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HomeMy WebLinkAbout97-2229 criminalCOMMONWEALTH Ve RONALD BARRY WOLFE, I I : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : : NO. 97-2229 CRIMINAL TERM : : IN RE: OPINION PURSUANT TO APPELLATE RULE 1925 GUIDO, J., October 28, 1998. On October 3, 1997, the Defendant was operating a motor vehicle which was involved in an accident. The passenger in his vehicle was seriously injured and was evacuated by helicopter to the Penn State Geisinger Medical Center. The Defendant was charged, inter alia, with Driving Under the Influence to which he entered a guilty plea on February 24, 1998. A presentence investigation was ordered. After reviewing the presentence investigation report, we imposed sentence on March 3, 1998. Included as part of the Defendant's sentence was a direction that he make restitution to Penn State Geisinger in the amount of $17,167.76 for unpaid medical bills incurred by the victim. No post sentence motions were filed in connection with, nor were any- appeals taken from, the entry of said order.~ On our own motion we directed the probation office to schedule a hearing so that we could explore what first party insurance benefits might be available to be applied to the Penn ~At sentence the Defendant's counsel indicated that she was going to look into whether or not any insurance proceeds received by the victim had been applied to the medical bills. However, she neither objected to our March 3, 1998 restitution order nor did she file any post sentence motions. NO. 97-2229 CRIMINAL TERM State Geisinger bill. The hearing was held on June 16, 1998. By agreement of the parties, the hearing was rescheduled for August 18, 1998. At the conclusion of testimony, we entered an order modifying the restitution to $23,161.15. On September 23, 1998 the instant appeal was filed.2 DISCUSSION On October 1, 1998, Defendant's counsel filed a concise statement of matters complained of on appeal. She has raised the following two issues: 1) The order of August 18, 1998 modifying the restitution was invalid since it was entered more than thirty (30) days after the original sentencing order of March 3, 1998. 2) The order directing restitution to Penn State Geisinger was inappropriate since a medical provider is not a victim within the purvue of the restitution statute contained at 18 Pa. C.S.A. § 1106. We will address the issues seriatim. Section 5505 of the Judicial Code provides as follows: Except as otherwise provided or prescribed 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 from such order has been taken or allowed. (emphasis added). 42 Pa. C.S.A. § 5505. Generally, once the thirty day period is ,, 2Although the order was entered at the conclusion of the hearing in the presence of all parties, it was not docketed in the clerk's office until September 11, 1998. Therefore, this appeal is timely. See Claims of Linefsky, 159 Pa. Commw. 234, 632 A.2d 1061 (1993). NO. 97-2229 CRIMINAL TERM over we lose the power to alter our sentence. See Com. v. Benn 451 Pa. Super. 538, 680 A.2d 896 (1996). However, Section ll06(c)(2)(iii) of the crimes code provides as follows: 2) In determining the amount and method of restitution, the court: (iii) May a~ any %ime alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change ~or. amendment to any previous order. (emphasis added) 18 Pa. C.S.A. ~ 1106 (c)(2)(iii). Accordingly, we are authorized by law to alter or amend an order of restitution so long as we state our reasons and conclusions on the record.3 Therefore, the modification more than thirty days after the original order was appropriate. Before we enter into a discussion as to why we disagree with Defendant's second contention of error, we must address the procedural issue of waiver. At the time of sentence on March 3, 1998, Defendant did not object to our direction that restitution be made to Penn State Geisinger. Furthermore, no post sentence motions were filed, nor was any appeal taken within thirty (30) days of the entry of the sentencing order. Therefore, we submit 3Our conclusions and reasons are stated fully on pages 23 and 24 of the Transcript of the August 18, 1998 proceedings. NO. 97-2229 CRIMINAL TERM that the issue has not been properly preserved for appeal.4 Notwithstanding the above, we are satisfied that the award of restitution to Penn State Geisinger was appropriate. Section 1106 of the Crimes Code provides in relevant part as follows: 1106. Restitution for injuries to person or property (a) General rule.-Upon conviction for any crime.., 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. (c) Mandatory restitution. - (1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. 42 Pa. C.S.A. ~ 1106. In making our order of restitution to Penn State Geisinger, we fully considered both the stated purposes of the statute, i.e. "to provide the victim with the fullest compensation for loss , ~e 5 and the primary purpose of restitution, i.e. the "rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim's loss or personal injury and that it is his responsibility to repair the loss or personal injury as far as 4An issue will not be considered on appeal where Defendant fails to timely provide the trial Court with the opportunity to correct the alleged error. Com. v. Clair, 458 Pa. 418, 326 A2d 272 (1974); Com. v. Chimenti, 362 Pa. Super 350, 524 A 2d 913 1987. ' · 518 Pa. C.S.A. ~ 1106(c)(1)(i). NO. 97-2229 CRIMINAL TERM possible". Com. v. Runion, 541 Pa. 202, 206, 662 A.2d 617, 618 (1995). We also considered the realties of the situation. The victim was responsible for the payment of thousands of dollars to Penn State Geisinger for medical treatment, of injuries sustained in the accident caused by the Defendant's criminal conduct. However, the victim was clearly less than responsible.6 If we were to order the payment of restitution for medical bills directly to the victim,* there is little likelihood that he would apply any amount to the outstanding medical bills. We do not believe that our Legislature intended, or that our Courts should require, such a literal reading of the statute. To do so would likely result in a windfall to the victim at the expense of a good faith provider of medical services. In this case, we feel that the requirements of Section 1106 were met by our direction that the Defendant satisfy a debt of the victim which was incurred as a direct result of the Defendant's criminal conduct. This satisfied both the spirit and intent of the restitution statute. For these reasons, we submit that the order directing restitution to Penn State Geisinger was 6The victim received a $15,000.00 settlement from Defendant's insurance carrier. He did not apply a single cent of that amount toward the payment of the over $20,000 in outstanding medical bills. Rather he spent $5,000 on an old pick up truck, and gave the rest away to family and friends. See Notes of Testimony, April 18, 1998 hearing, pages 15-16. 7The 1995 amendments to Section 1106 make such restitution mandatory. NO. 97-2229 CRIMINAL TERM appropriate. October ~ ~ 1998 ; Edward E. Guido, J. Jonathan R. Birbeck, Esquire For the Commonwealth Ellen K. Barry, Esquire For the Defendant :sld