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[U] Commonwealth v. Tonik

Superior Court of Pennsylvania

March 7, 2014



Appeal from the Order March 8, 2013 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000682-2005




Appellant, Craig Tonik, appeals from the order entered March 8, 2013, by the Honorable Thomas King Kistler, Court of Common Pleas of Centre County, which denied his Motion for a Restitution Hearing. After review, we affirm.

On August 1, 2005, Tonik entered a guilty plea to Institutional Vandalism.[1] The charges arose from vandalism and fires set by Tonik at the School of Landscape Architecture building at Penn State University. Thereafter, the trial court sentenced Tonik pursuant to the agreement to two to five years' imprisonment, and additionally ordered Tonik to pay $925, 000.00 in restitution. Tonik did not file any post-sentence motions challenging the restitution amount or seek a direct appeal.

Over seven years thereafter, on November 14, 2012, Tonik filed a Motion for Restitution Hearing. The motion averred that Tonik had been awarded monies from of a Wrongful Death and Survival Claim, and that as a result the Centre County Probation Department had filed a restitution claim for the entire $925, 000.00 sum. Motion for Restitution hearing, 11/14/12. Tonik requested a restitution hearing "so that Defendant is able to challenge the current restitution." Id. Briefs on the motion were submitted, and on March 8, 2013, the trial court entered an order denying Tonik's motion. This timely appeal followed.

On appeal, Tonik argues that the trial court erred in denying his motion requesting a restitution hearing.[2] The imposition of restitution is vested in the sound discretion of the trial court. Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013).

The Commonwealth argues that Tonik's request for a restitution hearing is time-barred. Tonik counters that 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. 18 Pa.Cons.Stat.Ann. § 1106(c)(3).[3] While we agree that Section 1106(c)(3) empowers the trial court to modify a restitution order at any time, the statute does not speak to a defendant's entitlement to a restitution hearing.

Our review of the record reveals no indication that Tonik either requested a restitution hearing or otherwise objected on any grounds to the restitution amount at the time it was imposed in August 2005. Indeed, Tonik explicitly agreed to pay restitution in the amount of $950, 970.54 in a signed agreement with the Centre County Probation and Parole Department, dated October 15, 2007. "It is incumbent upon counsel to make a proper objection if he or she believes that a trial court is not following the law, thus giving the trial court an opportunity to correct any error in a timely fashion." In re B.T.C., 868 A.2d 1203, 1205 (Pa.Super. 2005) (finding failure to timely object timely request a restitution hearing resulted in waiver to claim challenging restitution amount on appeal). See also Commonwealth v. Smith, 606 A.2d 939, 942 (1992) (internal citations omitted) (this Court "will not consider a claim on appeal which was not called to the trial court's attention at a time when any error committed could have been corrected[]"). Accordingly, we find Tonik's failure to timely request a restitution hearing in the lower court results in waiver of this claim on appeal.

Although our decision finds no abuse of discretion in the trial court's denial of Tonik's request for a restitution hearing, our analysis has no bearing on the merits of any motion to modify or amend the restitution amount Tonik may pursue in the future. However, we remind Tonik that

[a]lthough section 1106(c)(3) allows the judge to alter restitution, this does not mean that in every case the judge can alter the restitution award at any time for any reason. There must be justifiable reasons for the modification, and other principles of law must be followed. At some point, finality is needed.

Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa.Super. 2004). Order affirmed. Jurisdiction relinquished.

Judgment Entered.

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