*1 583 prior record. Without ment defendant’s evidence it any right may Commonwealth abandoned question, raising such this case testimony have had to use appellant elected its had question admissibility after in his own defense. testify I erred in would hold trial court Accordingly, of, much evi- admitting, less considering admissibility record and would vacate appellant’s judgment dence of remand the case for new trial. sentence and 197 504 A.2d Pennsylvania COMMONWEALTH v. MOURAR,
Barry Appellant.1 Superior Pennsylvania. Court of
Argued 1984. Dec.
Filed Jan. 1986. Kuphal, case to Commonwealth v. companion 1. This case is a Bates, v. (1985); Commonwealth Pa.Super. A.2d Sessoms, 1983; Philadel- Philadelphia phia 1983. *4 Norristown, Honig, appellant. J. William Chester, Carroll, III, District Deputy W. West Joseph Com., Attorney, appellee. CAVANAUGH, SPAETH, Judge,
Before President MONTEMURO, WICKERSHAM, ROWLEY, OLSZEWSKI, JOHNSON, BECK, TAMILIA and JJ.
PER CURIAM: plea to four guilty Mourar entered a Appellant Barry Substance, De- Drug, of the Controlled criminal violations Three of Act, seq. 35 Pa.S. et Cosmetic 780-101 vice and § after the effective date the four offenses occurred Guidelines, seq. et 204 Pa.Code 303 Sentencing on 1983. For October Appellant sentenced 13, 1982, appel- on delivering July cocaine first offense fourteen months period to a seven to lant was sentenced the second count sentencing on imprisonment. When *5 August 27, 1982, the con- delivering judge cocaine on trial first offense to be a conviction and added prior sidered the Thus, appellant’s prior appel- two record points score.. lant ten to months on the second twenty was sentenced to then counted as convic- prior count. Both offenses were purposes sentencing charge tions for on the third 19,1982, appellant cocaine November delivering on months thirty-two imprisonment. sentenced to sixteen to possession final with intent to deliver On the offense 3, 1982, score appellant’s prior on December record cocaine months. twenty-two forty-two in a sentence of resulted for a sentence consecutively, All were to run total sentences Appellant nine years imprisonment. of four and one-half to $6,500.00, the ordered to make restitution was also make agents undercover spent amount Government charges to the purchases ultimately filing that led against appellant. First, on contends appeal. raises issues he
Appellant
five
illegal
sentencing guide
that his sentence is
because
Kuphal,
In 347 Pa.Su
illegal.
lines are
(1985),
sentencing
held that
per.
(b) sentences for imposing consecutive convic- When transactions, of arising separate prior tions out record computed independently score shall for each convic- be tion. is prior by record score determined 303.7 which § of to the
provides points for various numbers be added score on the of crime of prior depending type prior record (g) the defendant was which convicted. Subsection prior 303.7 defines a conviction as § in in guilty a case which a verdict of has been entered has for an imposed record and sentence been offense offense, to the date of the current prior which occurred appeal prior taken on the offense. notwithstanding any case, sentences, imposing In the instant when consecutive 303.7 to mean that multi- interpreted the trial court when § occasion, sentences are on the same those ple imposed cumulatively prior first could be used as of- pronounced this purposes. fenses for enhancement We find construc- tion, escalation of inimical punishment, and the resultant justice to the of substantial and to the mani- concept both provisions generally. fest intention of recidivist rules of statutory The resolution of the issue lies contention that the trial interpretation. Despite appellee’s clearly complied “prior with the definition convic- sentences, imposing appellant’s 303.7 we tion” when § Act, 1 application Statutory find that of the Construction 1928(b)(1), a far different operates produce Pa.C.S. § result, provision penal interpreted since the is and must be vacuum; Further, does not exist in a it 303.7 strictly. § guidelines read in with the other conjunction must be give so as to authorizing promulgation their the statute interpreted 1922. It also must be effect to all. Pa.C.S. § existing Pennsylvania law. light in Penn- criminal statute A of the habitual history brief is Sentencing Guidelines adoption sylvania prior ago as noting long that at least as begin by instructive. We 1860, legislation proper disposition which addressed the as persistent language imprecise offenders contained guidelines,2 some statutes regulatory that of as have (and mandate for penal multiple which sanctions violations authority).3 case way Contrary which have found their into 31, 1860, P.L. 18 P.S. 3731. § 2. Act Mar. § any person any than murder of the If convicted of offense other degree, punishment prescribed by Code which the second for labor, shall, solitary separate imprisonment confinement at conviction, offense, guilty any such be of a similar after directed, shall, punishment he said either offense case, which conviction, undergo upon imprisonment sentenced labor, kept exceeding period at double the whole of time and be may prescribed penal of this commonwealth be laws he the crime of which is convicted. 29, 1929, April Act P.L. 19 P.S. 921. SUBSEQUENT CONVICTION ON SECOND OR SENTENCE *7 years upon subsequent five conviction within § 921. Sentence who, Any person having or after been convicted within without crime, crime, attempt of the or to commit this Commonwealth treason, murder, manslaughter, sodomy, buggery, voluntary bur- of steal, arson, entering robbery, mayhem, kidnap- glary, intent with incest, narcotics, abortion, perjury, pandering, any or ping, sale of through attempted to be committed the instru- offense committed or deadly weapon gunpowder mentality or or of with the aid of a or fluid, may, explosive upon conviction or corrosive other substance any within five of crimes for a second offense committed of such offense, imprisonment years for a prior be sentenced to after the twice of which shall not be more than term the maximum crime longest prescribed upon a first conviction for the term question. 1108, 24, 1924, 872, 18 P.S. 5108. § Act of June P.L. subsequent Second and offenses § 5108. subsequent offenses Second and (a) having within or without this after been convicted Whoever crime, crime, attempt of or to commit Commonwealth of treason, murder, burgla- voluntary manslaughter, sodomy, buggery, arson, steal, mayhem, kidnap- entering robbery, ry, intent to with incest, abortion, narcotics, any perjury, pandering, or ping, of sale through attempted the instru- or to be committed offense committed deadly weapon gunpowder mentality or or of with the aid of a or fluid, may, upon explosive conviction substance or corrosive other committed within five any of for a second offense such crimes offense, subsequent (5) offense committed years first or after the offense, impris- (5) prior years after the be sentenced within five term, more than of which shall not be for a the maximum onment prescribed upon of the longest a first conviction term twice question. crime 1901, 208) 29, (No. May P.L. 327 7§ 3. Act of [fine], penalty In addition to every person the above ... who any provisions violates of the guilty act shall also be of a misdemeanor; thereof, upon punished and conviction shall be for dollars, by the first offense a of not less fine than 100 nor more than dollars, by jail imprisonment county or in the for not more than months, court; three or both at the upon discretion of and offense, any subsequent punished conviction of by shall be a fine of dollars, 1,000 dollars, not less than 500 nor more by than and imprisonment county jail in the for not less than six months nor more than twelve months. 22, 1867, 4, Act of Pamph. Mar. Sect. p. L.41. 2 Br.Purd. act, any person, Section 4. spirituous passage If after the of this shall sell ..., liquors having and vinous without obtained a license shall, fined, person ... such on conviction ... be for the first offense, any dollars, sum not less than than 50 nor more second, any offense, subsequent for the person such shall be dollars, fined not less than 100 and in the discretion of the said court, imprisoned county jail days, not less than 30 nor days. more than 90 May 5, 1937, ofAct 1933 P.L. as amended of June Act P.L. 9(a) Any person Section violating any provisions ... of this act, shall, guilty ... of a misdemeanor [be and] the first or offense, upon second conviction ... be thereof sentenced [shall] pay a fine ... or in undergo default such fine and costs ... an imprisonment offense, county jail in the a subsequent ... and for third or misdemeanor, guilty shall be of a pay and sentenced to a both, undergo fine imprisonment ... or ... ... or in the discretion of the court. 5, 1899, May Act of P.L. Section 4 ... manufacture, Any person margaring ... who shall sell ... oleo any butterine provisions ... in violation of of this act ... misdemeanor, guilty shall also be upon conviction thereof punished shall by upon first offense a fine ... and his any subsequent punished by conviction for offense shall be a fine by imprisonment ... or ... or both ... at discretion of the court. 14, 1972, 26, 1972, April Act of P.L. 233 No. 64 as Oct. *8 amended P.L. 1048, 263, 780-113(b) § 35 Pa.S.A. § (b) Any person any (1) provisions who violates of clauses (13) (15) (2) (a) through through guilty and shall be subsection misdemeanor, (4), (6), (7), (8), (9) except (19) a shall, and for clauses thereof, imprisonment on conviction be sentenced not exceeding year pay exceeding one or fine not five thousand both, ($5,000), (6), (7), (8), (4), (9) dollars and for clauses shall, thereof, (19) imprisonment on conviction be sentenced not exceeding years pay exceeding or to three a fine not five thousand both; but, ($5,000), dollars if the is committed violation after a prior person conviction of of this such a violation act under this final, person impris- section has become such sentenced to shall be years exceeding pay exceeding onment not three a fine or to ($25,000), twenty-five thousand dollars or both.
592 immediacy concept inclusion of into
to the trial court’s
case,
Pennsylvania
in all of the
cases
priority
statutes
of a
interpreting
prior
priority
recidivist
lies
commission of the offense
preceding
conviction
its
Ashe,
ex
v.
Turpack
rel.
Commonwealth
339
enhanced.
McDermott,
v.
Commonwealth
403, 15
(1940);
A.2d
Pa.
359
Commonwealth, 78
Rauch v.
363,
(1909);
Pa.
73
427
224
A.
Lane,
v.
462,
Commonwealth
Pa.Super.
(1875);
490
236
Pa.
Calio,
v.
(1975);
155 Pa.Su
A.2d 233
345
Flory
Commonwealth ex rel.
(1944);
355,
mission of
is,
fact,
rule in this
majority
as sentence enhancers
Annot.,
1247,
and not
the tradi-
country,
24 A.L.R.2d
fact,
In
“rule
approach
tional
this Commonwealth.4
Alabama, Code
13A-5-9
§
4.
1975
Alaska,
(1983)
Rastopsoff,
v.
593
offense,
penalty
it a severer
carrying
a second
with
[is]
until there has been
not, in
committed
legal contemplation
Id.
offense.”
a
for a first
conviction
statutes, or case
criminal
states have habitual
Thirty-one
as those
convictions
prior
defines
authority
expressly
which
offense.
principal
commission
preceded
have
which
the notion that:
is consistent with
reasoning
pun-
of increased
authorizing
imposition
Legislation
persist
at those who
on
is directed
ishment
recidivists
of an of-
convicted
having once been
criminality after
alleged
essential
generally
It
is thus
fense.
of the offense
the date
preceded
shall have
conviction
imposed.
sought
punishment
increased
which the
con-
The theme is
6.
Am
Habitual Criminals
39
Jur.2d
§
in this
exception
one
unwavering,
with
stant
from
as well
Commonwealth,5
extrapolated
and can be
statutory provisions.
previous
as from
303.7(g)
section
42
from
Pa.C.S.
drawn
point may
on
Guidance
enhancement
five-year
9714(b)6
designates
§
519,
Mexico,
P.2d
Rogers,
N.M.
602
v.
93
State
NMSA 31-18-17
New
307,
Linam,
denied 444
P.2d 253 cert.
(1979);
N.M.
600
State v.
93
616
(1979)
It
not intended that
descend
offence should
of a second
for the commission
one,
being
after
incorrigible
who
except the
upon anyone,
penal-
If the heavier
his neck.’
‘still hardeneth
reproved,
upon
...
visited
for the second violation
ty prescribed
of a
reproof
has not had the benefit
the one who
is lost.
of the statute
conviction,
purpose
then the
first
Sutton,
407,
We do not
“Prior
determining
sentence.
other offenses
court of
au
nature,
enforcement
connections,
with law
of whatever
to be
the circumstances
among
are unquestionably
thorities
Lupatsky,
v.
sentencing].” Commonwealth
scrutinized [in
omitted).
(citations
(1985)
338,
Penal statutes are make fit crime, and this guidelines regularize notion That this is poaching judicial preserves. without on clear that the minimum highest can seen from the fact sen- guidelines, aggregate tence available under the four (that month mini- is four consecutive twelve eight years mums), approximates the four and one- closely legally actually nine year imposed.8 half to sentence believe, not that these crimes appellant argues, We do episode, we assume part single criminal were increased geometrically he sen- objects only tences, multiple ones. He has committed but consecutive It is crimes, penalties. for which receive serial may he necessarily length sentence and not logic behind the therefore, will, take We vacate the exception. to which we and remand to the lower sentence judgments resentencing precepts. with these accordance
II. Restitution A. resentencing, case it is remanding are
Since we issue. sentencing Appel- appropriate appellant’s consider *12 illegal order of restitution was be- lant contends that the Pennsylva- make restitution to the he was ordered to cause Detec- County of and the Drug nia Bureau Control Chester Office, within the of which a “victim” neither tives statute. meaning of the restitution “restitution” is provides that The statute payments the or of of victim property The return the of to an order the equivalent pursuant or the thereof cash court. 1106(h). is defined as: “Victim”
18 Pa.C.S. § offender, injuries to who suffered person, except an Any the crime. result of or as a direct person property his appellant’s offenses is 80 aggregate statutory for maximum 8. The years.
597 1106(h). government Pa.C.S. The issue whether and can be included within definition agencies offices of first this Commonwealth. impression “victim” one however, have considered the issue. jurisdictions, Other Cir.1981), Garrison, (4th F.2d In Evans v. North applying Fourth Circuit Court Carolina Appeals, law, impose held could not that order North Bureau paid restitution to be to the Carolina expenses it had incurred Investigation Drug Division obtaining charges proof investigating while In guilty plea. reaching led to defendant’s which conclusion, Carolina restitu- the court examined North re- provided statute that defendant could be tion aggrieved par- to make restitution to “an quired party 15A-1343(d), pro- This same statute also ties.” N.C.G.S. aggrieved party that a can be an government agency vides government by way “no shall benefit of restitu- agency but damage loss to it particular tion ... over except its costs.” The court determined operating normal above investigating drug offenses was money expended expenses and there- among operating the Bureau’s normal fore, not made to it. restitution could Evans, Ill.App.3d 78 Ill.Dec. People
In
Court reached a similar
(1984),
Illinois
N.E.2d
law,
However,
providing
under Illinois
the statute
result.
of “victim”
separate
no
definition
provides
for restitution
shall make restitution
simply states “the defendant
but
victim____” Ill.Rev.Stat.1979,
38, par. 1005-5-6.
ch.
court stated:
we to hold
we
be remiss were
certainly
While
would
is a
substance
delivery of a controlled
that unlawful
reality
we
crime,
blinking
were
we would be
victimless
most, offenders are
if not
acknowledge
many,
of undercover
through the efforts
brought
justice
not,
We
monies.
will
making buys
public
with
agents
understanding of
however,
commonly accepted
strain
*13
en-
drug
public
so
to include the
as
the word “victim”
MEG, in the
us. Where
case before
agency,
forcement
public
solving
monies are
expended
pursuit
in the
crimes,
expenditure
agen-,
the
is part
investigating
cy’s
operating
governmental entity
normal
costs. The
is
therefore considered a
conducting
investigation
not
expended.
“victim” to the
monies are
public
extent that
so
(4th Cir.1981),
In
v.
Comparing our closely parallels statute most Oregon obvious which of the North Carolina statute language statute. enforcement bureau holding drug led the court’s Pennsyl- from absent conspicuously not a victim decision in Evans Therefore, do not find the we vania law. court, no which had The Illinois relevant. v. Garrison determining init whether definition to assist statutory victim, could followed drug agency enforcement Thus, reason for the same v. decision Evans Garrison. relevant, do not find we v. Garrison that we do Evans However, the our case. applicable Evans find People interpreted the court Oregon, statute describe statute: both Pettit, Pennsylvania’s similar *14 injuries person as who his “any person” “victim” suffers damages property pecuniary (Oregon) or or (Pennsylvania) Therefore, find as a result the defendant’s crime. we resolving to be the issue persuasive Pettit most before us. Pettit,
In court the limitation the stated that city police department being the a victim was whether on If damages. analy department pecuniary the suffered this statute, the applied Pennsylvania only inquiry to the sis drug to a enforcement restitution is to be made where agency the suffered an to its agency injury whether 1106(h)defines “injury or 18 Pa.C.S. person property. § or personal property, including of real property” “loss instruments, value, in its directly decrease negotiable from can be little doubt that resulting the crime.” There agencies in this case drug purchased when enforcement purchase from used appellant, money the cocaine nothing legal received drugs agency was “lost” because Therefore, we hold that a exchange money. for its as that term is used can be governmental agency “victim” of restitution in 18 Pa.C.S. 1106 and the order § Bureau payable Pennsylvania made to the case was Office, County the Chester Detectives Drug Control and proper. B. however, that the does argues, record
Appellant also
him
against
an
and that
support
order of restitution
required factors
imposing
did not consider the
thoroughly reviewing
After
of restitution.
sentence
record,
amply
supports
conclude that
record
we
However,
the record does not
order
restitution.
because
future, to
or in the
appellant’s ability, either now
disclose
in what
restitution,
the court
not determine
did
make
made,
must vacate
should be
we
manner
hearing.
a new
and remand for
order
imposed
Restitution can
either as a condition of
parole
or as a direct sentence. 18
probation
Pa.C.S.
9721(c).
In
1106 and
Pa.C.S.
both instances the
§
purposes:
make restitution has dual
order to
rehabilitate
provide
recompense
the defendant and to
some
to the vic
Fuqua,
Pa.Super.
tim. (1979). However, the
primary
imposing
A.2d
concern in
promote
is to
a sentence of restitution
rehabilitation
*15
him the
impress upon
responsibility
the defendant and to
he
Id.,
508,
Pa.Superior
must
for his actions.
Ct. at
accept
end, the
accomplish
at 26. To
court must
A.2d
the
exceeds neither the defendant’s
ensure that
restitution
Id.
ability
damages.
nor the
pay
to
victim’s
to pay
the defendant
sentenced
restitu
Where
tion,
must
a
to establish a record
hearing
the court
conduct
the order of restitution. Commonwealth v.
support
to
145,
Valent, 317 Pa.Super.
(1983).
When at the time of sen necessarily must be ordered restitution imposed for the punishment it is of the part tencing because so a defendant is sentenced crime. This is even when may not be to a of incarceration concommitantly period immediately. of the sentence restitution able to fulfill cases, that, in when a court recognize most We and the of incarceration period defendant to sentences the incarceration, income of his serving period defendant consequently diminished and drastically frequently will sentence of to immediately satisfy may he be able defendants, fact, at the time of sen- In some restitution. for a substan- been incarcerated tencing, already will have from which to time, have no income and will period tial However, inability pres- a defendant’s pay restitution. immediate- sentencing time of restitution at the ently pay authority the court’s to sen- impede does not thereafter ly if at the time of pay defendant tence the possibility the future record establishes sentencing the restitution. sentence satisfying defendant a defendant can which holds that “There is no rule of law present if he has a make restitution ordered to [emphasis immediate restitution.” to make ability financial Galloway, Pa.Super. added]. Wieand, (1982), concurring opinion A.2d Thus, ability pay defendant’s determining
J. education, restitution, court can consider order defend- training, employment history vocational ability future affect the defendant’s they may ant as assets which considering any in addition to make restitution in the likely acquire or is present have at may defendant *16 income. present future and any Wood, Pa.Super.
In restitution (1982), a sentence of upheld the Court A.2d 948 alia, determine, the defend to inter hearing which de payment, manner of was to and the ability pay ant’s At the parole. released on until after he had been ferred longer was no considered that defendant hearing, the court income, no mental addict, had regular weekly had a drug a to ability diminish his would impairment physical It would average intelligence. had an employed, determined at the court to have impossible for have been income of defendant’s sentencing of the amount the time the fact that he would from as well as prison release upon factors were considered free. Yet these drug remain after pay ability the defendant’s determining when, Thus, that at we hold parole. released on he was a present not evidence a defendant does sentencing, time restitution, can nevertheless sen- the court to make ability restitution, the manner make with the defendant tence at some hearing a time following determined to be payment future. not only court consider important It is that restitution, also pay but of the defendant ability present is enforce of restitution an order ability his future because of the court continuing authority The paid. until it is able implied restitution was imposing sentence to enforce a Cir.1984). Dudley, (4th States v. In United F.2d 175 counts of Dudley, multiple was convicted the defendant He sentenced to serve stamps. was use of food unlawful count, a fine of pay each imprisonment on years four $4,807.50 Depart to the $10,000, to make restitution parole given special also He was Agriculture. ment of from this appealed timely Defendant years. term of four he died. appeal, of the sentence, pendency during but appeal to dismiss the sought then Defendant’s counsel of the that, although as a result held moot. The court fine, term, special and the death, prison defendant’s restitution did not abate. abated, the order of parole sentence, and fine had a parole prison court noted preclud the defendant The death of character. solely penal having appro from term, and fine parole, prison ed the however, restitution, An order of effect. punitive priate but also the defendant to rehabilitate imposed death of the de Although the the victim. compensate could have no of restitution the order ensured fendant in no manner death effect, the defendant’s rehabilitative which would to the victim recompense effect of altered the Thus, one of not abate. because restitution did result if the still be could the order of restitution purposes the dual that, restitution, held the court by payment satisfied did *17 defendant, order of restitution death of the upon the not abate. and resti imprisonment sentences of
Simultaneous a of the other. When independently each can stand tution imprison- to a term been sentenced who has defendant to make restitution has satisfied the term of ment and of the defendant is still not the sentence imprisonment, restitution has also paid executed until the been be- fully (rehabilitation) sentence least one function of the cause at Just as court retains au- accomplished. has not been complete defendant to his sentence of require to a thority defendant, being after sentenced to when incarceration escapes completing the imprisonment, term of before a authorities, so too does the court and eludes sentence to enforce an order of restitution even authority retain does not paid it is not or the defendant have the though the term of pay immediately means to it either before has expired. incarceration restitution, however,
A cannot be sentence enforced the district by but must be enforced victim Although in the criminal courts. a sentence of attorney objective benefitting has the vic partial restitution reason, tim, part, that a although it is it is restitution remains enforceable until pay sentence contemporaneously of a or despite completion paid, sentence, a defendant to make prison sentencing dered a equivalent entering judgment. is not civil Therefore, order of restitution the victim cannot enforce the a Neither although upon judgment. he could execute civil a remedy. a substitute for civil is an order of restitution a An of restitution does not establish debtor-creditor order criminal. Farber v. the victim and the relationship between (N.Y.City Stockton, Misc.2d N.Y.S.2d criminal courts the Civ.Ct.1985). granting The statute specifically a sentence of restitution authority impose the victim an order of restitution does bar provides that judgment to obtain a separate a civil action pursuing from Thus for a 1106(g). damages. for the victim’s Pa.C.S. § losses, defendant to victim’s compel pay a victim action. pursue separate must civil the victim impose a sen- considering whether summary, In when at the restitution, hearing court must conduct a tence determine the amount The court must sentencing. time of *18 loss, victim, the defendant caused the whether loss to ability pay or future to present defendant’s and the there is evidence of ordered. Where of restitution amount restitution, in full or in the court part, pay to ability present sentencing time of payment method of at the order a should ability of the victim and the the needs best serve which will it defendant; there is evidence from which where but a only the defendant will have that determined may be the determina- postpone the court can pay, to ability future designated time until some payment method of tion of the future. case, the amount the court considered In the instant which caused activities appellant’s and that it was of loss 38.) There 19,1983, at 34 and (N.T., loss. October of defendant’s future in the record evidence ample also testified that Appellant restitution. ability pay potential if sentenced to he was employed, although presently he was terminate his incarceration, his would employer a term of 14, 1983, 31.) He also at (N.T., October employment. for seven job his present at having worked testified different he had worked previously and that years, having held testified to Appellant year. for one plant steel school, having and to high while part-time jobs several school. high training program while automotive taken the school, had out of he been high out of he had been Since laid-off and he was during which year one work find a ability initiative he had the during which 33.) at (N.T., October job. permanent different making mortgage pay that he was also testified Appellant much, if how house, say he did not although ments on a 14, 1983, (N.T., at October in the house. he had any, equity had provid he personally that 33.) also testified Appellant 14, 1983, (N.T., October $10,000 his cash for bond. ed the bond, this sum will be his 29.) If he does not forfeit at was or the restitution which pay than sufficient more a conclu Thus, support the record would ($6,500.) dered. restitu pay be able probably will appellant sion if Therefore, resentencing appellant, when tion ordered. ordered, court can determine again of the restitution. payment for and schedule time best Plea III. Withdrawal of in denying court erred the trial contends Appellant Appellant sought guilty plea. his to withdraw petition his *19 had not he claimed that he plea his because to withdraw to which charges of the four that for three informed been be enhanced penalty the would guilty, pleading he was pleading he was charges to which of the other because for the court improper that it was hold Because we guilty. not reach the issue we do appellant, to so sentence granting petition erred the court whether plea. guilty withdraw Excessive Sentence
IV. Be- excessive. his sentence was contends that Appellant proper remand for and the sentence we must vacate cause reach the we do not guidelines, of the sentence application sentence. of excessiveness question for re-sen- and remanded vacated of sentence Judgments opinion. Jurisdiction with tencing in accordance relinquished. concurring opinion. files a
SPAETH, Judge, President dissenting opinion. and JOHNSON, J., concurring files a of President expiration prior to the case decided This of office. term Judge SPAETH’s concurring:
SPAETH, Judge, President are uncon Sentencing Guidelines I believe Since Pa.Super. Kuphal, see Commonwealth stitutional, (SPAETH, P.J., 1205, 1209, (1985) dissent A.2d reach and not entire sentence I should vacate ing), calcu properly score was record prior issue of whether in Ku I in dissent however, that was recognize, I lated. binding, Kuphal that, accepting note therefore phal, issue I do reach opinion. majority’s I of the I Part join ordered, properly restitution was for on of whether I should and remand that believe order of vacation entered, again arise and we should there- the issue would restitution, II the issue of I Part join decide it now. On fore opinion. majority’s of the
JOHNSON, Judge, concurring dissenting: Common that our decision in majority I with agree Kuphal, wealth v. (1985) Pa.Super. A.2d concerning first contention appellant’s legality answers I sentencing guidelines. agree appellant also that, in his contention a defendant must sustained when sentencing pro at one multiple sentenced on convictions prior considered a conviction ceeding, no case should be guideline record score and sentence computing prior the defendant is to be sentenced any other case same day. on that part dissent from II. RESTITUTION respectfully
I must *20 govern- Per which considers whether Opinion of the Curiam and offices can be included within the defini- agencies ment on to hold that the goes of Chester tion “victim” of Pennsylvania Detective Office and Bureau County restitution statute. Drug are “victims” under Control pay contends that the order that he restitution Appellant $6,500 County to the Detectives’ in the amount of Chester Drug Bureau of Control Pennsylvania and the Office contention, I agree. Appellant further illegal. With this of payment 18 Pa.C.S. 1106 authorizes contends § crime, recipi- and the to the “victim” of a only herein not “victims.” ents were case particular I that the facts firmly Since believe restitution, I authorizing rule satisfy general cannot general proceed rule and inappropriate ignore find it to here government agencies to a discussion whether (h) under subsection of the restitu- involved are “victims” tion statute. 1106, pro- statutory provision,
The relevant 18 Pa.C.S. § as follows: vides injuries person property or 1106. Restitution for
(a) any Upon conviction crime General rule.— stolen, has been converted or otherwise property wherein obtained, or decreased unlawfully substantially its value crime, or direct of the wherein the victim as a result resulting from the personal directly injury suffered crime, may sentenced to make restitution offender therefor. punishment prescribed addition to
(h) following in this section the Definitions. —As used given them phrases meanings shall have the words in this subsection: of the vic- property return
“Restitution.” equivalent thereof payments pursu- cash or the tim to an order of the court. ant offender, suf- person, except who Any
“Victim.” as a result injuries person property to his direct fered the crime. pleaded guilty herein to three counts deliver- Appellant intent possession cocaine and one count of with ing appel- here ordered sentencing judge cocaine. The deliver $6,500 Detectives’ Office pay County Chester lant The sen- Drug Bureau of Control. Pennsylvania and the concedes, noted, tencing judge and the Commonwealth received represented Appellant the monies that the order agencies certain government purchased from agencies’ investi- from the course drugs appellant gations. 1106(a), resti- rule forth general set Section
Under property in convictions “wherein *21 tution authorized ob- stolen, unlawfully or otherwise been converted has as a direct tained, substantially decreased or its value appears Per Curiam Opinion crime.” The result upon is the asser- proper that restitution base its conclusion drugs ‘lost’ purchase “the used to was money that tion for nothing exchange legal received agency because I am at 206. A.2d its money.” Pa.Super. at the assertion that cocaine is prepared accept per not se agree possession I could that or illegal although delivery — registration a controlled substance proper without 780-113(30). See, illegal. e.g., licensure is P.S. however, my departure from the fundamentally, More inadvertent, failure, arises from its albeit majority first contemplated here property determine that the involved proceeding analyze rule subse- general under the before Per Curiam contains Although Opinion criteria. quent involved can be deemed to analysis agencies how “victims,” opinion analysis general offers no be 1106(a), does it intimate contained in Section nor how rule $6,500 of the given by agencies the officers appellant “stolen, convert- property can determined to be was unlawfully ed or otherwise obtained.” indeed it could not argue, fails to and Commonwealth $6,500 appellant turned over to argue, so stolen, unlawfully obtained either converted otherwise Moreover, do delivery possession him. the crimes of monies, qua property, the use of necessarily not involve stolen, unlawfully or otherwise that has been converted Therefore, appel- upon neither the crimes obtained. permits nor the facts of this case lant has been convicted 1106(a) rule found Section application general restitution, re- appellant should providing to make restitution thereunder. quired 351, 466 Pa.Super. Cooper, In in other (1983), jurisdic the case law analyzed A.2d 195 we permissible only that “restitution is tions and determined from the which the flowing to losses conduct defend 319 Pa.Su accountable.” criminally has been held ant (citations omitted, emphasis A.2d at 197 at per. process that due added). upon the rationale This based restitution has the losses for which of law is denied when for which very did not arise from the offense imposed been convicted. the defendant was govern- Here, dealing right are not with the we petition for the resisting ment to retain contraband *22 Rather, seized. See 35 P.S. 780-128. of property return agency whether a government us concerns the issue before mandating of sentence restitu- judgment can from a benefit represents nothing more tion, involved where amount voluntarily of transferred monies replacement than the establishing another for the of purpose agency separate of a crime. commission view, the restitution is property which my
-In own does not fit the definition statutory here ordered being in controlling restitution found in the rule general contained I 1106(a) equal importance, Crimes Code. Of Section in engage arguably concern that we what grave have compel we restitution process law when denial due did, fact showing that the losses a clear without the defendant law, from the offense which very arise ruling I Court Finally, convicted. view has been set forth overruling principle today I would be unable Cooper, supra, to join. I for which property conclude
Since statutory definition Section ordered does not fit the was either of 1106(a), proceed I to determine whether would 1106(h). “victim” as defined Section agencies I also find improper remedy, is an I find restitution Because of whether the restitution question no need address the the record. on adequately supported order and vacate judgment of sentence I would affirm dissent. of restitution. Hence this order