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HomeMy WebLinkAbout01-1035 CRIMINALCOMMONWEALTH VS. SHARON MARIE ARNDT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1035 CRIMINAL DEFENDANT'S MOTION TO MODIFY SENTENCE BEFORE HESS, J. OPINION AND ORDER IN this criminal case, the defendant was charged with four counts of forgery and four counts of access device fraud. The charges arose out of events which occurred when the defendant, Sharon Arndt, served as an in-home caregiver for the victim, Michael D. Horst (Horst) who is a quadriplegic. While serving as Horst's caregiver and assisting him with his day to day activities, the defendant opened numerous credit card accounts in his name without his knowledge and permission. She then made charges totaling in excess of $29,000 on those fraudulent accounts. Horst eventually discovered what the defendant was doing and notified authorities. Her arrest ensued. As a result of the activities of the defendant, Horst was faced with the Herculean task of repairing the damage done to his credit. He retained F. Stephenson Matthes, Esquire, from the law firm of Tucker, Arensberg & Swartz. Mr. Matthes expended considerable time and effort in connection with this case. The defendant eventually pled guilty to one count of forgery and one count of device fraud in full satisfaction of all of the charges. She was sentenced to undergo restrictive intermediate punishment for a period of seven years with the first four months to be spent in the 01-1035 CRIMINAL Cumberland County Prison on work release. IN addition, she was ordered to make restitution to the defrauded credit card companies in the amount of $29,034.52. Finally, she was directed to make restitution to the victim, Michael Horst, in the amount of $7,268.09, which represents the costs and attorney's fees accrued in repairing Horst's credit. The defendant has filed a motion to modify her sentence to delete the order of restitution for attorney's fees. Pursuant to 18 Pa.C.S.A. 1106(a), a defendant may be ordered by the court to make restitution "[u]pon conviction for any crime wherein property has been 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 resulting from the crime." Here, property has been most certainly "unlawfully obtained." At the time of sentence, it seemed to us only logical and fair that the defendant should be directed to reimburse the victim for his attorney's fees which were incurred as a result of unlawful conduct on the part of the defendant. Having now reviewed, more extensively, the applicable appellate case law, we are compelled to the conclusion that our order directing restitution for attorney's fees was error. It is the rule that attorney's fees are recoverable from an adverse party to a cause only when provided for by statute, or when clearly agreed to by the parties. Department of Transportation v. 3danorgdines, Inc. 523 Pa. 112, 122, 565 A.2d 428, 433 (1989). See also, Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975). In reKling, 433 Pa. 118, 249 A.2d 552 (1969). Shapiro v. Magaziner, 418 Pa. 278, 210 A.2d 890 (1965). Drummondv. Drummond, 414 Pa. 548, 200 A.2d 887 (1964). Fidelity-Philadelphia Trust Co. v. Philadelphia Transit Co., 404 Pa. 541, 173 A.2d 109 (1961). 2 01-1035 CRIMINAL The narrow question then becomes whether or not the language of 18 Pa.C.S.A. 1106(a) authorizes an order of restitution which would include attorney's fees. The case of Com. v. Hamer, 402 Pa. Super. 472, 487 A.2d 347 (1991) held, specifically, that it does not. In that case, the defendant pled guilty to two counts of interference with the custody of children. She had abducted the children from the custody of their father and taken them to the state of Louisiana. As part of her sentence, the defendant was ordered to make restitution for attorney's fees expended by the father in connection with the return of the children. The Superior Court found that there was no statute that provided for the payment of attorney' s fees in that situation and since there was no agreement to reimburse for the fees, they could not be awarded as restitution. While the Supreme Court subsequently reversed and remanded, it expressly upheld the action of the Superior Court in vacating the award of attorney's fees. In a footnote, the Supreme Court said: The Commonwealth has also argued that attorney's fees are recoverable under 18 Pa.C.S. § 1106(a) on the theory that the legal fees incurred by the victims' father were directly caused by the illegal action of the mother and cannot be separated from the other expenditures incurred. The Superior Court rejected this argument, noting that the statute makes no specific reference for the award of legal fees and applied the settled rule that attorneys' fees are recoverable from an adverse party to a cause only when provided for by statute, or when clearly agreed to by the parties... We agree. Since this statute makes no specific provision for the award of counsel fees, it would be inappropriate to read such a provision into the statute and an award of attorneys' fees under this statute would be inappropriate. Com. v. Hamer, 533 Pa. 14, 23,617 A.2d 702, 707 (1992). 01-1035 CRIMINAL In the end, whether attorney's fees are awardable in criminal cases is a matter for the legislature and not for the courts. In the meantime, because our order with respect to attorney's fees was without legislative authority, we will vacate that portion of our sentencing order. ORDER AND NOW, this day of May, 2002, the motion of the defendant for modification of sentence is GRANTED. Our sentencing order of January 29, 2002, is modified to delete therefrom that portion of the order directing the payment of attorney's fees in the amount of $7,122.28 is VACATED. BY THE COURT, Kara W. Haggerty, Esquire Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender Probation :rlm Kevin A. Hess, J. 4 COMMONWEALTH VS. SHARON MARIE ARNDT 1NRE: AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1035 CRIMINAL DEFENDANT'S MOTION TO MODIFY SENTENCE BEFORE HESS, J. ORDER day of May, 2002, the motion of the defendant for modification of sentence is GRANTED. Our sentencing order of January 29, 2002, is modified to delete therefrom that portion of the order directing the payment of attorney's fees in the amount of $7,122.28 is VACATED. BY THE COURT, Kara W. Haggerty, Esquire Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender Probation :rlm Kevin A. Hess, J.