HomeMy WebLinkAbout00-1660 CriminalCOMMONWEALTH
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DONALD GERALD
CLARK, JR.
OTN: L057914-3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGE: DUI
NO. 00-1660 CRIMINAL TERM
DEFENDANT'S SECOND POST-SENTENCE MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 29th day of March, 2001, upon consideration of Defendant's
Post-Sentence Motion filed March 7, 2001, and for the reasons stated in the
accompanying opinion, Defendant's motion is denied.
BY THE COURT,
ff/~V~ley Ole(J~, 5.'
Jonathan R. Birbeck, Esq.
Chief Deputy District Attorney
Aria M. Waller, Esq.
Assistant Public Defender
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COMMONWEALTH
Vo
DONALD GERALD
CLARK, JR.
OTN: L057914-3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGE: DUI
NO. 00-1660 CRIMINAL TERM
IN RE: DEFENDANT'S SECOND POST-SENTENCE MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., March 29, 2001
On January 2, 2001, Defendant, Donald Gerald Clark, Jr., pled guilty to driving
under the influence in violation of the Vehicle Code at 75 Pa. C.S. §3731(a). On
February 6, 2001, Defendant was sentenced to pay the costs of prosecution, a fine of
$300.00, a $50.00 CAT Fund surcharge, a $10.00 Emergency Medical Services Fund
assessment, a $45.00 per day incarceration fee, and restitution in the amount of $426.00
to the United States Postal Service (for a damaged mailbox) and to undergo
imprisonment in the Cumberland County Prison for a period of not less than forty-eight
hours nor more than twenty-three months.
On February 16, 2001, pursuant to Pennsylvania Rule of Criminal Procedure 1410,
Defendant filed a timely post-sentence motion to modify sentence. In his motion,
Defendant asserted that the amount of restitution ordered was excessive and requested
that the figure be reduced.
On February 28, 2001, a hearing was held on Defendant's motion; at the hearing,
testimony was received from the Postmaster of the Carlisle Post Office and Defendant.
Based upon the evidence presented, the court concluded that the amount of restitution
was not excessive and found that the evidence showed, through the testimony of the
Postmaster, that the cost of replacing the damaged mailbox was in fact higher than the
amount of restitution ordered. Consequently, the court modified Defendant's sentence,
increasing the amount of restitution owed to $713.01 - the figure which the evidence
revealed was the actual cost of replacing the mailbox. The order of court read as follows:
AND NOW, this 28th day of February, 2001, upon consideration
of Defendant's post-sentence motion in the form of a motion to
modify the sentence imposed on February 6, 2001, to reflect a proper
restitution figure, and following a hearing at which testimony was
received from the postmaster of the Carlisle Post Office as well as
from the Defendant, and the Court finding that the [mail]box in
question was replaced at a cost of $713.01, the sentence dated
February 6, 2001, is amended to reflect a restitution figure of
$713.01.
Defendant subsequently filed a second post-sentence motion to modify sentence
on March 7, 2001, requesting that the amount of restitution be reduced to the original
figure submitted.
Pennsylvania law provides that
[t]he court may, at any time or upon the recommendation of the
district attorney that is based on information received from the
victim and the probation section of the county or other agent
designated by the county commissioners of the county with the
approval of the president judge to collect restitution, alter or amend
any order of restitution ..., provided, however, that the court states its
2
reasons and conclusions as a matter of record for any change or
amendment to any previous order.~
The court is therefore of the view that it was justified under section 1106(c)(3) of
the Crimes Code in ordering an increase in the amount of restitution, supported by the
reason stated in the order. For this reason, the following order ~vill be entered on
Defendant's most recent post-sentence motion to modify sentence:
ORDER OF COURT
AND NOW, this 29th day of March, 2001, upon consideration of Defendant's
Post-Sentence Motion filed March 7, 2001, and for the reasons stated in the
accompanying opinion, Defendant's motion is denied.
BY THE COURT,
Jonathan R. Birbeck, Esq.
Chief Deputy District Attorney
Arla M. Waller, Esq.
Assistant Public Defender
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s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
~ 18 Pa. C.S. §1106(c)(3).