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Commonwealth v. Gentry

Superior Court of Pennsylvania

October 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RUSSELL ALLAN GENTRY, Appellant

Submitted August 11, 2014

Appeal from the Order of the Court of Common Pleas, York County, Criminal Division, No(s): CP-67-CR-0002747-2009. Before BRILLHART, J.

Anthony J. Tambourino, Public Defender, York, for appellant.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION

Page 814

MUNDY, J.

Appellant, Russell Allan Gentry, appeals from the December 17, 2013 order dismissing his " Motion for Restitution to be Discharged" and amending the restitution amount in his case from $49,000.00 to

Page 815

$42,000.00. After careful review, we reverse and remand for further proceedings.

We summarize the relevant factual and procedural background of this case as follows. On June 2, 2009, the Commonwealth filed an information charging Appellant with three counts of possession with intent to deliver (PWID), three counts of intentional possession of a controlled substance, and one count each of possession of drug paraphernalia and receiving stolen property.[1] On August 6, 2009, Appellant pled guilty to two counts of PWID and one count of receiving stolen property. Pursuant to a plea agreement with the Commonwealth, the trial court imposed an aggregate sentence of ten to 23 months' imprisonment to be followed by two years' probation.[2] Relevant to this appeal, at sentencing, the Commonwealth requested that the trial court " set [restitution] at [$1.00] to be refined by probation." N.T., 8/6/09, at 2. The trial court ordered that " [r]estitution is in favor of [the victim] at one dollar subject to review and adjustment." Id. at 3. At some point, the York County Adult Probation Office (Probation) arrived at the amount of $49,000.00.[3] Appellant did not file a direct appeal with this Court.

On February 20, 2013, Probation filed a violation report based on Appellant's failure to pay his court fees, costs, and restitution. [4] The trial court held a hearing on April 15, 2013 at which Appellant admitted the violation and agreed with Probation's recommended sentence. As a result, the trial court revoked Appellant's probation and imposed a new sentence of four years' probation. Appellant did not file a motion for reconsideration of sentence or a notice of appeal.

On June 11, 2013, Appellant filed a " Motion for Restitution to be Discharged." The trial court conducted a hearing on December 17, 2013, at the conclusion of which it entered an order dismissing the motion as untimely. However, the trial court reduced the amount of restitution to $42,000.00 based on a concession from the Commonwealth. On January 16, 2014, Appellant filed a notice of appeal.[5]

On appeal, Appellant raises three issues for our review.

1. Whether the [trial] court erred in delegating the full restitution determination to York County Adult Probation at ...

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