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In the Superior Court of Pennsylvania v. Fred A. Stradley

August 13, 2012

IN THE SUPERIOR COURT OF PENNSYLVANIA APPELLEE
v.
FRED A. STRADLEY, APPELLANT



Appeal from the Judgment of Sentence entered February 19, 2011, in the Court of Common Pleas of Bradford County Criminal Division, at No. CP-08-CR-0000575-2009.

The opinion of the court was delivered by: Strassburger, J.:

BEFORE: STEVENS, P.J., BOWES, and STRASSBURGER*fn1 , JJ.

OPINION BY STRASSBURGER, J.:

On appeal, Fred A. Stradley (Appellant) challenges the propriety of the sentencing court's decision to award restitution without deducting the amount paid to the victim by his insurer. We affirm in part, vacate in part, and remand for entry of a restitution award payable to Appellant's insurer, Allstate Insurance Company ("Allstate") in the amount of $7,900.00

On December 21, 2009, Appellant entered a guilty plea to driving under the influence of alcohol (DUI) (Tier III, second offense, highest rate of alcohol),*fn2 which arose from Appellant's involvement in a two vehicle accident, on August 23, 2009. On February 16, 2010, Appellant was sentenced to 120 days to 18 months' imprisonment and directed to pay a $1,500.00 fine. Appellant additionally was ordered to pay $7,900.00 in restitution, for property damage incurred in the accident. No post-sentence motions were filed. Appellant also did not file a direct appeal. On April 12, 2011, Appellant filed a "Combined Motion to Vacate Restitution Order and Declare Defendant in Compliance with [75 Pa.C.S. § 1550(b)(1)(i) (pertaining to judicial review of driver's license suspensions or revocations)]." Attached as exhibits to the motion were a letter from Allstate, and supporting documentation, advising that it had satisfied payment for the damages sustained by Regina Porter (the victim), the driver of the other vehicle, in the form of three checks in the amount of $7,681.05 (issued 9/9/2009 for property damage), $375.76 (issued 9/11/2009 for loss of services - rental car), and $217.95 (issued 9/26/2009 for property damage). The trial court dismissed Appellant's motion, reasoning that it was an untimely motion to modify sentence. See Order dated 6/21/2011. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents for our consideration the following issues:

1. Whether the trial court erred in finding Appellant's motion to vacate restitution untimely?

2. Whether the trial court erred in not allowing the restitution portion of the sentence to be vacated because Appellant's insurance company had already paid the victim?

Appellant's Brief at I (paraphrased).*fn3

Initially, we note that when a defendant enters a guilty plea, he or she waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed. Commonwealth v. Boyd, 835 A.2d 812, 819 (Pa. Super. 2003). Appellant's questions, regarding the restitution portion of his sentence, concern not only the jurisdiction of the trial court to review the claim, but also concern the trial court's original authority to impose it. Essentially, Appellant maintains that he should not be required to pay restitution for amounts already paid on his behalf, and that, as such, the amount of the restitution award should be vacated due to full payment of the actual loss already having been made by his insurer to the victim.

In the context of criminal proceedings, an order of "restitution is not simply an award of damages, but, rather, a sentence." Commonwealth v. C.L., 963 A.2d 489, 494 (Pa.Super. 2008). 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. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.Super. 2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005). "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. Hughes, 986 A.2d 159, 160 (Pa.Super. 2009).

Commonwealth v. Atanasio, 997 A.2d 1181, 1182-83 (Pa.Super. 2010).

Thus, because Appellant's underlying claim on appeal challenges the legality of his sentence, its review is not abrogated by the entry of his guilty plea. However, before reaching the merits of this issue, we first must determine whether the trial court had jurisdiction to address Appellant's motion to vacate restitution, which was filed approximately fourteen months after judgment of sentence was entered.

Section 1106 of the Crimes Code, which governs restitution for injuries sustained to person or ...


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