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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
ROBERT BRUCE SUOJANEN,
Appellant
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
:
:
:
:
:
:
: No. 2144 MDA 2012
Appeal from the Judgment of Sentence November 6, 2012,
Court of Common Pleas, Lancaster County,
Criminal Division at No. CP-36-CR-0004634-2011
BEFORE: DONOHUE, WECHT and COLVILLE*, JJ.
MEMORANDUM BY DONOHUE, J.:
FILED AUGUST 13, 2013
Robert Bruce Suojanen (“Suojanen”) appeals from the judgment of
sentence entered following his convictions of driving under the influence of
alcohol, driving on a suspended license, causing damage to unattended
property and disorderly conduct.
Suojanen specifically appeals the trial
court’s modification of the amount of restitution ordered as part of his
sentence. Following our review, we affirm.
On April 9, 2012, Suojanen entered an open guilty plea to the crimes
listed above. These convictions arose in connection with an incident in which
Suojanen, while under the influence of alcohol, sideswiped a vehicle, fled the
scene of the accident, and “acted aggressively” toward police officers that
located him and attempted to place him in custody, resulting in injury to one
officer. Trial Court Opinion, 1/31/13, at 1-2. At the time of the plea, the
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth indicated that it was seeking restitution in the amount of
$18,644.10, a large portion of which ($11,683.13) was for lost wages paid
by an insurance company to the officer that Suojanen injured. N.T., 4/9/12,
at 2.
Suojanen disputed the inclusion of lost wages in the amount of
restitution, arguing that it was not something that could be included as part
of restitution.
Id. at 8.
This issue was not resolved and sentencing was
postponed until a later date. Id.
The parties reconvened on July 30, 2012, at which time the trial court
indicated that both parties and the trial court were still unclear as to whether
the injured officer’s lost wages could be included in a sentence of restitution.
N.T., 7/30/12, at 4.
The trial court excluded the lost wages and set the
amount of restitution at $6,980.97 with the understanding that “should lost
wages be permitted, the amount will be modified within 30 days … .” Id. at
7.
It was not until October 5, 2012 (67 days after the restitution order
was entered) that the Commonwealth filed a motion seeking to modify
restitution. In its motion, the Commonwealth indicated that it had located
precedential
authority
(in
the
nature
of
this
Court’s
decision
in
Commonwealth v. Smith, 699 A.2d 1303 (Pa. Super. 1997)) to support
the inclusion of the officer’s lost wages in an order of restitution.
Presumably by way of explaining its failure to file this motion within 30 days
of the sentencing hearing, the Commonwealth stated that it had not been
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able to discuss the issue with Suojanen’s counsel prior to October 3, 2012.
Motion to Modify Restitution, 10/5/12, at ¶ 3. After a conference with both
parties, during which Suojanen conceded that in light of Smith, the inclusion
of lost wages paid by an insurer to the victim was appropriate, the trial court
granted the Commonwealth’s motion and modified the amount of restitution
owed to $18,644.10. Trial Court Order, 11/6/12, at 1.
This timely appeal followed, in which Suojanen argues only that the
trial court was without jurisdiction to modify the amount of restitution
beyond the period the trial court indicated it would entertain a modification
request (specifically, 30 days after the entry of the judgment of sentence).
See Appellant’s Brief at 5, 14-15. As this issue calls in to question the trial
court’s authority to impose a given sentence, it is a challenge to the legality
of the sentence. See Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa.
Super. 2010) (holding that a challenge to the authority of a court to impose
a sentence questions the legality of the sentence).
Accordingly, our
standard of review for such a claim is plenary, and it is limited to
determining whether the trial court committed an error of law. Id.
Section 1106 of the Crimes Code governs sentences of restitution, and
provides, in relevant part, as follows:
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
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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).
In Commonwealth v. Dietrich, 601 Pa. 58, 970 A.2d 1131 (2009),
our Supreme Court held that a trial court erred in modifying a restitution
order more than 30 days after entry only because it did so without stating
the reasons for modification.
In Dietrich, as in the present case, at the
time of sentencing there was a dispute regarding a legal issue as to what
amounts could be included in the restitution order. The trial court entered
an initial order of restitution, but indicated that “[t]here’s a possibility” that
it would modify the amount following the parties’ submission of memoranda
regarding the disputed legal issue.
Id. at 59-60, 970 A.2d at 1132.
Six
months later, the trial court amended the restitution order but did not
explain its reasons for the amendment.
Dietrich appealed, and this Court
vacated the judgment of sentence, concluding that in order to modify a
restitution
order
pursuant
to
Section
1106(c)(3),
the
reasons
for
modification must be “something that was not known and could not have
been reasonably ascertained at the time the original order was entered” and
that “[i]f there was a legal issue … it should have been resolved prior to
sentencing or sentencing deferred.” Id. at 61, 970 A.2d at 1133.
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The Supreme Court disagreed with this rationale, stating the following:
[W]e reject the Superior Court's conclusion the
reasons to support a modification must ‘embody
something that was not known and could not have
been reasonably ascertained at the time the original
order was entered.’ We have emphasized on
numerous occasions “ ‘[w]hen the words of a statute
are clear and free from all ambiguity, they are
presumed to be the best indication of legislative
intent.’ ” Chanceford Aviation Properties, L.L.P.
v. Chanceford Township Board of Supervisors,
592 Pa. 100, 923 A.2d 1099, 1104 (2007) (quoting
Hannaberry HVAC v. Workers' Compensation
Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d
524, 531 (2003).) The plain language of §
1106(c)(3) provides courts with broad authority to
modify restitution amounts at any time if the court
states reasons for doing so as a matter of record. 18
Pa.C.S. § 1106(c)(3) (emphasis added). There is no
statutory requirement the reasons for modification
be undiscoverable at the time of sentencing. Section
1106(c)(3)'s broad language indicates a legislative
intent that courts have jurisdiction to modify
restitution orders at any time without regard to when
information
should
have
been
present
for
consideration. Id.; cf. 42 Pa.C.S. § 5505.
Id. at 65-66, 970 A.2d at 1135.
Thus, pursuant to Section 1106(c)(6), the trial court had the authority
to modify restitution at any time, so long as it stated it reasons and
conclusions for doing so, even where the reason was that the District
Attorney was ignorant of the law at the time of the original sentencing
proceeding. Presently, the trial court stated its reasons and conclusions for
granting the modification of restitution in its order; namely, that the amount
of $18,644.10 in restitution sought by the Commonwealth was known at the
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time of sentencing; the trial court did not award the portion of that amount
attributable to the injured officer’s lost wages at that time because Suojanen
questioned whether this amount was properly included as restitution; the
trial court directed both parties “to research the issue of lost wages and
meet together to resolve the legal issues;” and any delay in the modification
was the fault of defense counsel for not following the trial court’s directive to
meet with the Commonwealth in a timely manner.
Trial Court Order,
11/6/12, at 1-2.
We note the trial court’s statement that it ordered both parties to
research the issue and meet in an effort to resolve the issue together. 1 We
find this directive problematic, as it shifted the burden of establishing
entitlement to restitution from the Commonwealth to Suojanen.
See
Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010) (“It
is the Commonwealth's burden of proving its entitlement to restitution.”).
Nonetheless, despite the wrongful burden shifting, pursuant to Dietrich, the
trial court had the authority to modify the restitution order at any time so
long as it stated its reasons for the modification.
As indicated above, the
trial court did state its reasons for the modification in its order.
1
We
We cannot discern when the trial court ordered the parties research and to
attempt to resolve this issue together, as this directive cannot be found in
the certified record on appeal.
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therefore find no error of law by the trial court and therefore no merit to
Suojanen’s claim.
Judgment of sentence affirmed.
Judgment Entered.
Deputy Prothonotary
Date: 8/13/2013
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