Com. v. Smith, J. ( 2017 )

J-S05008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES PATRICK SMITH,
Appellant No. 1354 MDA 2016
Appeal from the Judgment of Sentence Entered July 6, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001886-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
JUDGMENT ORDER BY BENDER, P.J.E.: FILED FEBRUARY 03, 2017
Appellant, James Patrick Smith, appeals from the judgment of
sentence of 1 to 4 years’ incarceration, and $21,600 in restitution, imposed
after he pled guilty to theft by deception, 18 Pa.C.S. § 3922(a)(1). On
appeal, Appellant challenges the amount of restitution ordered by the trial
court, contending, inter alia, that it violated the terms of his negotiated plea
agreement with the Commonwealth. After careful review, we vacate
Appellant’s sentence of restitution and remand for resentencing.
As just stated, Appellant complains that the sentence of restitution
imposed by the court violated the terms of his negotiated plea agreement,
which called for restitution in the amount of $12,000. See N.T. Plea
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S05008-17
Proceeding, 9/19/16, at 4 (Commonwealth’s stipulating that the agreed
upon amount of restitution was $12,000); id. at 5 (the court’s stating to
Appellant that the “agreed-upon figure for restitution is $12,000” and
Appellant’s indicating that he understood that amount to be part of his plea).
The Commonwealth and the trial court both agree with Appellant that the
court’s imposition of $21,600 violated the plea agreement, and that
resentencing is required. See Commonwealth’s Brief at 7-8 (“[T]his case
should be remanded for resentencing with the restitution amount to be
$12,000.”); Trial Court Opinion, 10/12/16, at 3 (unnumbered) (“Because the
restitution amount was part of a negotiated plea in this case, this court
requests that the Superior Court remand the case for resentencing with the
restitution amount to be $12,000.”). Based on our review of the record, we
agree. Thus, we vacate Appellant’s sentence of restitution, and remand for
resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
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