OPINION BY MUNDY, J.
Appellant, Russell Allan Gentry, appeals from the December 17, 2013 order dismissing his "Motion for Restitution to be Discharged" and amending the restitution amount in his case from $49,000.00 to
We summarize the relevant factual and procedural background of this case as follows. On June 2, 2009, the Commonwealth filed an information charging Appellant with three counts of possession with intent to deliver (PWID), three counts of intentional possession of a controlled substance, and one count each of possession of drug paraphernalia and receiving stolen property.
On February 20, 2013, Probation filed a violation report based on Appellant's failure to pay his court fees, costs, and restitution.
On June 11, 2013, Appellant filed a "Motion for Restitution to be Discharged." The trial court conducted a hearing on December 17, 2013, at the conclusion of which it entered an order dismissing the motion as untimely. However, the trial court reduced the amount of restitution to $42,000.00 based on a concession from the Commonwealth. On January 16, 2014, Appellant filed a notice of appeal.
On appeal, Appellant raises three issues for our review.
Appellant's Brief at 4.
Before analyzing the merits of Appellant's claims, we must first address the basis for our jurisdiction to consider the same. We may raise issues concerning jurisdiction sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957-958 (Pa.Super.2011). Instantly, the trial court believed that Appellant's June 11, 2013 motion was untimely filed. Trial Court Opinion, 4/3/14, at 1. As restitution is part of the judgment of sentence, if the trial court were correct that Appellant's June 11, 2013 motion was an untimely motion for modification of sentence, it would have lacked jurisdiction to address the merits of Appellant's claims. See 42 Pa.C.S.A. § 5505 (stating, "a court upon notice to the parties may modify or rescind any order within 30 days after its entry ... if no appeal from such order has been taken or allowed[ ]"). In addition, we would also lack jurisdiction to consider Appellant's appeal, as the appeal period would have expired on May 15, 2013, 30 days after the latest judgment of sentence was imposed. See generally Pa.R.A.P. 903(c)(3) (stating, "the notice of appeal shall be filed within 30 days of the imposition of the judgment of sentence in open court[ ]"); Pa. R.Crim.P. 708(E) (stating, "[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition ... [and t]he filing of a motion to modify sentence will not toll the 30-day appeal period[ ]").
However, this Court has held that the restitution statute, Section 1106 of the Crimes Code, "permit[s] a defendant to seek a modification or amendment of the restitution order at any time directly from the trial court." Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super.2012), citing Commonwealth v. Mitsdarfer, 837 A.2d 1203, 1205 (Pa.Super.2003). Our case law in this Commonwealth establishes that the statute creates an independent cause of action for a defendant to seek a modification of an existing restitution order. Id.; see also 18 Pa.C.S.A. § 1106(c)(3) (stating,
We begin by noting our well-settled standard of review. "It is well settled that a challenge to a court's authority to impose restitution is generally considered to be a challenge to the legality of the sentence." Commonwealth v. Hall, 994 A.2d 1141, 1143 (Pa.Super.2010) (en banc) (citation omitted), affirmed on other grounds, ___ Pa. ___, 80 A.3d 1204 (2013).
In his first issue, Appellant avers that the trial court lacked authority to impose restitution when "the Commonwealth provided no evidence of the likely restitution at sentencing and made a `place holder' recommendation[ ] of $1.00 which the [trial] court adopted without knowing the full extent of restitution when it sentenced [Appellant]." Appellant's Brief at 11. Appellant further argues that this permitted the Commonwealth to avoid having to present any evidence of restitution, instead it allowed Probation to unilaterally impose an amount. Id. at 14. Therefore, in Appellant's view, because "the trial court never legally set [Appellant]'s restitution at sentencing, [ ] the order was void ab initio." Id. The Commonwealth concedes in its brief that the trial court imposed an illegal sentence. Commonwealth's Brief at 6. After careful review, we agree with both parties.
As noted above, the imposition of restitution is controlled by Section 1106 of the Crimes Code which provides in relevant part, as follows.
18 Pa.C.S.A. § 1106. The plain text of the statute requires the trial court to specify the amount of restitution at the time of the original sentencing as well as a method of payment. Id. § 1106(c)(2). In addition, our cases unequivocally hold that "[t]he [trial] court [is] not free to delegate these duties to an agency." Commonwealth v. Deshong, 850 A.2d 712, 716 (Pa.Super.2004). This includes the county probation department. Id.; see also Commonwealth v. Mariani, 869 A.2d 484, 486 (Pa.Super.2005) (stating, "an order of restitution to be determined later is ipso facto illegal[ ]").
In this case the trial court imposed a restitution order of $1.00 as an interim value for Probation to determine at a later date. We agree with Appellant and the Commonwealth that this delegation is not permitted under Section 1106 or our cases.
The trial court argues that its order should be affirmed for two separate reasons in addition to the motion's alleged untimeliness. First, the trial court states that, as part of his plea agreement, Appellant agreed to have Probation fix a restitution amount in exchange for the nolle pross of the remaining charges against him. Trial Court Opinion, 4/3/14, at 2. Second, the trial court avers that under Section 1106(c)(3) it may amend the restitution
Our cases clearly state that a criminal defendant cannot agree to an illegal sentence, so the fact that the illegality was a term of his plea bargain is of no legal significance. See Commonwealth v. Langston, 904 A.2d 917, 921 n. 2 (Pa.Super.2006) (stating, "[w]here a defendant has agreed to an allegedly illegal sentence, he or she is not thereafter precluded from raising the issue on appeal[ ]"). Furthermore, although it is true that a restitution order may be amended by a trial court "at any time" under Section 1106(c)(3), this presupposes that there is a legal restitution order to amend in the first place. We agree with the parties that the original restitution order was itself illegal. Therefore, there was no valid restitution for the trial court to amend in December 2013.
Having determined that the trial court's restitution order was illegal, we now turn to the question of remedy, which is the only point of disagreement between Appellant and the Commonwealth. Appellant requests that we order him discharged from any restitution obligation, or in the alternative, remand for a rehearing and imposition of a new order. Appellant's Brief at 21. The Commonwealth argues the only appropriate remedy is "to allow the trial court to correct the illegal sentence by remanding the case for a new sentencing hearing in which restitution can be properly set." Commonwealth's Brief at 6-7.
At the outset, we note Appellant has not cited any authority for the proposition that a defendant should be discharged from restitution if the trial court imposes an illegal restitution order. Furthermore, our cases have rejected this argument previously. See Mariani, supra at 487 (stating the remedy as "remand[ing] for resentencing rather than vacating the restitution order as Appellant insists is appropriate[ ]"); Deshong, supra (agreeing with the Commonwealth that because the "disposition apparently alter[ed] the sentencing scheme of the trial court, we must vacate the sentence and remand for resentencing[ ]") (internal quotation marks omitted). As a result, we agree with the Commonwealth that the appropriate remedy is for the trial court to have an opportunity to impose a new restitution order. Therefore, on remand, the trial court shall vacate the restitution order and conduct a new sentencing hearing, limited to the issue of restitution consistent with Section 1106 and our cases.
Based on the foregoing, we conclude the trial court erred when it denied Appellant's motion, as its original restitution order was illegal.
Order reversed. Case remanded. Jurisdiction relinquished.
However, in this case, there were no submissions made by any party to the trial court at the time of the entry of the $1.00 interim value. The record reveals that no party intended for Appellant to only owe $1.00 in restitution. Furthermore, the trial court acknowledged it intended the $1.00 figure to be merely an interim value because at a later hearing, the trial court stated that "at the time of sentencing, restitution