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Commonwealth of Pennsylvania v. Rohrer11/9/1998
cation order properly remedied this illegality.
We reject this argument as meritless, since it relies upon an improper and convoluted interpretation of section 1106, which defies the plain language of the restitution statute.
Section 1106 provides, in pertinent part:
"Restitution for injuries to person or property"
"(1) 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 may be sentenced to make restitution in addition to the punishment prescribed therefor."
"* * * *"
"(i) Mandatory restitution. -"
"(a) The court shall order full restitution:"
"(a) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. . . ." 18 Pa.C.S.A. § 1106(a), (c)(1)(i)(emphasis added).
Contrary to the Commonwealth's argument, the imposition of restitution for property damage is not mandatory. Aside from the possibility that such an interpretation may render section 1106 unconstitutional, the Commonwealth's interpretation of subsection (c) directly contradicts the language of the general rule contained in subsection (a), which suggests that the imposition of restitution is a matter vested within the discretion of the sentencing court. Reading the subsections together so as to give meaning to both, we conclude that the statute clearly provides for the discretionary imposition of restitution; however, once restitution is ordered, this discretion ceases, and the court is required to fully compensate the victim for his or her loss without regard to the defendant's ability to pay. See Commonwealth v. Shotwell, No. 3950 Philadelphia 1997, slip op. at 15 (Pa. Super. filed September 1, 1998)("Whenever restitution has been ordered pursuant to Section 1106, the court is required under statute to order full restitution regardless of the current financial resources of the offender.").
Thus, we reject the Commonwealth's interpretation of section 1106(c) as mandating the imposition of restitution in the instant case. We also reject its contention that the failure to file a timely motion to modify sentence is excused due to the illegality of Appellant's sentence since this argument is based upon the erroneous supposition that the failure of the sentencing court to impose restitution rendered Appellant's sentence illegal. Restitution is not mandated by section 1106(c), therefore Appellant's sentence is not illegal, and, as a result, the Commonwealth was required to file a timely post-sentence motion challenging the sentence. Its failure to do so results in a waiver of this claim regarding Appellant's sentence.
In addition, we note that the instant matter does not involve a mere clerical error, mistake, defect or inadvertence. Rather, the Commonwealth's motion to amend Appellant's sentence is a belated attempt to impose an order of restitution which it neglected to request at the original sentencing hearing. Appellant should not bear the burden of the Commonwealth's carelessness.
Therefore, because the sentencing court was without jurisdiction to entertain the Commonwealth's untimely motion to amend Appellant's sentence and subsequently enter an order imposing restitution, the order must be vacated.
Order vacated.
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