Com. v. Bonczewski, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN MICHAEL BONCZEWSKI
Appellant No. 854 MDA 2014
Appeal from the Judgment of Sentence February 21, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000375-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 26, 2015
Appellant, Benjamin M. Bonczewski, appeals from the judgment of
sentence entered in the Luzerne County Court of Common pleas, following
his guilty plea to one (1) count of receiving stolen property.1 We vacate and
remand for resentencing.
The relevant facts and procedural history of this case are as follows.
On October 9, 2012, John Roke contacted the Newport Township Police
Department to report that his coin collection had been stolen from his home.
In early November 2012, Appellant sold some of Mr. Roke’s coins to Gold
Rush Buyers.
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1
18 Pa.C.S.A. § 3925.
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On July 31, 2013, Appellant pled guilty to one (1) count of receiving
stolen property. Appellant’s plea agreement stated, “[Appellant] to pay
restitution to Roke $30,000.”2 (Plea Agreement; R.R. at 11a). An asterisk
was placed next to this statement, however, to indicate that the restitution
amount was “to be determined at hearing.” Id. At the opening of the guilty
plea hearing, the following exchange took place:
[COMMONWEALTH]: Your Honor, [Appellant] shall
plead guilty to count one, receiving stolen property. That
is currently graded as a felony of the third degree, seven
years, $15,000 max, [Appellant] to have no contact with
the victim in this case, John Roke, R-O-K-E, [Appellant] to
pay restitution to Mr. Roke in the amount of $30,000.
Your Honor, the [C]ommonwealth would also request, after
speaking with [Appellant], a restitution hearing and a
sentencing date to determine the actual value and what
he’s liable for.
THE COURT: Okay.
(N.T. Guilty Plea Hearing, 7/31/13, at 2-3). In its recitation of the facts, the
Commonwealth stated that the victim’s coin collection had a value “in excess
of $10,000.00.” Id. at 7.
The court sentenced Appellant on February 21, 2014, to the state
intermediate punishment program for a period of twenty-four (24) months.
As part of the sentence, the court also ordered Appellant to have no contact
with Mr. Roke, or Mr. Roke’ s mother, and to pay restitution to Mr. Roke in
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2
The plea agreement also provided that Appellant was to have no contact
with John Roke.
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the amount of $30,000.00. On Monday, March 3, 2014, Appellant timely
filed a motion to modify sentence, which the court denied on March 6, 2014.
Appellant filed a timely notice of appeal on Monday, April 7, 2014. On April
9, 2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal within twenty-one (21) days, pursuant to Pa.R.A.P.
1925(b). Appellant filed a Rule 1925(b) statement on May 22, 2014.3
Appellant raises a single issue for our review:
WHETHER THE TRIAL COURT ERRED IN ORDERING
[APPELLANT] TO PAY RESTITUTION FOR PROPERTY WHICH
THE COMMONWEALTH HAS NOT PROVEN WAS EITHER
STOLEN OR RECEIVED BY HIM?
(Appellant’s Brief at 4).
In his sole issue, Appellant argues the Commonwealth presented no
evidence that Appellant stole or received stolen property equal to the
amount of restitution he was ordered to pay as part of his sentence.
Specifically, Appellant contends he did not plead guilty to the theft of the
coin collection but only to receiving some of the stolen coins. Appellant did
not agree to pay restitution in full for the entire coin collection or even agree
in his plea agreement to a specific amount of restitution. Appellant asserts
he agreed that the court would determine at a restitution hearing the actual
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3
We observe Appellant’s Rule 1925(b) statement appears to be untimely.
Nevertheless, the trial court issued a Rule 1925(a) opinion and addressed
Appellant’s complaint. See generally Commonwealth v. Burton, 973
A.2d 428 (Pa.Super. 2008) (en banc) (addressing post-amendment Rule
1925 and options regarding Rule 1925(b) statement in criminal context).
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value of the coins he received. According to Appellant, no hearing took
place at which the Commonwealth presented any evidence of the value of
the stolen goods attributable to Appellant’s actions. Appellant claims the
amount of restitution the court ordered him to pay was purely speculative
and unsupported by the record. On this record, Appellant concludes that
part of his sentence ordering him to pay $30,000.00 in restitution is illegal.
We agree.
Issues concerning a court’s statutory authority to impose restitution
implicate the legality of the sentence. Commonwealth v. Smith, 956 A.2d
1029 (Pa.Super. 2008) (en banc), appeal denied, 605 Pa. 684, 989 A.2d 917(2010). “Issues relating to the legality of a sentence are questions of law….”
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal
denied, 598 Pa. 755, 955 A.2d 356 (2008). 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.” Id. “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction. An
illegal sentence must be vacated….” Commonwealth v. Pombo, 26 A.3d
1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers, 25
A.3d 349, 352 (Pa.Super. 2011), appeal denied, 616 Pa. 666, 51 A.3d 837(2012)). In criminal proceedings, an order of restitution is not an award of
damages; it is a sentence. Commonwealth v. Atanasio, 997 A.2d 1181,
1182-83 (Pa.Super. 2010).
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An appeal from an order of restitution based upon a claim
that a restitution order is unsupported by the record
challenges the legality, rather than the discretionary
aspects, of sentencing. The determination as to whether
the trial court imposed an illegal sentence is a question of
law; our standard of review in cases dealing with questions
of law is plenary.
Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa.Super. 2012)
(internal citations and quotation marks omitted). Compare
Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa.Super. 2007) (noting
some challenges to amount of restitution can involve discretionary aspects
of sentencing).
Section 1106 of the Crimes Code governs orders of restitution, in
pertinent part, as follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime
wherein property has been stolen, converted or
otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime, or wherein the
victim 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. In determining
the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by
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the victim, the victim’s request for restitution as
presented to the district attorney in accordance with
paragraph (4) and such other matters as it deems
appropriate.
* * *
18 Pa.C.S.A § 1106. Section 1106(c)(2) includes the requirement that if
restitution is ordered, the amount and method of restitution must be
“determined at the time of sentencing….” Commonwealth v. Dinoia,
801 A.2d 1254, 1257 (Pa.Super. 2002) (emphasis in original).
It also placed upon the Commonwealth the requirement
that it provide the court with its recommendation of the
restitution amount at or prior to the time of sentencing.
Although the statute provides for amendment or
modification of restitution “at any time,” 18 Pa.C.S.A. §
1106(c)(3), the modification refers to an order “made
pursuant to paragraph (2)….” Thus, 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. (internal citations and footnote omitted). In any event,
Because restitution is a sentence, the amount ordered
must be supported by the record; it may not be
speculative or excessive. In a case of theft by receiving
stolen property, a reviewing court will not countenance a
sentence provision which requires restitution for property
which the Commonwealth has not proven was either stolen
or received by the [defendant].
Commonwealth v. Reed, 543 A.2d 587, 589 (Pa.Super. 1988) (internal
citations and quotation marks omitted) (holding defendant convicted of
receiving stolen property cannot be ordered to make restitution for more
than value of property he received; evidence must show causal connection
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between loss sustained and defendant’s role in receiving stolen property;
restitution cannot exceed loss caused by defendant’s conduct).
Instantly, Appellant pled guilty on July 31, 2013, to receiving stolen
property. Although the plea agreement indicated Appellant was to pay
restitution in the amount of $30,000.00 to the owner of the stolen property,
the agreement also stated that the actual amount of restitution would be
determined at a hearing. Likewise, at the guilty plea hearing, the
Commonwealth’s attorney requested “a restitution hearing and a sentencing
date to determine the actual value and what [Appellant is] liable for.” (N.T.
Guilty Plea Hearing at 2-3). At the conclusion of the plea hearing, the court
set a sentencing date and stated, “At that time[,] we’ll have your hearing
regarding the value of the property.” Id. at 8. Thus, the plea agreement as
to $30,000.00 in restitution was tentative at best and expressly conditional
on the court’s findings at a full restitution hearing. A review of the certified
record, however, reveals the court failed to hold a full restitution hearing
before sentencing. At no time prior to sentencing did the Commonwealth
present any evidence that the value of the stolen coins received by Appellant
was anywhere near $30,000.00.4 Nevertheless, as part of Appellant’s
sentence the court ordered Appellant to pay $30,000.00 in restitution to Mr.
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4
In its recitation of facts at the guilty plea hearing, the Commonwealth’s
attorney merely stated that the value of the entire coin collection was “in
excess of” $10,000.00. (N.T. Guilty Plea Hearing at 7).
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Roke. Appellant objected to this restitution in a timely post-sentence motion
and on appeal.5
We conclude the record in its present state does not support the
restitution order for $30,000.00 and, therefore, that part of the sentence is
illegal. See Stradley, supra; Reed, supra. Based on the foregoing, we
vacate Appellant’s judgment of sentence and remand for resentencing
following a full restitution hearing. See Commonwealth v. Deshong, 850
A.2d 712 (Pa.Super. 2004) (stating trial court’s sentencing scheme is upset
when appellate court rules restitution order imposed as part of sentence is
illegal; proper remedy is to vacate entire sentence and remand for
resentencing).
Judgment of sentence vacated; case remanded for proper restitution
hearing and resentencing. Jurisdiction is relinquished.
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5
To the extent the trial court and Commonwealth suggest Appellant waived
his restitution claim for failure to object at sentencing (suggesting the issue
implicates the discretionary aspects of sentencing), we observe Appellant
properly preserved his issue in a post-sentence motion, in his Rule 1925(b)
statement, and on appeal. In any event, Appellant’s issue as argued goes to
the legality of his sentence, which he could raise for the first time on appeal,
or this Court could even raise it sua sponte. See Commonwealth v.
Edrington, 780 A.2d 721 (Pa.Super. 2001) (assuming proper jurisdiction,
Appellant can raise issue involving legality of sentence for first time on
appeal or reviewing Court can raise it sua sponte). Therefore, we reject the
trial court’s and the Commonwealth’s waiver analysis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
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