Commonwealth v. Deshong

KLEIN, J. ¶ 1 Kenneth Eugene Deshong was charged with arson and insurance fraud for burning down a restaurant he owned to collect the insurance money. Deshong pled guilty to insurance fraud in a plea agreement. At the time of the plea agreement, he expressly agreed to pay restitution “as determined by the Fulton County Probation Department, subject to a hearing if requested.” The Commonwealth now appeals from the trial court’s order refusing to set the amount of restitution almost two years later after Deshong’s sentencing. ¶ 2 At the time of sentencing, the trial court was still not able to determine whom he owed or how much, so the court entered an open-ended restitution order: “[RJesti-tution shall be made in the amount of $TBD to person or entities to be determined as determined to be due and payable by the Fulton County Probation Department.” The trial court also imposed 48 months’ probation and required him to pay costs. Fourteen months after sentencing, the amount of restitution still had not been determined. At the Probation Department’s request, the trial court scheduled a determination hearing. ¶ 3 Between sentencing and the determination hearing, we decided Commonwealth v. Dinoia, 801 A.2d 1254 (Pa.Super.2002), which pointed out that under the amended restitution statute, restitution must be determined at the time of sentencing if the restitution is imposed as a direct sentence. The Commonwealth requested that the trial court set the amount of restitution. However, Deshong opposed this request, arguing that because the specifics of restitution had not been set at sentencing, the restitution was illegal. The trial court 714 agreed and refused to set the amount of restitution. The Commonwealth has appealed from this order,1 asserting four issues: 2 1. Deshong validly waived his statutory rights to have restitution determined by the court at sentencing. 2. The trial court improperly extended Dinoia to the express waiver at issue in this case. 3. The trial court erred in applying Dinoia, which interpreted 18 Pa. C.S.A. § 1106, when the law applicable to this case is 42 Pa.C.S.A. § 9754. 4. Alternatively, even if the order was illegal, the trial court should have entered an order setting restitution. ¶ 4 The trial judge in this case intended restitution as a direct sentence, and 18 Pa.C.S.A. § 1106 requires that restitution be set at sentencing. We, therefore agree with the trial judge that his hands were tied and he was not permitted to set the amount of restitution later when petitioned by the Commonwealth. However, because an illegal direct sentence of restitution was ordered at sentencing, the entire sentencing scheme was upset and.we must vacate the sentence and remand for resentencing. ¶ 5 Unlike the circumstances in Dinoia, here the Commonwealth has specifically argued that removing the restitution order upsets the trial judge’s sentencing scheme. When a disposition by an appellate court alters the sentencing scheme, the entire sentence should be vacated and the matter remanded for resen-tencing. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), Commonwealth v. Farone, 808 A.2d 580 (Pa.Super.2002). Here, the trial court imposed probation and restitution, when the Sentencing Guidelines called for a minimum of three months’ incarceration. Under these circumstances, we are not confident that the trial court would have settled on probation if it had not also imposed restitution. Therefore, we agree with the Commonwealth that the sentencing scheme is upset. Although we agree with the trial court’s result, we will vacate the sentence and remand for resentencing. ¶ 6 A full discussion follows. ¶ 7 The text of the plea agreement is key to our decision. As part of the plea agreement, Deshong agreed to pay restitution but agreed that the probation department would set the specifics: Defendant further agrees to make restitution on charges to which he pleads guilty (as determined by the Fulton County Probation Department, subject to a hearing if requested).... ¶ 8 At sentencing, on a two-page form order, the trial judge ordered 48 months of probation and restitution. On the first page, there are four paragraphs for a variety of different sentences. The first three are for other sentences such as imprisonment or fines and were not used. The fourth paragraph was pre-printed and contained blank fines. As edited by the trial court the fourth paragraph reads: April 10, 2001 20 [sic ]3 the defendant is placed on Probation for a period of 48 months, upon the conditions that the defendant shall pay the costs of proseeu 715 tion, pay the sum of $500.00 to the use of the County of Franklin. ¶ 9 Following the fourth paragraph are seven indented paragraphs that list different combinations of probation conditions. The seventh paragraph is simply blank lines, apparently intended for the court to impose a unique condition. Each of these seven pai-agraphs has a check box. The second and seventh paragraphs are checked off and initialed (presumably by the trial judge). They read: The defendant is placed under the supervision of the Fulton County Probation Department and subject to the Rules and Special Conditions for Probation-Parole approved by the Court and authorized to be completed by the Probation Department, and any special condition of probation imposed by the supervision staff of the Department. Defendant shall complete 200 hours of Community Service through a Volunteer Fire Company. ¶ 10 At the bottom of the first page is the judge’s signature, below which is a handwritten notation: “Page 1 of 2.” ¶ 11 The second page of the sentencing form lists the caption at the top, has a blank for the date, an introductory sentence, and then continues the order. There are 15 paragraphs with check boxes, two of which are checked and initialed. Reading the introductory sentence together with the checked paragraphs, the second page reads: April 10, 2001, it is further ordered: That restitution shall be made in the amount of $TBD to person or entities to be determined as determined to be due and payable by the Fulton County Probation Department. That the defendant shall pay $25.00 per month supervision fee under the provisions of Act 35. The second page ends with the judge’s signature and a notation “Page 2 of 2.” ¶ 12 Reading the sentencing order in its totality, we think the restitution was a direct sentence rather than a condition of probation. The conditions of probation are on the first page. Although the conditions do not specifically include restitution, the trial court could have easily written the restitution directive on the blank lines in the conditions of probation section. Instead, he wrote it on the blank lines on the second page. Page 2, where restitution was ordered, contains a check-list for other orders of the court. Additionally, the restitution order follows the words “It is further ordered,” and the judge did not say the restitution was a condition of probation. Rather, he simply ordered Deshong to pay it. Considering the total circumstances, we conclude that restitution was a direct penal sentence. ¶ 18 As a direct sentence, the court was required to set the manner and amount of restitution at sentencing. 18 Pa.C.S.A. § 1106(c)(2); see also Dinoia, 801 A.2d at 1256. But whether it was a condition of probation or a direct sentence, the amount and manner of restitution must be determined by the sentencing court. Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574, 582 (1981); Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24, 27 (1979). ¶ 14 Restitution is authorized under both the Crimes Code and under the Sentencing Code. The Crimes Code, in 18 Pa. C.S.A. § 1106, controls restitution as a direct sentence.4 The Sentencing Code, in 42 Pa.C.S. § 9754, permits a sentence of probation and offers a non-exclusive list of 716 permissible conditions of probation, including restitution.5 ¶ 15 The two sections work in tandem and both can be given full effect. Probation is a separate sentence permitted by the Sentencing Code under certain circumstances. 42 Pa.C.S.A. §§ 9721(a)(1),6 9722.7 When the trial court chooses to impose a sentence of probation, it may attach conditions to the defendant staying on probation and not being put in jail, including paying restitution, whether the restitution is also a separate penal sentence or a rehabilitative condition of probation. 42 Pa.C.S.A. § 9754(b). ¶ 16 The Commonwealth insists that the restitution here was a “constructive alternative to incarceration,” so it was not punitive and part of the sentence but rehabilitative and a condition of probation. Even if it were a condition of probation, the sentencing court bears the duty of determining the specifics of restitution. “The court [is] not free to delegate these duties to an agency.” Erb, 428 A.2d at 582. Here, the trial court improperly permitted the Fulton County Probation Department to determine the amount and recipients of restitution. Because this restitution order amounted to an illegal sentence, we reject the Commonwealth’s waiver argument. An illegal sentence cannot be waived. Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.Super.2003). ¶ 17 The Commonwealth maintains that if we find the restitution order illegal, we should vacate the sentence and remand for resentencing, which would allow the trial court to comply with the statute. We agree. As we explained above, if our disposition apparently “alter[s] the sentencing seheme of the trial court,” we must vacate the sentence and remand for resentencing. Goldhammer, 517 A.2d at 1283; Farone, supra. ¶ 18 The particular history of this case makes this a proper disposition. Although the statute changed in 1998, Dinoia had not highlighted the effect of the change at the time the plea was offered. Likewise, it probably would not be part of the sentencing scheme of the judge to make the victims of the fraud await the outcome of a civil claim. ¶ 19 For example, in Farone, supra, we also directed resentencing on all bills, the total sentence was reduced after one set of charges was found invalid. On the charges we invalidated (unlawfully acquiring a controlled substance by fraud), Far-one had received two consecutive five year terms of probation — a total of ten years’ probation. On remaining charges of theft by unlawful taking and possession of a controlled substance, he received a total of two years probation concurrent to the ten-year probationary term. 808 A.2d 580 at 581. Therefore, the total probation was reduced from ten years to two years, which did alter the sentencing scheme in that case. 808 A.2d at 583. ¶ 20 Similarly, in this case, the guideline sentence called for a minimum of three months of incarceration. Instead, the trial court initially imposed only 48 months probation plus restitution and costs. The restitution would likely be a significant number, given the particular crime involved. Therefore, without the restitution, we are not confident that the trial court would have imposed probation. Therefore, be 717 cause the sentencing scheme has been upset, we vacate the entire sentence and remand for complete resentencing. Cf. Commonwealth v. Anders, 555 Pa. 467, 725 A.2d 170 (1999) (holding that discharge of defendant is appropriate for violation of 60-day sentencing rule only if defendant shows prejudice). ¶ 21 Three issues that will bear on resentencing remain unanswered, and the trial court should address them during re-sentencing: 1. Whether the harm the restitution will address was the indirect result of the insurance fraud; if it was, then restitution may be imposed only as a condition of probation, not as a direct sentence; Commonwealth v. Popow, 844 A.2d 13 (Pa.Super.2004); 2. Whether the trial court can impose restitution as a condition of probation, if the defendant at that time cannot afford to pay the restitution but is anticipated to be able to pay in the future; and 3. Whether following Commonwealth v. Erb, [286 Pa.Super. 65] 428 A.2d 574 (Pa.Super.1980[1981]) and Commonwealth v. Fuqua, [267 Pa.Super.504] 407 A.2d 24 (Pa.Super.1979), a trial judge can set an amount of restitution at the time of sentencing when it is a condition of probation, recognizing that it may later need to be modified? ¶ 22 Because these issues were not before us in this appeal, we express no opinion on their resolution. They will have to be considered by the trial court in the first instance. ¶ 23 Judgment of sentence vacated. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished. Footnotes [1] Although the judgment of sentence was entered in April of 2001, we find that the present order refusing to set restitution acts to finalize the sentence. Therefore, this appeal is timely. [2] In the interest of brevity, we paraphrased the Commonwealth’s issues. [3] The “2001” was handwritten. The "20” was pre-printed on the form and apparently intended as the first two digits of the year. [4] The text of 18 Pa.C.S.A. § 1106 is in the appendix found at the end of this opinion. [5] The text of 42 Pa.C.S.A. § 9754 is in the appendix found at the end of this opinion. [6] The text of 42 Pa.C.S.A. § 9721 is in the appendix found at the end of this opinion. [7] The text of 42 Pa.C.S.A. § 9722 is in the appendix found at the end of this opinion.