidated the original restitution order, stating:

[T]here is no discernable reason why the specific amounts of restitution owed the victims could not have been determined prior to sentencing. . If there was a legal issue regarding whether the court could order restitution to the victims beyond the $10,000 ., it should have been resolved prior to sentencing or sentencing deferred. Once 30 days had passed, the sentencing court lost jurisdiction ...

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