Mandatory Restitution Procedures : Case Spotlight on Com. v. Dietrich
By Michael Piecuch
Executive Director, PA District Attorneys Association
In a landmark restitution case issued earlier this year, the Pennsylvania Supreme Court provided guidance on several outstanding issues regarding the application of the Crimes Code’s mandatory restitution provisions.
In Com. v. Dietrich, 970 A.2d 1131 (Pa. 2009), the defendant had been convicted for various crimes in Dauphin County related to a crash caused by his drunk driving. The crash seriously injured the driver of the other vehicle and killed a passenger (the father of the driver).
The sentencing judge ordered the appellant to pay $10,000 restitution to both the driver and the passenger’s estate. At the sentencing hearing, the judge explicitly noted that the restitution component of the sentencing might require future amendment. Around six months later, the judge did in fact amend the restitution order. Without giving any explanation on the record, he increased the driver’s amount to $111,000 and lowered the passenger’s to around $4,000.
On appeal to the Superior Court, the defendant claimed that the sentencing judge had violated the provisions of 18 Pa.C.S. § 1106(c)(2). This portion of the mandatory restitution statute dictates that if restitution is imposed as a direct component of the sentencing (as opposed to being imposed as a condition of probation/parole), “the amount and manner of restitution” must be specified “at the time of sentencing.” 18 Pa.C.S. § 1106(c)(2).
The Superior Court agreed in an unpublished memorandum opinion. The court ruled that by making the original restitution order subject to subsequent modification, the sentencing judge had violated the specificity requirements of § 1106(c)(2). In holding the restitution order and its amendment invalid, the Superior Court vacated the judgment of sentence and remanded the case for resentencing.
The defendant appealed to the Supreme Court arguing that the appropriate remedy for the illegal restitution order was not to remand for resentencing (which would allow the judge the freedom to impose the new restitution amounts), but to reinstate the original restitution order (which would result in a substantial windfall to the defendant).
The Supreme Court reversed the Superior Court’s decision, but not for the reasons advanced by the defendant. Com. v. Dietrich, 970 A.2d 1131 (Pa. 2009). In an opinion written by Justice J. Michael Eakin, the Court cited with approval Com. v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002) and gave a detailed interpretation of 18 Pa.C.S. § 1106. Even though the Commonwealth did not challenge the defendant’s claim that the original restitution order was illegal (arguing the sentencing court had the inherent authority to correct patent errors), the Supreme Court upheld its validity.
The Court approved with Superior Court jurisprudence that a sentencing judge cannot postpone the determination and imposition of a restitution amount until after sentencing. Unlike the facts in those cases, however, the Court ruled that the sentencing judge in Dietrich had satisfied the mandate of §1106(c)(2) by specifically ordering the defendant to pay $10,000 restitution each to both victims at the time of sentencing. The judge’s acknowledgement at sentencing that these amounts may likely be modified sometime in the future did not invalidate the original restitution order.
The Court then addressed the modification order, beginning with the timing issue. As a general rule, a court may only modify or rescind an order within 30 days from its entry. 42 Pa.C.S. § 5505. The Court recognized that since full restitution amounts are often undeterminable at the time of sentencing, an exception exists for restitution orders: sentencing courts broad authority to amend restitutions “at any time” provided that the reasons for doing so are put on the record. 18 Pa.C.S. § 1106(c)(3). The Court noted that there is no requirement that those reasons be undiscoverable at the time of sentencing.
Thus, the passage of even six months’ time was not grounds to invalidate the modification of the restitution order. The Court took issue, however, with the judge’s failure to put on the record any reasons for the modification. In order to amend a restitution order outside the 30 days provided by § 5505, a judge must state the reasons for doing so pursuant to § 1106(c)(3). Citing the lack of any reasons whatsoever being given, the Court ruled the modification order to be invalid.
Accordingly, the Court reinstated the original restitution order, vacated the modification order, and remanded for further proceedings in compliance with § 1106(c)(3); i.e., to modify the restitution order with the reasons being stated for the record.
The dissent, written by Justice Thomas Saylor, criticized the majority’s acceptance of “placeholder” restitution amounts to defer making firm restitution determinations at the time of sentencing.
Up until 2002, it had been a common sentencing practice in many counties for judges to impose a general restitution order that left the actual amount to be determined at a later date. With the Dinoia decision, the Superior Court began enforcing the provisions of § 1106(c)(2), which had been largely overlooked since their enactment in 1998.
Unfortunately for the victims in the Dinoia case, the Superior Court remedied the § 1106 violation in that case by invalidating the restitution order while failing to remand the case to correct the violation. Subsequent decisions by the Superior Court, and now the Dietrich decision itself, make clear that the proper remedy for a § 1106(c)(2) violation is to invalidate the illegal restitution or modification order and then remand to the sentencing judge in order to issue a new order that complies with § 1106.
Prosecutors should take particular note that § 1106 requires the Commonwealth “to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered.” 18 Pa. C.S. § 1106(c)(4)(i). This recommendation is to be based on information provided by the victim. Even in the absence of information from the victim, prosecutors must still make a recommendation “based on other available information.” 18 Pa. C.S. § 1106(c)(4)(ii).
Restitution may be imposed as part of a sentence “only for losses that are a direct result of the crime.” Com. v. Harner, 617 A.2d 702, 707 (Pa. 1992). There must be a direct nexus between that restitution amount and the harm caused by the defendant’s criminal conduct. This nexus is relaxed, however, when restitution is included as a condition of probation or parole under 18 Pa.C.S. § 1106(b) or 42 Pa.C.S. § 9754(c)(8). Ibid. Since sentencing courts have wide latitude to create probationary conditions “designed to rehabilitate the defendant and to provide some measure of redress to the victim,” these conditions may include restitution that is indirectly caused by the defendant. Com. v. Kelly, 836 A.2d 931, 934 (Pa. Super. 2003).
Note that when restitution is imposed as a condition of probation, the defendant’s ability to pay must be considered. 42 Pa.C.S. § 9754(c)(8). When determining restitution imposed as part of a direct sentence, however, the defendant’s ability to pay is not a factor 18 Pa. C.S. § 1106 (c)(2)(i-iv). “Only upon default is [a] defendant’s ability to pay to be considered.” Com. v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998) (citing 42 Pa. C.S. § 9730(b)).
In terms of collection, “an order of restitution is enforceable until paid.” Com. v. James, 771 A.2d 33, 35 (Pa. Super. 2001). See also Com. v. Ralston, 800 A.2d 1007 (Pa. Commw. 2002). Where a sentencing court orders restitution as part of the defendant’s sentence, the court has the continuing authority to monitor and enforce it. Ibid. That authority “may exceed the maximum term of imprisonment to which the offender could have been sentenced for the crimes of which he was convicted or the maximum term of confinement to which the offender was committed.” 42 Pa.C.S. § 9728(c). Even after expiration or completion of any other sentencing components (such as incarceration, parole, or probation), the defendant’s sentence is not fully executed until mandatorily imposed restitution has also been paid or otherwise satisfied. See James, Ralston.