Commonwealth v. Deshong

850 A.2d 712, 2004 Pa. Super. 164, 2004 Pa. Super. LEXIS 1202
CourtSuperior Court of Pennsylvania
DecidedMay 13, 2004
StatusPublished
Cited by56 cases

This text of 850 A.2d 712 (Commonwealth v. Deshong) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Deshong, 850 A.2d 712, 2004 Pa. Super. 164, 2004 Pa. Super. LEXIS 1202 (Pa. Ct. App. 2004).

Opinions

KLEIN, J.

¶ 1 Kenneth Eugene Deshong was charged with arson and insurance fraud for burning down a restaurant he owned to collect the insurance money. Deshong pled guilty to insurance fraud in a plea agreement. At the time of the plea agreement, he expressly agreed to pay restitution “as determined by the Fulton County Probation Department, subject to a hearing if requested.” The Commonwealth now appeals from the trial court’s order refusing to set the amount of restitution almost two years later after Deshong’s sentencing.

¶ 2 At the time of sentencing, the trial court was still not able to determine whom he owed or how much, so the court entered an open-ended restitution order: “[RJesti-tution shall be made in the amount of $TBD to person or entities to be determined as determined to be due and payable by the Fulton County Probation Department.” The trial court also imposed 48 months’ probation and required him to pay costs. Fourteen months after sentencing, the amount of restitution still had not been determined. At the Probation Department’s request, the trial court scheduled a determination hearing.

¶ 3 Between sentencing and the determination hearing, we decided Commonwealth v. Dinoia, 801 A.2d 1254 (Pa.Super.2002), which pointed out that under the amended restitution statute, restitution must be determined at the time of sentencing if the restitution is imposed as a direct sentence. The Commonwealth requested that the trial court set the amount of restitution. However, Deshong opposed this request, arguing that because the specifics of restitution had not been set at sentencing, the restitution was illegal. The trial court [714]*714agreed and refused to set the amount of restitution. The Commonwealth has appealed from this order,1 asserting four issues: 2

1. Deshong validly waived his statutory rights to have restitution determined by the court at sentencing.
2. The trial court improperly extended Dinoia to the express waiver at issue in this case.
3. The trial court erred in applying Dinoia, which interpreted 18 Pa. C.S.A. § 1106, when the law applicable to this case is 42 Pa.C.S.A. § 9754.
4. Alternatively, even if the order was illegal, the trial court should have entered an order setting restitution.

¶ 4 The trial judge in this case intended restitution as a direct sentence, and 18 Pa.C.S.A. § 1106 requires that restitution be set at sentencing. We, therefore agree with the trial judge that his hands were tied and he was not permitted to set the amount of restitution later when petitioned by the Commonwealth. However, because an illegal direct sentence of restitution was ordered at sentencing, the entire sentencing scheme was upset and.we must vacate the sentence and remand for resentencing.

¶ 5 Unlike the circumstances in Dinoia, here the Commonwealth has specifically argued that removing the restitution order upsets the trial judge’s sentencing scheme. When a disposition by an appellate court alters the sentencing scheme, the entire sentence should be vacated and the matter remanded for resen-tencing. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), Commonwealth v. Farone, 808 A.2d 580 (Pa.Super.2002). Here, the trial court imposed probation and restitution, when the Sentencing Guidelines called for a minimum of three months’ incarceration. Under these circumstances, we are not confident that the trial court would have settled on probation if it had not also imposed restitution. Therefore, we agree with the Commonwealth that the sentencing scheme is upset. Although we agree with the trial court’s result, we will vacate the sentence and remand for resentencing.

¶ 6 A full discussion follows.

¶ 7 The text of the plea agreement is key to our decision. As part of the plea agreement, Deshong agreed to pay restitution but agreed that the probation department would set the specifics:

Defendant further agrees to make restitution on charges to which he pleads guilty (as determined by the Fulton County Probation Department, subject to a hearing if requested)....

¶ 8 At sentencing, on a two-page form order, the trial judge ordered 48 months of probation and restitution. On the first page, there are four paragraphs for a variety of different sentences. The first three are for other sentences such as imprisonment or fines and were not used. The fourth paragraph was pre-printed and contained blank fines. As edited by the trial court the fourth paragraph reads:

April 10, 2001 20 [sic ]3 the defendant is placed on Probation for a period of 48 months, upon the conditions that the defendant shall pay the costs of proseeu[715]*715tion, pay the sum of $500.00 to the use of the County of Franklin.

¶ 9 Following the fourth paragraph are seven indented paragraphs that list different combinations of probation conditions. The seventh paragraph is simply blank lines, apparently intended for the court to impose a unique condition. Each of these seven pai-agraphs has a check box. The second and seventh paragraphs are checked off and initialed (presumably by the trial judge). They read:

The defendant is placed under the supervision of the Fulton County Probation Department and subject to the Rules and Special Conditions for Probation-Parole approved by the Court and authorized to be completed by the Probation Department, and any special condition of probation imposed by the supervision staff of the Department.
Defendant shall complete 200 hours of Community Service through a Volunteer Fire Company.

¶ 10 At the bottom of the first page is the judge’s signature, below which is a handwritten notation: “Page 1 of 2.”

¶ 11 The second page of the sentencing form lists the caption at the top, has a blank for the date, an introductory sentence, and then continues the order. There are 15 paragraphs with check boxes, two of which are checked and initialed. Reading the introductory sentence together with the checked paragraphs, the second page reads:

April 10, 2001, it is further ordered:
That restitution shall be made in the amount of $TBD to person or entities to be determined as determined to be due and payable by the Fulton County Probation Department.
That the defendant shall pay $25.00 per month supervision fee under the provisions of Act 35.

The second page ends with the judge’s signature and a notation “Page 2 of 2.”

¶ 12 Reading the sentencing order in its totality, we think the restitution was a direct sentence rather than a condition of probation. The conditions of probation are on the first page. Although the conditions do not specifically include restitution, the trial court could have easily written the restitution directive on the blank lines in the conditions of probation section. Instead, he wrote it on the blank lines on the second page. Page 2, where restitution was ordered, contains a check-list for other orders of the court.

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Cite This Page — Counsel Stack

Bluebook (online)
850 A.2d 712, 2004 Pa. Super. 164, 2004 Pa. Super. LEXIS 1202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-deshong-pasuperct-2004.