Appeal from the Order of June 10, 2010 In the Court of Common Pleas of Allegheny County. Criminal Division, at No(s): CP-02-CR-0008826-2007
BEFORE: PANELLA, OTT, and STRASSBURGER*fn1 , JJ.
Appellant, Jamey William McKee, appeals from the order entered on June 10, 2010, in the Court of Common Pleas of Allegheny County, which denied his Petition for Return of Restitution and Court Costs/Fees. On appeal, McKee argues that the trial court erred when it determined it was without jurisdiction to return the restitution and court costs McKee paid following this Court's order reversing McKee's judgment of sentence.*fn2 After review, we reverse and remand with instructions.
We set forth the pertinent facts and procedural history as follows.
Following a non-jury trial, on May 22, 2008, McKee was convicted of burglary,*fn3 criminal conspiracy to commit burglary,*fn4 and theft by unlawful taking.*fn5 On July 25, 2008, the trial court sentenced McKee to six to 23 months imprisonment, to be followed by one year probation. The trial court stipulated that McKee was to be paroled immediately and placed on intermediate punishment for the remainder of parole. See Order, 7/25/08. Additionally, the trial court ordered McKee to pay $500.00 restitution plus costs of prosecution. See Restitution Order, 7/25/08.
On August 25, 2008, McKee filed a timely appeal with this Court. By memorandum opinion filed March 5, 2010, a panel of this Court overturned McKee's convictions based on insufficient evidence and reversed his judgment of sentence. See Commonwealth v. McKee, 996 A.2d 549 (Pa. Super., filed 3/5/10) (unpublished mem.). The Commonwealth did not seek discretionary review with the Pennsylvania Supreme Court.
Subsequent thereto, on April 12, 2010, McKee filed a Petition for Return of Restitution and Court Costs/Fees.*fn6 Therein, McKee argued that as this Court reversed his judgment of sentence, the lower court's order of restitution was nullified and that the court costs and money paid to the victim should be returned to McKee. See Petition for Return of Restitution and Court Costs/Fees, 4/12/10, at ¶¶11-12. Following a hearing, the trial court denied McKee's Petition on the basis that it did "not have the authority to exercise jurisdiction over the matter at issue." Order, 6/10/10. This timely appeal followed.
In the context of criminal proceedings, it is well-settled that "an order of 'restitution is not simply an award of damages, but, rather, a sentence.'" Commonwealth v. Atanasio, 997 A.2d 1181, 1182-1183 (Pa. Super. 2010) (citing Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008)). Herein, McKee argues that this Court's order reversing his judgment of sentence rendered the trial court's order of restitution a nullity. "An appeal from an order of restitution based upon a claim that a restitution is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing." Id., at 1183 (citing Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005)). "When we address the legality of a sentence, our standard of review is plenary and is limited to determining whether the trial court erred as a matter of law." Commonwealth v. Pombo, 26 A.3d 1155 (Pa. Super. 2011) (citation omitted).
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court referenced the Idaho Supreme Court's decision in Hooper v. Idaho, 248 P.3d 748-49 (Idaho, 2011). In that case, Hooper was convicted of various offenses and ordered to pay $2,500 in restitution to the Payette County Court, which would in turn forward the payments to the Idaho Industrial Commission's crime victim's compensation account. See id. at 749. After Hooper's convictions were overturned on appeal, Hooper moved to have the Industrial Commission refund his payments to the restitution order. See id. at 750. Ultimately, the Idaho Supreme Court determined that the lower court did not have personal jurisdiction to order the Industrial Commission to refund Hooper's restitution. See id. at 750-751.
Although we agree with the trial court that there appears to be no Pennsylvania case that is directly on point in this matter, we disagree that the decision of the Idaho Supreme Court in Hooper provides us with any guidance.*fn7 Several Pennsylvania decisions, while not directly on point with the facts of this case, support the authority of the trial court to order the return of restitution erroneously paid. See, e.g., Commonwealth v. Langston, 904 A.2d 917 (Pa. Super. 2006) (ordering return of restitution money paid to the Crime Victim's Compensation Fund where the decedent's son was not a direct victim for restitution purposes under Section 1106 of the Crimes Code); Commonwealth v. Wozniakowski, 860 A.2d 539 (Pa. Super. 2004), appeal denied, 583 Pa. 662, 875 A.2d 1075 (2005) (holding that proper remedy for trial court's illegal open-ended award of restitution was for trial court to order the victim to return to appellant any money paid).
We additionally find no impediment to the trial court's jurisdiction over this matter. We are cognizant that at first blush, any modification of the original restitution order would appear to violate Section 5505 of the Judicial Code, which provides that: "Except as otherwise provided or proscribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal for such order has been taken or allowed." 42 PA.CONS.STAT.ANN. § 5505. However, as noted by our Supreme Court in Commonwealth v. Dietrich, 601 Pa. 58, 970 A.2d 1131 (2009), Section 1106(c)(3) of the Crimes Code authorizes a sentencing court to modify restitution orders at any time provided the court states its reasons as a matter of record. See id. at 1135, 970 A.2d at 65 (citing 18 PA.CONS.STAT.ANN. § 1106(c)(3)).*fn8 The Court in Dietrich further determined that "Section 1106(c)(3)'s broad language indicates a legislative intent that courts have jurisdiction to modify restitution orders at any time without regard to when information should have been present for consideration." Id. at 1135, 970 A.2d at 65-66 (emphasis added). Based on the forgoing, we are constrained to find the trial court erred when it determined that it was without jurisdiction to modify its restitution order.
Moreover, we find adequate authority in Rule 2591 of the Pennsylvania Rules of Appellate Procedure to enable the trial court to refund, if appropriate, court fees and costs. That rule provides, in pertinent part:
Rule 2591. Proceedings on Remand
(a) General rule. On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of ...