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[U] Commonwealth v. Hoerath

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOHN DOUGLAS HOERATH Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, J., GANTMAN, J., and OLSON, J.

MEMORANDUM

GANTMAN, J.

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. ...


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