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Commonwealth v. Poplawski

Superior Court of Pennsylvania

March 24, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE POPLAWSKI Appellant

         Appeal from the Judgment of Sentence May 2, 2016 in the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002941-2013

          BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E. [*]

          OPINION

          RANSOM, J.

         Appellant, George Poplawski, appeals from the judgment of sentence of eighteen months of probation, as well as restitution in the amount of $41, 637.00. We vacate and remand.

         The facts underlying Appellant's conviction are unnecessary to the disposition of his appeal. However, we briefly summarize the procedural history of his case as follows. Appellant was arrested and charged with theft by deception, deceptive or fraudulent business practices, and home improvement fraud for receiving advance payment for services that he failed to perform.[1] Following a jury trial in November 2014, Appellant was acquitted of the first two charges, but convicted of home improvement fraud. Specifically, the jury found him guilty of receiving advance payments of $2, 000.00 or less for work he did not perform. See 73 P.S. § 517.8(a)(2), (c)(2) ("A violation of subsection (a)(2) constitutes: … (ii) a misdemeanor of the first degree if the amount of the payment retained is $2, 000 or less…").

         On January 9, 2015, the court sentenced Appellant to eighteen months of probation. No amount of restitution was imposed on that date. On January 28, 2015, the court conducted a restitution hearing and imposed restitution in the amount of $41, 637.00.

         Appellant timely appealed his judgment of sentence. On February 9, 2016, this Court vacated Appellant's sentence in its entirety and remanded for resentencing. See Commonwealth v. Poplawski, 141 A.3d 589 (Pa. Super. 2016) (unpublished memorandum). As Appellant's restitution was part of his direct sentence, the court was required to impose restitution at the same time as his sentencing hearing. Id.

         On May 2, 2016, Appellant appeared for resentencing. The Commonwealth referred to the complainant's trial testimony regarding the amount expended to correct work Appellant had allegedly done. See Notes of Testimony (N. T.), 5/2/16, at 3-4. Further, the Commonwealth indicated a contractor hired by the complainant had testified that he expended $41, 637.00 to correct the work Appellant had allegedly performed. Id. The court resentenced Appellant to eighteen months of probation and restitution in the amount of $41, 637.00. Id. at 6.

         Appellant timely appealed and filed a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The sentencing court issued a responsive opinion.

         On appeal, Appellant raises the following issues for our review:

I. The honorable trial court erred when it imposed an illegal sentence of restitution in the amount of $41, 637.00, because there was no causal connection between the crime for which Appellant was convicted of and the amount of said restitution.
II. The honorable trial court erred when it imposed an illegal sentence of restitution in the amount of $41, 6370.00, because said amount was speculative and not supported by the record.

Appellant's Brief at 4 (unnecessary capitalization omitted).[2]

         Due to our disposition of Appellant's issues, we will address them together. Appellant argues that the court erred in imposing an illegal sentence of restitution, because 1) there was no causal connection between the amount of the restitution and the crime for which Appellant was convicted, and 2) because the amount of ...


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