J-S61014-17

2017 PA Super 348

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN MICHAEL ROTOLA

Appellant No. 3678 EDA 2016

Appeal from the Judgment of Sentence September 20, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000282-2016

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

OPINION BY LAZARUS, J.: FILED NOVEMBER 06, 2017

John Michael Rotola appeals from the trial court’s judgment of 

sentence, entered in the Court of Common Pleas of Monroe County, following 

his open guilty plea to theft of property lost, mislaid or delivered by mistake 

(M-1),1 ordering him to serve 9-24 months’, less one day, imprisonment, 

and pay restitution in the amount of $25,000, jointly and severally with his 

co-defendant.2 After careful review, we vacate and remand.

The trial court summarized the relevant facts underlying this case as 

follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3924. 

2 The trial court also granted Rotola 57 days’ credit for time served.
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On October 25, 2015, Pocono Mountain Regional Police 

Department received a call from Theresa Mahoney[], regarding a 

theft at her residence, located at 191 Flame Drive, Tunkhannock 

Township, Monroe County. Theresa had arrived home to find her 

front door damaged and her television and $15,000-$20,000 

worth of jewelry missing. Mahoney advised officers that there 

had been multiple burglaries and thefts in the neighborhood 

since her neighbor Thomas Pollard [] moved in with his mother 

at 222 Flame Drive.

A database search on Leadsonline showed that a Thomas Pollard 

of 222 Flame Drive sold jewelry to P&J Coin and Gold Exchange 

in Broadheadsville, PA. Mahoney later identified several pieces 

of unique jewelry on display at the pawn shop as belonging to 

her and stolen from her residence. On November 11, 2015, a 

search warrant was served at Pollard’s residence. After the 

search was concluded, Detective Kenneth Lenning [] and 

Detective Ryan Venneman [] interviewed Pollard. Officers also 

spoke with community members in the development who 

advised . . . [Detective] Lenning that the police should look into 

Pollard’s brother, John Rotola, and Catherine McDonnell, both 

residents of the development.

A database search on Leadsonline showed that a Catherine 

McDonnell sold several pieces of jewelry to P&J Coin and Gold 

Exchange in Broadheadsville, PA. Mahoney was shown pictures 

of the various items sold to the pawn shop and identified all the 

pieces of jewelry as belonging to her and stolen from her 

residence. Mahoney also identified a heart-shaped pendant and 

ring on display at the pawn shop as belonging to her. A receipt 

on Leadsonline showed that Rebecca Heddy of Effort, PA had 

sold the jewelry to the pawn shop.

On November 11, 2015[,] Lenning received a call from 

[Defendant] advising him that he had some information for him 

regarding the recent burglaries in his neighborhood. Rotola 

advised Lenning and Venneman that he got himself wrapped up 

in the burglaries that were going on in the community. He 

stated that one night he was driving around the development 

with his brother, Pollard, when they ran into their friend Adam 

Lugo. Lugo asked Pollard if he would sell some jewelry for him. 

Pollard agreed and Rotola drove his brother to P&J Pawn shop 

where they sold the jewelry. The next day Rotola noticed some 

jewelry inside his truck. After asking around to see if any of his 

friends left it in the truck, he decided it had probably fallen out 
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of the bag of jewelry his brother had the day before. Rotola 

asked his friend Catherine McDonnell to go with him to the pawn 

shop and sell the jewelry for him because he did not have any 

identification. Rotola admitted that he drove McDonnell to the 

pawn shop on two separate occasions to sell the jewelry he 

found.

On November 13, 2015, Lenning and Venneman interviewed 

Rebecca Heddy at her residence. Heddy stated that she received 

a phone call from Rotola asking her to come to his residence 

because he had something to talk to her about. Heddy stated 

that Rotola told her that he needed money to feed his children 

and asked if she would sell some of his wife’s jewelry. Heddy 

agreed to give Rotola $50 in exchange for the bag of jewelry 

which she later sold for over $200 to P&J Pawn Shop.

Trial Court Opinion, 1/17/17, at 1-3.

On June 27, 2016, Rotola pled guilty to one count of theft of property, 

lost, mislaid, or delivered by mistake. On September 19, 2016, Rotola was 

sentenced to 9-24 months’, minus one day, incarceration in the Monroe 

County Correctional Facility and ordered to pay $25,934.44 in restitution to 

the victim and $120.27 to American Modern Insurance Group. On 

September 29, 2016, Rotola filed a motion to reconsider sentence requesting 

amendment of the restitution amount. On October 31, 2016, after a 

hearing, the court granted Rotola’s motion and modified the restitution 

portion of Rotola’s sentence to $25,000, jointly and severally with his codefendant.3

____________________________________________

3

 In modifying the restitution part of Rotola’s sentence, the court noted that 

in the criminal information Rotola was charged with theft, where the stolen 

property was valued at more than $2,000. N.T. Reconsideration of Sentence 

Hearing, 10/31/16, at 3; Criminal Information, 7/7/16, at 1.
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Rotola filed a timely notice of appeal and court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. On appeal, 

Rotola presents a single issue for our review: Whether the lower court 

abused its discretion at the time of sentencing by ordering that [Rotola] pay 

restitution in an amount that was [neither] commensurate with his degree of 

criminality nor supported by the record?

“Although an award of restitution lies within the discretion of the [trial] 

court, it should not be speculative or excessive and we must vacate a 

restitution [o]rder which is not supported by the record.” Commonwealth 

v. Balisteri, 478 A.2d 5, 9 (Pa. Super. 1984). Mandatory restitution, as 

part of a defendant’s sentence, is authorized by 18 Pa.C.S. § 1106, which 

states, in relevant part:

§ 1106. Restitution for injuries to person or property 

(a) GENERAL RULE.-- Upon 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, the offender shall 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. 

* * *
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(2) At the time of sentencing the court shall specify the 

amount and method of restitution. In determining the 

amount and method of restitution, the court: 

(i) Shall consider the extent of injury suffered by the 

victim, the victim’s request for restitution . . . and such 

other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly 

installments or according to such other schedule as it 

deems just. 

* * *

(4)

(i) It shall be the responsibility of the district attorneys 

of the respective counties to make a recommendation 

to the court at or prior to the time of sentencing as to 

the amount of restitution to be ordered. This 

recommendation shall be based upon information 

solicited by the district attorney and received from the 

victim.

(ii) Where the district attorney has solicited information 

from the victims as provided in subparagraph (i) and 

has received no response, the district attorney shall, 

based on other available information, make a 

recommendation to the court for restitution. 

18 Pa.C.S. § 1106. 

An appeal from an order of restitution based upon a claim that it is 

unsupported by the record challenges the legality, rather than the 

discretionary aspects, of sentencing; as such, it is a non-waivable matter. 

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010); 

Commonwealth v. Daniels, 656 A.2d 539 (Pa. Super. 1994). The 

determination as to whether a trial court imposed an illegal sentence is a 

question of law; an appellate court’s standard of review in cases dealing with 

questions of law is plenary. Id.
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Rotola claims that the amount of restitution ordered by the trial court 

is neither supported by the record nor a direct result of his conduct. 

Specifically, he asserts that there was no nexus to the offense for which he 

pled guilty and the amount ordered, where he was not responsible for the 

burglary that led to the victim’s loss. Rather, he claims that he merely “sold 

a relatively small portion of the items stolen from the victim to a pawn 

shop.” Appellant’s Brief, at 9.

In Commonwealth v. Reed, 543 A.2d 587 (Pa. Super. 1988), our 

Court vacated a defendant’s restitution sentence of $6,205.71 because 

“there was no evidence to show a causal connection between the total losses 

sustained [by the victim] and [the defendant’s] role in receiving some of the 

property stolen.” Id. at 589. In Reed, the bills of information listed the 

property stolen and the estimated value of each item. In total, the evidence 

showed that the loss caused by defendant’s conduct did not exceed $480.00. 

Accordingly, the Court determined that the order of restitution was illegal 

because it was not supported by the record, and it vacated the defendant’s 

sentence. Id. at 590.

Here, by selling the victim’s jewelry to a pawn shop, Rotola caused the 

victim’s property to be unlawfully obtained; thus, pursuant to section 1106, 

restitution is mandatory. When imposed as a sentence, the injury to 

property or person for which restitution is ordered must directly result from 

the crime. 18 Pa.C.S. § 1106(a). While Rotola may feel that he is less 

culpable for the loss caused to the victim because he did not actually break 
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into the victim’s home and steal her possessions, as the trial court noted, 

Rotola and Pollard acted together criminally to cause a single harm to the 

victim and, accordingly, properly ordered that Rotola make restitution jointly 

and severally with his co-defendant.

However, even where the injury to the victim may have directly 

resulted from a defendant’s criminal acts, it is still necessary that “the 

amount of the ‘full restitution’ be determined under the adversarial system 

with considerations of due process.” Commonwealth v. Atanasio, 997 

A.2d 1181, 1183 (Pa. Super. 2010). Here, Rotola entered into an open 

guilty plea, specifically indicating in his written colloquy that “there are no 

agreements for sentencing except for [the Commonwealth withdrawing 

remaining charges].” Written Guilty Plea Colloquy, 6/23/16, at ¶¶ 4, 8. 

Moreover, the written plea only informs Rotola about the maximum penalty 

and offense grading for his charged offense, theft (18 Pa.C.S § 3924) and 

the sentencing guideline ranges for the offense. Id. Nowhere in the entire 

plea agreement, however, is restitution mentioned. Furthermore, the docket 

does not reflect that an oral plea colloquy or a restitution hearing was ever 

held. 

Although a plea agreement occurs in a criminal context, it 

remains contractual in nature and is to be analyzed under 

contract-law standards. Furthermore, disputes over any 

particular term of a plea agreement must be resolved by 

objective standards. A determination of exactly what promises 

constitute the plea bargain must be based upon the totality of 

the surrounding circumstances and involves a case-by-case 

adjudication.
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Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) 

(citations omitted). 

In Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006), the 

defendant, who had also pled guilty to theft offenses, directly challenged his 

restitution sentence, ordered jointly and severally with co-defendants. In 

Rush, the defendant “was made fully aware, prior to entering the plea, that 

the court would impose a specific amount of restitution upon acceptance of 

the plea, and whereby the defendant agreed to accept restitution set in a codefendant’s case for the same crime.” Id. at 808. Specifically, the trial 

judge notified the defendant, in open court, of his intention, upon 

acceptance of the plea, to impose the restitution jointly and severally with 

his co-defendant. Id. at 809. At the conclusion of the colloquy proceeding, 

the Commonwealth recited its recommended sentence, including the joint 

and several restitution sentence. Id. In concluding that the restitution 

sentence was legal, the court noted that the defendant “had a full 

understanding of the nature and consequences of his plea and . . . knowingly 

and voluntarily decided to enter the plea ‘which encompassed an agreement 

to pay $28,450 in restitution’ [and where] the amount in restitution was 

already established and agreed-upon as stipulated in the written plea 

petition as well as on the record orally at the plea hearing.” Id. (emphasis 

added).

In finding that the amount of restitution was supported by the record, 

the Rush Court noted that the trial judge had also presided over the 
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evidentiary hearing held in regard to the restitution owed by the codefendant who was an accomplice to the crimes. In addition, our Court 

recognized that before the defendant entered his guilty plea, the trial judge 

had “clearly explained that the victim’s testimony, as to the value of the 

stolen property, supported restitution in the amount at issue.” Id.

Here, the court did not make Rotola fully aware, as part of his guilty 

plea, that it would impose mandatory restitution as part of his sentence. At 

the sentencing hearing, the court did not state the amount and method of 

restitution on the record, prior to entering its sentencing order, and the 

Commonwealth did not make a recommendation to the court, at or prior to 

the time of sentencing, as to the amount of restitution to be ordered or 

enter evidence to support the amount of the victim’s losses. See 18 Pa.C.S. 

§ 1106(c)(3)(i). 

Under such circumstances where there is nothing in the record 

indicating that Rotola was apprised of the fact that mandatory restitution 

would be imposed as part of his direct, criminal sentence, and where there is 

no support for the amount ordered, we question the voluntary, knowing and 

intelligent nature of Rotola’s plea.4 See Daniels, supra (where ADA did not 

____________________________________________

4 Pursuant to Pa.R.Crim.P. 590, in order to ensure a voluntary, knowing and 

intelligent plea, our Supreme Court has required that the trial court ask the 

following questions at the time of the guilty plea: the nature of the charges 

to which defendant is pleading guilty; a factual basis for the plea; that the 

defendant is presumed innocent until proven guilty; that the defendant is 

aware of permissible ranges of sentences and/or fines for offenses charged; 

(Footnote Continued Next Page)
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state on record that plea bargain involved $5,000 fine and where there was 

nothing in record showing defendant was informed that mandatory minimum 

sentencing provision required both imprisonment and fine, judgment of 

sentence vacated because court was not justified in accepting defendant’s 

guilty plea). We remind the trial court that while full restitution under 

section 1106(c) is mandatory, it is still necessary that defendants agree to 

restitution, as part of the plea bargaining process, openly on the record. 

Commonwealth v. Anderson, 995 A.2d 184 (Pa. super. 2010) (plea 

agreement remains contractual in nature; promises constituting plea bargain 

must be based upon totality of surrounding circumstances); Kroh, supra. 

We recognize that this is not a case where the trial court failed to 

specify the exact amount of restitution, delegated the duties to set 

restitution to an agency, or left the amount of restitution open to further 

review and adjustment. See Commonwealth v. Gentry, 101 A.3d 813 

(Pa. Super. 2014); Commonwealth v. Mariani, 869 A.2d 484 (Pa. Super. 

2005); Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004). 

Under such cases, a reviewing court would simply vacate the restitution 

portion of a defendant’s sentence and remand for resentencing. Here, the 

(Footnote Continued) _______________________

aware that judge is not bound by terms of plea agreement tendered unless 

judge accepts agreement. Because section 1106(a) restitution is 

mandatory, the trial court should have made Rotola aware of this prescribed 

punishment in his plea agreement. 
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very integrity of Rotola’s plea is undermined where he was never informed 

that restitution was mandated upon his theft conviction. Accordingly, we 

vacate Rotola’s judgment of sentence and remand for trial. Rush, supra.

5

Judgment of sentence vacated; case remanded for proceedings 

consistent with this decision. Jurisdiction relinquished.

Judge Ransom joins the Opinion.

Judge Platt files a Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2017

____________________________________________

5 We note that Rotola’s ability to pay is irrelevant to his restitution sentence 

where the court does not need to consider a defendant’s ability to pay at the 

time it imposes restitution. Rush, supra. Rather, the defendant’s ability is 

only considered upon default. Commonwealth v. Colon, 708 A.2d 1279 

(Pa. Super. 1998).