Commonwealth v. Gardner
Commonwealth v. Gardner
Opinion of the Court
The defendant was charged with simple assault, terroristic threats, and possession of a prohibitive offensive weapon. As a result of negotiations, a plea agreement was reached. In compliance with that agreement, a hearing was held to accept the defendant’s guilty plea and impose sentence. Part of the sentence included a restitution order. It is with that portion of the sentence the defendant objects. He claims that the evidence was insufficient to establish the amount of restitution claimed and the defendant’s ability to pay. We affirm.
The Commonwealth first argues that the defendant’s appeal should be dismissed for failure to comply with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f) which implement 42 Pa.C.S. § 9781(b) dealing with appeals from the discretionary aspects of sentencing. However, this appeal does not involve a discretionary sentencing question. If the question on appeal was whether the trial court should have imposed a restitution requirement as part of the sentencing scheme, the Commonwealth would be correct in its view of the issue as a discretionary sentencing matter. Clearly the decision to impose or not impose restitution is within the trial court’s discretion.
However, where, as here, the issue is the sufficiency Of the evidence presented at sentencing to justify the amount of the award and the ability of the defendant to pay, the discretionary aspects of sentencing are not implicated. Therefore, there is no requirement to follow the dictates of Tuladziecki, and Pa.R.A.P. 2119(f). See Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415 (1992).
Judgment of sentence affirmed, jurisdiction relinquished.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.