Commonwealth v. RohrerCommonwealth v. Rohrer
Aрpellant, William Rohrer, Jr., appeals from the March 16, 1998 Order of the Lancaster County Court of Common Pleas which modified his 6 to 23 month sentence by imposing restitution. For the reasons set forth below, we reverse.
Appellant was arrested after he drove a stolen vehicle over an embankment to avoid pursuing police, and then attempted to flee on foot. When apprehended, Appellant smelled of alcohol and failed field sobriety tests; he refused submission to breathalyzer analysis. On November 11,1997, he entered an open plea to driving under the influence, receiving stolen property, fleeing and eluding the police, and various summary offenses. On the same day, Appеllant was sentenced to three concurrent terms of 6 to 23 months imprisonment in addition to a $300 fine and other costs. The issue of restitution was not raised by any party at the time of sentencing. Appellant’s sentence was amended three days later on November 14,1997 to include a provision which allowed Appellant to be paroled without petition on the condition that all fines and costs are paid prior to his release.
Three and a half months later, on February 27, 1998, the Commonwealth filed a Motion to Amend Sentеnce, requesting that the court amend Appellant’s sentence to include an order of restitution in the amount of $2455.60; this amount reflects an estimate of the damage sustainеd by the victim’s vehicle when Appellant drove it over the embankment. Appellant responded, arguing that the motion was untimely, and, therefore, the court was without jurisdiction to аmend his sentence. 1 We agree.
According to Rule of Criminal Procedure 1410, “[a] written post-sentence motion to reconsider sentence must be filed no later than ten days after impоsition of sen-tence_ ‘The failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself.’”
2
Commonwealth v. Magnum,
Notwithstanding the procedures outlined in Rule 1410, a court may, sua sponte, modify or rescind a prior order pursuant to section 5505 of the Judicial Code:
Except as otherwise provided or proscribеd by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal frоm such order has been taken or allowed.
In the instant matter, the Commonwealth claims that pursuant to Crimes Code section 1106(e), restitution is mandatory in cases such as this involving property damage. Therefore, it is argued, the court’s failure to impose restitution at the time of sentencing rendered Appellant’s sentence illegal; this is so despite the Commonwealth’s failure to request an order of restitution at the sentencing hearing. The Commonwealth contends, however, that the court through its March 16, 1997 modification 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
(a) General rule. - Upon conviction for any crime wherein property has beеn 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 rеsulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
* * * *
(c) Mandatory restitution. -
(1) The court shall order ftdl restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss....
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
Thus, we reject the Commonwealth’s interpretation of
In addition, we note that the instant matter does not involve a mere clericаl 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 restitutiоn, the order must be vacated.
Order vacated.
Notes
. Appellant also claims that the modification of his sentence beyond the 30-day appeal period is a violation of his federal constitutional right of protection against double jeopardy. However, Appellant fails to include any pertinent constitutional discussion and even neglects to рrovide the text of the U.S. Constitutional Amendment which he claims was violated. We refuse to act as appellate counsel and formulate arguments for the litigants. As a result, wе find this issue waived.
See
. Although the 1993 amendments to
While inapplicable to the instant matter, it is interesting to note that
However, nothing in this Rule alters the well established timing provisions governing motions to modify and direct appeals: the Commonwealth’s motion to modify must be filed no later thаn 10 days after the imposition of sentence; and an appeal of the sentence must be filed within 30 days of the entry of the order disposing of the defendant’s post-sentenсe motion or, if no motion was filed by the defendant, within 30 days of the entry of an order imposing sentence. Id. at 1411(B)(1), (2)(a)(i)-(ii). Thus, even if Rule 1411 were applicable to the instant action, the result would remain the same since the Commonwealth failed to file either a timely motion to modify Appellant's sentence or a timely direct appeal with this Court.