Restitution: Where it is invalid because imposed more than 30 days after imposition of sentence, may the Superior Court remand for resentencing?

Commonwealth v. Cochran, 2018 WL 2404980 (Pa. Super. 2018) (unreported), allocatur granted Dec. 28, 2018, appeal docket 77 MAP 2018.

Cochran pled guilty to destroying property at his grandparents’ vacation home, terroristic threats, and simple assault of his grandmother, and was sentenced on June 29, 2017 to three to twenty-three months in York County Prison plus costs of prosecution; a restitution hearing was deferred until more than 30 days later. At the September 15, 2017 restitution hearing, Cochran argued that the court lacked jurisdiction to impose restitution because restitution must be set at the time of sentencing, as required by 18 Pa.C.S. § 1106(c)(2), and the trial court lost jurisdiction to modify sentence after 30 days, pursuant to 42 Pa.C.S. § 5505. The trial court imposed restitution nonetheless.

On appeal, the Superior Court agreed that the restitution order was illegal for the reasons Cochran stated, but disagreed on the remedy.  Cochran asked that the restitution order be vacated, leaving the rest of the sentence intact, as was the result in Commonwealth v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002).  The Superior Court agreed with the Commonwealth, however, that the appropriate remedy was to remand for resentencing, because the intended sentence included both incarceration and restitution, and simply eliminating restitution would upset the sentencing scheme:

In Dinoia, this Court vacated the restitution order after the trial court failed to set the restitution at sentencing. Thus, Cochran requests that his restitution order should likewise be vacated, while leaving the rest of his sentence intact. However, since Dinoia, this Court has routinely vacated illegal restitution orders and remanded the case for resentencing. See, e.g., Commonwealth v. Deshong, 850 A.2d 712, 716-18 (Pa. Super. 2004) (agreeing with the Commonwealth that because “disposition apparently alter[ed] the sentencing scheme of the trial court, we must vacate the sentence and remand for resentencing”); Commonwealth v. Mariani, 869 A.2d 484, 487 (Pa. Super. 2005) (stating the remedy as “remand[ing] for resentencing rather than vacating the restitution order as [the appellant] insists is appropriate”); Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (agreeing with the Commonwealth that the proper remedy “is for the trial court to have an opportunity to impose a new restitution order”).

Slip Op. at 5-6.

Accordingly, the Superior Court held that “the appropriate remedy is for the trial court to have an opportunity to impose a new sentence which includes a restitution order.” Slip Op. at 7.

The Supreme Court has granted allocatur to examine the following issue:

Whether the Superior Court, in a line of cases going back to 2004, has gradually eroded the General Assembly’s plain mandate established in 18 Pa.C.S. §1106(c) that restitution must be set at the time of sentencing?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.