Com. v. Ormsbee G. ( 2019 )

J. A21036/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARD ORMSBEE, : No. 227 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered December 10, 2018,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0002329-2018
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 10, 2019
Gard Ormsbee appeals from the December 10, 2018 judgment of
sentence, as made final by the entry of a restitution order on December 26,
2018,1 after appellant pled guilty to one count of receiving stolen property.2
We vacate appellant’s judgment of sentence and remand for resentencing.
The record reflects that appellant’s guilty plea stemmed from his theft
of several pieces of the victim’s jewelry that he later sold to a pawnshop. On
November 27, 2018, appellant entered an open guilty plea to one count of
receiving stolen property. The Commonwealth and appellant agreed to the
imposition of a two-year probationary term, but could not agree on the
1We note that the restitution order is dated December 24, 2018, but was not
docketed until December 26, 2018.
2 18 Pa.C.S.A. § 3925(a).
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amount of restitution. On December 10, 2018, the sentencing court held a
restitution hearing at which time the victim testified as to her estimate of the
value of the jewelry that appellant had stolen. Immediately following that
hearing, the trial court held a sentencing hearing and sentenced appellant to
two years of probation, but deferred imposition of restitution until a later date.
On December 26, 2018, the sentencing court entered an order that directed
appellant to pay the victim $2,200 in restitution. Appellant filed a timely
post-sentence motion, which the sentencing court denied.
Appellant filed a timely notice of appeal. The sentencing court then
ordered appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The sentencing
court then filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Did the [sentencing] court err by awarding restitution
that is speculative, unsupported by the record, and in
an amount that is greater than the cash equivalent of
the property lost due to the crime?
Appellant’s brief at 2.
“[A] generalized, open-ended sentence of restitution . . . is a matter we
can raise and review sua sponte as an illegal sentence.” Commonwealth
v. Ramos, 197 A.3d 766, 768 (Pa.Super. 2017), citing Commonwealth v.
Mariani, 869 A.2d 484, 487 (Pa.Super. 2005) (reiterating where judgment of
sentence includes open restitution “to be determined later,” judgment of
sentence is ipso facto illegal); Commonwealth v. Deshong, 850 A.2d 712,
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713 (Pa.Super. 2004) (stating timeliness of sentencing court’s imposition of
restitution pertains to legality of sentence); Commonwealth v. Oree, 911
A.2d 169, 172 (Pa.Super. 2006), appeal denied, 918 A.2d 744 (Pa. 2007)
(restating legality of sentence claims are nonwaiveable, given proper
jurisdiction, and this court may sua sponte review illegal sentences).
Issues concerning a court’s statutory authority to
impose restitution implicate the legality of the
sentence. Issues relating to the legality of a sentence
are questions of law. When the legality of a sentence
is at issue, our standard of review over such questions
is de novo and our scope of review is plenary. If no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Ramos, 197 A.3d at 768-768 (citations, ellipses, and quotation marks
omitted).
“In the context of criminal proceedings, it is well-settled that an order
of restitution is not simply an award of damages, but, rather, a sentence.”
Commonwealth v. McKee, 38 A.3d 879, 880-881 (Pa.Super. 2012) (internal
quotation marks and citations omitted). Further, “restitution is a creature of
statute and, without express legislative direction, a court is powerless to direct
a defendant to make restitution as part of a sentence.” Commonwealth v.
Harner, 617 A.2d 702, 704 (Pa. 1992).
Here, the trial court imposed restitution as a part of appellant’s direct
sentence pursuant to 18 Pa.C.S.A. § 1106, which provides, in relevant part:
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§ 1106. Restitution for injuries to person or
property
(a) General rule.--Upon conviction for any crime
wherein:
(1) property of a victim has been
stolen, converted or otherwise
unlawfully obtained, or its value
substantially decreased; or
(2) the victim, if an individual, suffered
personal injury directly resulting
from the crime,
the offender shall be sentenced to make
restitution in addition to the punishment
prescribed therefor.
....
(c) Mandatory restitution.—
....
(2) At the time of sentencing the
court shall specify the amount
and method of restitution. . . .
....
(3) The court may, at any time[,] . . .
alter or amend any order of
restitution made pursuant to
paragraph (2), provided, however,
that the court states its reasons and
conclusions as a matter of record for
any change or amendment to any
previous order.
18 Pa.C.S.A. § 1106(a) & (c)(2) & (3) (emphasis added).
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Section 1106(c)(2) requires that the sentencing court specify the
amount and method of restitution at the time of sentencing. Ramos, 197
A.3d at 770. In other words, “the statute mandates an initial determination
of the amount of restitution at sentencing. This provides the defendant with
certainty as to his sentence, and at the same time allows for subsequent
modification, if necessary.” Id., citing Commonwealth v. Smith, 956 A.2d
1029, 1033 (Pa.Super. 2008) (finding an order of restitution “to be determined
later” ipso facto illegal); Mariani, 869 A.2d at 486 (explaining two
inextricable components of Section 1106(c) are (1) the time at which the
restitution sentence must be imposed, i.e., at sentencing hearing, and (2) the
specific nature of the restitution sentence, i.e., definite as to amount and
method of payment).
Thus, an order entered after the delayed restitution
proceeding is not what renders the sentence illegal; it
is the court’s order at the initial sentencing,
postponing the imposition of restitution until a later
date, that fails in both respects to meet the criteria of
the restitution statute and taints the entire sentence.
As long as the sentencing court sets some amount and
method of restitution at the initial sentencing, the
court can later modify that order, but only if the
requirements of Section 1106(c)(3) are met.
Ramos, 197 A.3d at 770 (internal citations omitted).
Here, the record reflects that on December 10, 2018, the sentencing
court held a restitution hearing, immediately followed by a sentencing hearing.
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On that date, the trial court sentenced appellant to two years of probation for
his receiving stolen property conviction. The court then stated that:
I’m actually going to hold under advisement this
restitution order. I need to look into the case law to
see where we are with this so I will have that order
out by the end of the week on restitution.
Notes of testimony, 12/10/17 at 17. With respect to restitution, the
December 10, 2018 written sentencing order fails to set forth an amount and
method of restitution and merely states, “restitution held under advisement.”
(Sentencing order, 12/10/19 at 2.) It was not until December 26, 2018 that
the sentencing court entered an order that directed appellant to pay restitution
to the victim in the amount of $2,200. (Order of court, 12/26/18). Although
the record demonstrates that the sentencing court intended to impose
restitution as part of the December 10, 2018 sentencing scheme, the
December 10, 2018 judgment of sentence included open restitution to be
determined at a later date and is, therefore, ipso facto illegal. See Smith,
956 A.2d at 1033. Furthermore,
[n]otwithstanding the statutory language [of
Section 1106] and case law requiring imposition of
some amount of restitution and a method of payment
at the time of sentencing, we continue to see
[sentencing] courts make a general order of
restitution as part of the sentence but postpone the
actual specifics to a later date. This practice is
contrary to law. In other words, a sentence intended
to include restitution, which is initially entered without
a definite amount and a method of payment is illegal
and must be vacated in its entirety.
Ramos, 197 A.3d at 770-771.
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Consequently, we vacate the December 10, 2018 judgment of sentence
and the December 26, 2018 restitution order and remand for resentencing.
As a result of our disposition, we decline to address appellant’s claim that the
record fails to support the restitution order.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/19
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