Summary
In Ortiz, the defendant entered a guilty plea to car theft, which included recommended time-served to 23 months imprisonment, plus a negotiated amount of $159 restitution.
Summary of this case from Com. v. WozniakowskiOpinion
No. 1567 MDA 2002.
Filed: September 16, 2003. Petition For Reargument Filed: September 30, 2003.
Appeal from the Order in the Court of Common Pleas of Lancaster County, Criminal Division, No. 3483-2001
BEFORE: ORIE MELVIN, TODD and TAMILIA, JJ.
¶ 1 Georgie Ortiz appeals from the September 3, 2002 Order granting the Commonwealth's motion to modify the Order of restitution imposed in conjunction with the judgment of sentence imposed as a result of appellant's plea of guilty to theft of a vehicle. The October 30, 2001 judgment of sentence required that appellant pay $159 as restitution for towing and storage of the stolen vehicle; the Commonwealth's motion sought to increase restitution an additional $1,188.21, the cost of repairs necessary as a consequence of the theft.
18 Pa.C.S.A. § 3921.
Appellant was sentenced to time-served to 23 months, fined an aggregate of $300 plus costs, and was ordered to pay, within 20 months, restitution of $159.
¶ 2 Appellant argues the trial court erred by granting the Commonwealth's motion.
[A] sentence of $159 restitution was part of the negotiated plea agreement, imposed by the court at sentencing on October 30, 2001, Defendant was not informed that the restitution amount was speculative or incomplete, and the victim was in possession of the preliminary estimate upon which the Commonwealth's June 13, 2002 Motion to Modify Restitution was based for more than three months prior to the Defendant's October 30, 2001 Guilty Plea and Sentencing.
Appellant's brief at 5.
¶ 3 As stated above, appellant was sentenced and the initial Order of restitution was imposed October 30, 2001, and appellant was directed to satisfy that Order within 20 months. Seven and one half (7½) months later, on June 13, 2002, the Commonwealth filed its motion seeking modification of the Order to reflect the costs incurred as a result of damages to the vehicle while in appellant's unlawful possession. A hearing on restitution was conducted on August 26, 2002, at which time the victim testified she took her car to the dealer for an estimate on July 20, 2001. There was much discussion and confusion, however, as to when exactly the victim provided the estimate information to the district attorney's office. N.T., 8/26/02 at 16, 18-24. It was ultimately concluded the Commonwealth was aware of the estimate as of approximately November 26, 2001. Id. at 24. The Commonwealth did not file its motion for modification, however, until almost seven months later, on June 13, 2002. Appellant contends not only was modification of the Order of restitution improper, the Commonwealth's request was untimely, resulting in the appellant entering a guilty plea he might not have otherwise entered.
¶ 4 The modification of restitution is governed by section 1106(c)(3) of the Crimes Code, Restitution for injuries to person or property, set forth below.
The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, 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(c)(3) (emphasis added).
¶ 5 Clearly the Commonwealth was authorized to request the amendment in question, and it was within the court's discretion to grant that amendment. No temporal restriction is placed on the Commonwealth's authority to request modification of restitution, and statute does not require the Commonwealth to preserve its right to request modification of the restitution award by first filing a motion to amend sentence within 30 days.
¶ 6 That being said, we must also weigh the victim's right to compensation against any prejudice suffered by appellant as a result of the Commonwealth's unexplained delay in requesting such restitution (from notification of amount requested in November, 2001, until its motion in June, 2002). In its Order and subsequent Opinion, the court explained in detail its reasons for granting the Commonwealth's motion to increase restitution to include the repair costs to the stolen vehicle. In summary, "[f]ull restitution will not be given to [victim] unless she receives compensation for the damage inflicted to the vehicle stolen by [appellant]." Trial Court Opinion, Ashworth, J., 11/18/02 at 3. We agree with this assessment and also conclude the victim should not be made to suffer financially as a result of the Commonwealth's lack of due diligence. Any arguable prejudice caused to appellant by the Commonwealth's delayed motion and the resultant increased Order of restitution is outweighed by the need for appellant to take responsibility for his criminal actions and compensate his victim.
¶ 7 Order affirmed.
¶ 8 Judge Todd files a Dissenting Opinion.
¶ 1 I respectfully dissent from the holding of my distinguished colleagues. I recognize, as does the Majority, that under 18 Pa.C.S.A. § 1106(c)(3), a court may alter or amend any order of restitution, provided the court states its reasons in support of such a change on the record. 18 Pa.C.S.A. § 1106(c)(3). Nevertheless, I believe that in the instant case, wherein a specific amount of restitution was included in a plea agreement, the Commonwealth was precluded from obtaining modification of the restitution amount.
¶ 2 The Commonwealth "has an affirmative duty to honor all promises that serve as an inducement to a defendant to plead guilty." Commonwealth v. Jackson, 546 A.2d 105, 108 (Pa.Super. 1988) (citations omitted). As our Supreme Court has explained:
[T]here is an affirmative duty on the part of the prosecutor to honor any and all promises made in exchange for a defendant's plea. Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.
Therefore, in Pennsylvania, it is well settled that "where a plea bargain has been entered into and is violated by the Commonwealth, the defendant is entitled, at the least, to the benefit of the bargain."
Commonwealth v. Zuber, 466 Pa. 453, 458-59, 353 A.2d 441, 444 (1976) (citations omitted); see also Commonwealth v. Fruehan, 557 A.2d 1093, 1094 (Pa.Super. 1989) ("If a trial court accepts a plea bargain, the defendant who has given up his constitutional right to trial by jury must be afforded the benefit of all promises made by the district attorney.").
¶ 3 Appellant's written plea agreement with the Commonwealth specifically indicates restitution in the amount of $159. (Plea Agreement, 10/30/01.) Furthermore, a review of the transcript of Appellant's guilty plea hearing indicates that the court accepted the plea agreement, and advised Appellant that it was sentencing him in accordance therewith, including payment of restitution in the amount of $159. (N.T. Hearing, 10/30/01, at 8.) Thus, by subsequently filing a motion to amend the amount of restitution, the Commonwealth breached its plea agreement. Cf. Jackson, supra (restitution, or lack thereof, was not part of the plea agreement, and counsel was not ineffective for failing to object to imposition of restitution as violating the plea agreement). Accordingly, I would vacate the trial court's order granting the Commonwealth's motion to modify the order of restitution.