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[U] Commonwealth v. Hoerath

Superior Court of Pennsylvania

March 3, 2014



Appeal from the Judgment of Sentence November 21, 2011 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002269-2009




Appellant, John Douglas Hoerath purports to appeal from the restitution imposed in the Blair County Court of Common Pleas as part of the judgment of sentence, due to his nolo contendere plea to one count of receiving stolen property.[1] We vacate and remand for resentencing.

The relevant facts and procedural history of this appeal are as follows. On October 28, 2009, the Commonwealth filed a criminal information charging Appellant with receiving stolen property and theft by unlawful taking. The charges stemmed from Appellant's theft of goods and currency from his former employer. On November 21, 2011, Appellant executed a counseled written nolo contendere plea colloquy. That same day, the court conducted Appellant's plea hearing. Appellant entered an open nolo contendere plea to one count of receiving stolen property. The court accepted Appellant's plea and immediately sentenced Appellant as follows:

As to…Receiving Stolen Property…[Appellant] is sentenced to pay all costs of prosecution.
The Commonwealth and [Appellant] agree that a restitution hearing shall be held to determine an appropriate amount of restitution to be paid by [Appellant]. That hearing is to be scheduled by the Court Administrator….

(Sentencing Order, dated 11/21/11, at 1) (emphasis in original). Thus, the judgment of sentence was an open-ended sentence of restitution.

Almost four months later, on April 19, 2012, the court conducted the restitution hearing. The Commonwealth presented Appellant's former employer, David Barger. Mr. Barger testified that Appellant served as the manager at Roberts Beverage, a beer distributor, between 2007 and 2009. During that period, Appellant repeatedly stole money from the business. Specifically, Appellant pocketed cash from sales without inputting the proper sale price into the register. Appellant also gave improper employee discounts, did not enter certain credit card transactions into the register, accepted coupons for items that the coupons did not apply to, and took merchandise without paying for it. Mr. Barger discovered the thefts by reviewing copies of the sales receipts and video surveillance footage from inside the store.

The Commonwealth also presented Mr. Barger's bookkeeper, Darsha Townsend. Ms. Townsend reviewed two years' worth of sales receipts and surveillance videos, finding three hundred fifty-five (355) separate instances of theft committed by Appellant. On the receipts that corresponded to bogus transactions, Ms. Townsend made handwritten notes explaining how the information on the receipt differed from what she saw on the videos.[2]Following the witnesses' testimony, the Commonwealth submitted the receipts in question, as well as a spreadsheet prepared by Ms. Townsend that summarized her findings. On April 20, 2012, the court sentenced Appellant to make restitution to the victim in the amount of $7, 866.92. The court filed a praecipe to enter judgment against Appellant on April 26, 2012.

Notwithstanding counsel of record, Appellant filed a pro se motion for reconsideration on May 4, 2012. On May 8, 2012, the court dismissed the pro se motion. Appellant timely filed a pro se notice of appeal on June 6, 2012. In it, Appellant stated he had "removed" prior counsel. Also on June 6, 2012, Appellant filed a pro se concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

On June 25, 2013, this Court remanded the case to assess whether Appellant was entitled to appointed counsel and, if so, whether Appellant desired to continue pro se. Upon remand, the court conducted a hearing on September 3, 2013. At the conclusion of the hearing, the court determined Appellant satisfied the eligibility requirements for appointed counsel, and he no longer wished to proceed pro se. Over the next two months, the court appointed three different attorneys to represent Appellant. Each attorney, however, withdrew representation before filing a brief with this Court. Ultimately, the court appointed current counsel on November 22, 2013.[3]Current counsel filed an appellate brief on Appellant's behalf on January 21, 2014.

Appellant now raises four issues for our review:

(Appellant's Brief at 4-5).

On appeal, Appellant contends the Commonwealth's evidence at the restitution hearing did not prove the specific amount Appellant misappropriated from his former employer. Appellant asserts the Commonwealth focused on the methods Appellant utilized to commit his crime rather than the actual amount of losses suffered. Appellant acknowledges the Commonwealth submitted hundreds of receipts as well as Ms. Townsend's spreadsheet summarizing the questionable transactions. Appellant argues, however, that Ms. Townsend possessed no particular expertise in accounting, and she was unqualified to prepare any type of report or synopsis. Moreover, Appellant emphasizes that Ms. Townsend prepared the spreadsheet in conjunction with the surveillance videos from the store. Appellant avers the Commonwealth should have entered the videos into evidence. Additionally, Appellant complains that the court violated his due process rights by reviewing the receipts in camera. Appellant concludes the record does not support a restitution award of $7, 866.92. Appellant challenges both the imposition of restitution and the amount of restitution.

As a prefatory matter, the certified record reveals that the court initially imposed a generalized, open-ended sentence of restitution, which is a matter we can raise and review sua sponte as an illegal sentence. See Commonwealth v. Mariani, 869 A.2d 484 (Pa.Super. 2005) (explaining judgment of sentence including open restitution "to be determined at later date" is ipso facto illegal); Commonwealth v. Deshong, 850 A.2d 712, 713 (Pa.Super. 2004) (stating timeliness of court's imposition of restitution concerns legality of sentence). See also Commonwealth v. Oree, 911 A.2d 169, 172 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007) (maintaining legality of sentence claims cannot be waived, and Superior Court can review illegal sentences sua sponte).

Issues concerning a court's statutory authority to impose restitution implicate the legality of the sentence. Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008) (en banc), appeal denied, 605 Pa. 684, 989 A.2d 917 (2010). "Issues relating to the legality of a sentence are questions of law…." Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). When the legality of a sentence is at issue, our "standard of review over such questions is de novo and our scope of review is plenary." Id. "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated…." Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super. 2011), appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).

In criminal proceedings, an order of restitution is not an award of damages; it is a sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1182-83 (Pa.Super. 2010). "[T]he primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim's loss or personal injury and that it is his responsibility to repair the loss or injury as far as possible." Commonwealth v. Solomon, 25 A.3d 380, 389 (Pa.Super. 2011), appeal denied, 615 Pa. 766, 40 A.3d 1236 (2012) (quoting Mariani, supra at 486). "Thus recompense to the victim is secondary, as '[a] sentence imposing restitution is not an award of damages.'" Mariani, supra at 486 (quoting Commonwealth v. Wright, 722 A.2d 157, 160 (Pa.Super. 1998)).

§ 1106. Restitution for injuries to person or property
(a) General rule.―Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.
(c) Mandatory restitution.-
(1) The court shall order full restitution:
(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim, the victim's request for restitution as presented to the district attorney in accordance with paragraph (4) and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.
(3) The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.
(4)(i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

18 Pa.C.S.A. § 1106(a), (c)(1)-(4)(i) (emphasis added).

Section 1106(c)(2) includes "the requirement that if restitution is ordered, the amount must be determined at the time of sentencing…." Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa.Super. 2002) (emphasis in original).

It also placed upon the Commonwealth the requirement that it provide the court with its recommendation of the restitution amount at or prior to the time of sentencing. Although the statute provides for amendment or modification of restitution "at any time, " 18 Pa.C.S.A. § 1106(c)(3), the modification refers to an order "made pursuant to paragraph (2)…." Thus, the statute mandates an initial determination of the amount of restitution at sentencing. This provides the defendant with certainty as to his sentence, and at the same time allows for subsequent modification, if necessary.

Id. (internal citations and footnote omitted). See also Smith, supra (holding court cannot impose generalized, open-ended restitution order at sentencing and then "work out the details" and amounts at later date; order of restitution to be determined later is ipso facto illegal); Mariani, supra (explaining Section 1106(c) has two, inextricable components: (1) time at which restitution sentence must be imposed, that is, at sentencing hearing, and (2) specific nature of such sentence, that is, definite as to amount and method of payment).[4]

Instantly, the court accepted Appellant's plea on November 21, 2011, and ordered Appellant to pay the costs of prosecution plus restitution, to be determined at a separate hearing, without specifying a particular amount or method of payment. Pursuant to Section 1106(c)(2), the court had no authority to impose a generalized sentence of restitution, leaving the amount and method of payment open for determination at a later date. Here, restitution was intended as an integral part of the sentencing scheme, but the sentence initially entered without an amount of restitution or method of payment was illegal and must be corrected. See Smith, supra; Mariani, supra; Dinoia, supra. Accordingly, we vacate both the April 20, 2012 order for restitution in the amount of $7, 866.92 as well as the November 21, 2011 sentencing order, and remand for resentencing. See id. We also deny all of Appellant's open pro se motions.

Judgment of sentence vacated; case remanded for resentencing; Appellant's pro se motions are denied. Jurisdiction is relinquished.

Judgment Entered.

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