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HomeMy WebLinkAbout97-0860 criminalCOMMONWEALTH vs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0860 CRIM~AL LINDA FAY JOHNSON : IN RE' DEFENDANT'S MOTION FOR MODIFICATION OF RESTITUTION ORDER ORDER AND NOW, this day of NoVember, 1999, the motion of the defendant for modification of restitution order is DENIED. BY THE COURT, John A. Abom, Esquire Senior Assistant District Attorney ess, J. Thomas Brenner, Esquire For the Defendant Probation :rim COMMONWEALTH ¥s LINDA FAY JOHNSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0860 CRIMINAL IN RE: DEFENDANT'S MOTION FOR MODIFICATION OF RESTITUTION ORDER MEMORANDUM AND ORDER This matter is before the court on the defendant's request to delete from our earlier sentencing order the requirement that she make restitution. She claims that she has entered into a civil settlement with the victim which has the effect of nullifying her obligation under the sentence. Hearing was held in this matter after which counsel filed briefs. Because we believe ,. the facts are accurately summarized in the brief filed by the Commonwealth, we reiterate them here. 1. On October 30, 1997, this Honorable Court sentenced the defendant at Count 1, Aggravated Assault by Vehicle While Driving Under the Influence, to (1) pay the costs of prosecution, (2) make restitution in the amount of lost wages and medical expenses, same to be offset by insurance if applicable, and the court to retain jurisdiction over this issue, and (3) to undergo imprisonment in the Cumberland County Prison for a period of not less than three nor more than twenty-three months. 2. The acts giving rise to the charges arose on March 7, 1997, wherein the defendant chose to drive while she was intoxicated to the point that she could not operate a vehicle safely. 97-0860 CRIMINAL The defendant's vehicle struck head-on the vehicle of Julianne Hamaker, a forty-two-year-old nurse who was employed at the Franklin County Prison. 3. As a result of the collision caused by the defendant, Ms. Hamaker suffered serious and permanent bodily injury. 4. At the time of the sentence, the full extent of the victim's disability, and the amount of her medical expenses and lost wages remained undetermined as they were continuing to accrue. 5. As of the date of the most recent hearing in this case on October 8, 1999, Ms. Hamaker remained unable to work and her medical expenses continued to accrue. At that hearing, Ms. Hamaker testified that she had additional surgeries scheduled in the near future to treat the injuries she suffered in the head-on collision on March 7, 1997. 6. The uncontradicted testimony presented at the Modification of Restitution hearing on October 8, 1999, indicated that Ms. Hamaker's uncompensated personal expenses for lost wages and medical expenses was $12,918.04 to that date. That amount takes into consideration payments received by Ms. Hamaker from the Crime Victims' Compensation Fund,~ the Social Security Administration, and the defendant's insurance carrier. The full amount of the loss suffered by Ms. Hamaker, including the portions for which she has been reimbursed, stands at $194,438.90 as of October 8, 1999. ~ We have been advised that the defendant's restitution payments are currently being forwarded to the Crime Victim's Compensation Fund as reimbursement. We do not believe that this is correct. We understand that the Crime Victim' s Compensation Fund is subrogated to the extent of their payment. See. 18 P.S. 11.1301. Ms. Hamaker, however, continues to incur losses over and above.payments made to her by the Crime Victim's Compensation Fund. While the Fund could bring its own action against Ms. Johnson, it ought not to lay claim to restitution payments unless and until the victim has been fully reimbursed. 97-0860 CRIMINAL 7. On August 6, 1999, Ms. Hamaker and her husband received a $100,000 payment from the defendant's insurance carrier, Erie Insurance Group. That payment represented the limits of the liability insurance carried by the defendant. In exchange for the payment, Ms. Hamaker and her husband executed a document releasing the defendant and her insurance company from any and all actions, suits or claims filed by or on behalf of Ms. Hamaker arising out of the head-on collision caused by the defendant. 8. On March 18 and May 8, 1998, and August 6, 1999, the Crime Victims' Compensation Division of the Pennsylvania Commission on Crime and Delinquency reimbursed Ms. Hamaker a total of $14,034.82 as compensation for some of the losses she suffered as a result of the head-on collision. 9. From the time of her sentence up and until August of 1999, the defendant paid $50 per month towards her costs, fines and restitution as ordered by this Court in October of 1997. The issue presented here is whether the general release executed by the victim, Ms. Hamaker, serves to excuse the defendant from the requirement to pay restitution in accordance with our order of October 30, 1997. We agree with the Commonwealth that it does not. The sentencing .order itself provides that any amount owed by way of restitution would be offset by insurance. This contemplated and even presupposed that the parties would take all necessary steps to obtain appropriate insurance payments. The execution of the release is simply part of the mechanical means towards that end. While any further right of civil recovery against Ms. Johnson is in all likelihood extinguished by the settlement, we know of no authority whereby her obligations under the criminal law are affected. A sentence imposing restitution is 97-0860 CRIMINAL not an award of damages. The award of damages serves two purposes' first, to compensate the victim; and, second, to "rehabilitate the defendant by instilling in her mind that it is her responsibility to compensate the victim." Com. v. Wright, 722 A.2d 157, 159 (Pa. Super. 1998) citing Com. v. Gemlis, 420 Pa. Super. 266, 287-87, 1616 A.2d 686, 697 (1992). While the court is granted the discretion to order restitution as part of a criminal sentence, once restitution has been ordered, the court is required to order restitution in full. Com. v. Rohrer., 719 A.2d 1078, 1080 (Pa. Super. 1998). We will continue to enforce this mandate in the instant case. ORDER AND NOW, this day of November, 1999, the motion of the defendant for modification of restitution order is DENIED. BY THE COURT, John A. Abom, Esquire Senior Assistant District Attorney · Hess, J. Thomas Brenner, Esquire For the Defendant Probation :rlm