Com. v. Smith, J.

• Court: Superior Court of Pennsylvania
• Decided: February 3, 2017
• Docket: 1354 MDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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