Commonwealth v. Cochran II, S., Aplt.

[J-112-2019] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 77 MAP 2018
:
Appellee : Appeal from the Order of the
: Superior Court at No. 1529 MDA
: 2017 dated May 25, 2018,
v. : Reconsideration Denied August 3,
: 2018, Reversing the Order dated
: September 15, 2017 of the York
STEVEN WINFIELD COCHRAN, II, : County Court of Common Pleas,
: Criminal Division, at No. CP-67-CR-
Appellant : 0000361-2017, Vacating the
: Judgment of Sentence and
: Remanding for Resentencing.
:
: ARGUED: November 21, 2019
DISSENTING OPINION
JUSTICE WECHT DECIDED: January 20, 2021
I dissent. Steven Cochran’s judgment of sentence became final approximately one
month before the belated restitution hearing. Period. Accordingly, the trial court lacked
jurisdiction to impose restitution. This want of jurisdiction is nonwaivable, and it may be
raised by this Court sua sponte.1 I would reverse the Superior Court’s vacatur, and I
would strike the trial court’s belated restitution order. I would affirm the judgment of
sentence in all other respects.
Section 1106(c)(2) of the Crimes Code is clear and unambiguous: a trial court
“shall specify the amount and method of restitution” and it shall do so “[a]t the time of
sentencing.” 18 Pa.C.S. § 1106(c)(2) (emphasis added). That did not happen here. The
Majority now puts a creative spin on things, taking the view that the trial court “proceeded
1 Commonwealth v. Reid, 235 A.3d 1124, 1141-43 (Pa. 2020).
with a segmented or bifurcated sentencing hearing.” Maj. Op. at 13. But the devil is in
the details.
Here is what those details show. At Cochran’s guilty plea hearing, both the
Commonwealth and the defense acknowledged that the final restitution amount was
approximately $65,000. Before accepting Cochran’s plea, the trial court entertained a
defense request for a separate hearing to resolve some minor disputes over items listed
on the insurance form that Cochran believed belonged to him, and that were not subject
to a restitution order. Instead of imposing restitution using $65,000 as a placeholder, or
electing to defer sentencing altogether until a final amount could be confirmed,2 the trial
court inexplicably imposed a sentence of prison time and court costs with no concomitant
restitution order. No one caught this error in time to correct it via post-sentence motion
(within 10 days) or pursuant to 42 Pa.C.S. § 5505 (within 30 days). Once the latter period
elapsed, the court lacked jurisdiction to take any further action on the case. The fact that
restitution had not yet been finalized does not toll the Section 5505 clock.
More than two months passed between “the time of sentencing” and the first
restitution hearing, at which time Cochran challenged the court’s jurisdiction to impose
restitution. He did so again unsuccessfully at a second hearing several weeks later.
Cochran then filed a notice of appeal from the trial court’s untimely order; however, the
notice contained no reference to his judgment of sentence.3 This omission is of critical
importance. It is beyond dispute that Cochran’s judgment became final thirty days after
2 Notably in this regard, Pennsylvania Rule of Criminal Procedure 705.1 advises
that, “[w]hen imposing restitution, the sentencing judge should consider whether the
defendant has received notice of the intention to seek restitution prior to the hearing and
whether the defendant intends to object to the imposition of restitution. The sentencing
hearing may need to be continued as a result.” Pa.R.Crim.P. 705.1, Comment (emphasis
added).
3 See Notice of Appeal, 10/3/2017.
[J-112-2019] [MO: Mundy, J.] - 2
entry, when neither he nor the Commonwealth appealed or sought post-sentence
reconsideration, and after the trial court declined to act under Section 5505. See
Pa.R.A.P. 903(a). Accordingly, the trial court’s jurisdictional clock began to tick when
Cochran was sentenced on June 29, 2017, and lapsed after thirty days on July 31, 2017.4
The trial court lacked authority to alter substantively the judgment of sentence when it
purported to impose restitution for the first time two months later. Consequently, the
court’s order was ultra vires.
The Superior Court overlooked this point. Instead, upon correctly recognizing that
the trial court improperly ordered restitution after “the time of sentencing,” in violation of
Section 1106(c)(2)’s plain language, the appellate court reached back to the judgment of
sentence and undid that as well, essentially providing the trial court with a mulligan. To
justify the do-over, the intermediate panel looked to its own inherently inconsistent line of
cases permitting total vacatur where the invalidation of any part of a sentence upsets the
“sentencing scheme.”5 But the panel’s reliance upon this Court’s decision in
Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986), in fashioning that remedy
was misplaced. Goldhammer dealt with a defense appeal of a sentence that contained
an illegal term of imprisonment, not an untimely restitution order. Id. at 1281-82. That
decision stands for the proposition that a trial court is permitted to resentence a defendant
when a part of the initially imposed sentence is altered or vacated following a successful
challenge to a lawfully issued judgment. Id. at 1283. Today’s case is wholly
4 July 30, 2017, fell on a Sunday. See 1 Pa.C.S. § 1908 (“Whenever the last day of
any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by
the laws of this Commonwealth or of the United States, such day shall be omitted from
the computation.”).
5 Commonwealth v. Cochran, 1529 MDA 2017, 2018 WL 2404980, at *3 (Pa. Super.
May 25, 2018) (citing Commonwealth v. Deshong, 850 A.2d 712, 716-18 (Pa. Super.
2004); Commonwealth v. Mariani, 869 A.2d 484, 487 (Pa. Super. 2005); and
Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)).
[J-112-2019] [MO: Mundy, J.] - 3
distinguishable: nothing about Cochran’s sentence was illegal, and neither party appealed
from the sentencing order. Not only did the trial court act in contravention of the statute
in issuing a post-sentence restitution order; it also plainly lacked jurisdiction to alter the
judgment of sentence in any manner more than thirty days beyond the date of its
imposition.
Perhaps recognizing the trial court’s error in acting without jurisdiction, the
Commonwealth asserts that, in vacating the unlawful restitution order, the Superior Court
rendered the entire sentence illegal. This is so, the Commonwealth claims, precisely
because the trial court was required to order restitution at sentencing. For support, the
Commonwealth cites Sections 1106(a) and (c)(1) of the Crimes Code, both of which
indicate that restitution “shall” be imposed. See 18 Pa.C.S. §§ 1106(a) (“the offender
shall be sentenced to make restitution”), (c)(1) (“The court shall order full restitution.”).
The Commonwealth posits as well that Cochran sub silentio appealed his judgment of
sentence—whether he wanted to or not, and irrespective of the actual words in his notice
of appeal—because restitution is “inseparable” from the punishment prescribed for his
particular crimes.6 Collectively, these arguments constitute a radical incorporation theory,
which, taken to its logical end, would permit an appellate court to invalidate sentences in
any case involving property damage or personal injury where the trial court inadvertently
failed to order restitution, whether or not the Commonwealth has endeavored to timely
correct that error on appeal.
The Commonwealth’s strained efforts to excuse the trial court’s (and its own)
oversight are apparent. In the Commonwealth’s view, a sentence is always “illegal” if it
does not include restitution when mandated. Thus, the Superior Court will always be
faced with a Hobson’s choice in this scenario. If the court vacates an untimely restitution
6 Commonwealth’s Brief at 9, 18.
[J-112-2019] [MO: Mundy, J.] - 4
order, it ipso facto renders the sentence “illegal” because the defendant no longer will be
required to pay “full restitution” in accordance with the Crimes Code; if the court instead
affirms a sentence including an untimely restitution order, it does so “illegally” because it
lacked jurisdiction to do so. It is unclear why the costs of the trial court’s non-compliance
with Section 1106, and the Commonwealth’s failure to catch that error, should be borne
by the defendant. This is not a case where the trial court was tricked into sentencing
Cochran by fraud or deception. To the contrary, defense counsel was forthright in
advising the court at sentencing that the bona fide restitution amount was at least
$65,000, subject to some small disputes about certain personal belongings. Although
Cochran would undoubtedly receive a windfall because of the trial court’s blunder, he had
no responsibility to point out the court’s error at the plea hearing.
We would subvert the Commonwealth’s role in our criminal justice system by
placing the onus on Cochran to maximize his own punishment. It is the Commonwealth’s
“responsibility . . . to make a recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered.” 18 Pa.C.S. § 1106(c)(4)(i). It
is also the Commonwealth’s burden to identify any deviations from the statutory
requirement that “the amount and method of restitution” shall be specified “[a]t the time
of sentencing” and to bring them to the court’s attention so that they promptly are
corrected. Id. § 1106(c)(2).7 Here, the trial court simply ignored the clear commands of
Section 1106(c), and it then compounded its error by acting after it had lost jurisdiction.
7 The same would be true if the trial court had failed to impose a mandatory minimum
sentence in contravention of an applicable statute. In that instance, as here, the
Commonwealth may seek to correct the sentence by way of a post-sentence motion or a
timely appeal. See Commonwealth v. Smith, 598 A.2d 268, 270 (Pa. 1991) (finding that
a trial court’s error in failing to impose a mandatory minimum sentence for recidivist violent
offenders was non-waivable and entitled the Commonwealth to resentencing if it invoked
its right to appellate review); id. at 275 (“A defendant . . . has no expectation of finality in
his sentence until the appeal is concluded or the time period for appeal is expired.”)
(emphasis added).
[J-112-2019] [MO: Mundy, J.] - 5
The Majority dismisses these considerations as “reward[ing] gamesmanship and
ignor[ing] the accommodations that were made at [Cochran’s] request to challenge the
restitution amount.” Maj. Op. at 13 n.10. But defense counsel’s request for a ninety
minute restitution hearing—which evidently had been coordinated with the
Commonwealth ahead of time—was raised and accommodated before the
commencement of Cochran’s guilty plea colloquy. See Notes of Testimony, 6/29/2017,
at 2-3. With that in mind, one could hardly claim that Cochran surreptitiously tricked the
trial court into subsequently sentencing him in violation of the statute in order to avoid
paying restitution. Cochran plainly was willing to pay; the only lingering issue was whether
he in fact owned some of the items included in the Commonwealth’s recommendation.
While nothing prohibits a court from accepting a guilty plea on one date and continuing
the matter for a separate restitution hearing to resolve these kinds of issues, Section 1106
itself plainly forecloses bifurcating the statutorily mandated restitution order from the
remainder of a judgment of sentence. Here the trial court easily could have waited to
impose its sentence until after the completion of the restitution hearing. For whatever
reason, it did not. In its haste, the court contravened the express terms of the pertinent
sentencing provision. Today’s Majority doubles down on that error.
Despite the confusion below as to the requirements of sentencing, this much is
clear: Cochran began serving his aggregate sentence of three to twenty-three months’
incarceration on June 29, 2017, when he was taken into custody and incarcerated at the
York County Prison. That is the date on which Cochran’s appellate rights accrued. No
appeal was taken from that sentence by Cochran or by the Commonwealth. After thirty
days, the judgment became final. The trial court lost jurisdiction to modify or otherwise
act upon Cochran’s sentence, regardless of its error in neglecting the mandatory nature
[J-112-2019] [MO: Mundy, J.] - 6
of restitution. When a sentencing court errs, its mess may not be cleaned up on the back
of the defendant.
Justice Donohue joins this dissenting opinion.
[J-112-2019] [MO: Mundy, J.] - 7