Commonwealth v. Lowell Kenneth Thomas, II

Summary

The Pennsylvania Superior Court affirmed the dismissal of Lowell Kenneth Thomas, II’s motion challenging restitution as an untimely PCRA petition. The court held that the motion should have been considered under 18 Pa.C.S. § 1106(c)(3), which permits modification of restitution orders at any time, but affirmed because restitution was imposed as part of the sentence and the statute did not require consideration of the defendant’s ability to pay.

Holdings

1. A motion seeking modification of restitution imposed under 18 Pa.C.S. § 1106 may be filed directly with the trial court at any time under § 1106(c)(3) and is not subject to the PCRA's ordinary timeliness constraints.
2. Because restitution was imposed as part of Thomas's sentence rather than as a condition of probation, 18 Pa.C.S. § 1106 governed, and the sentencing court was required to impose full restitution without regard to Thomas's current financial resources.
3. The order dismissing Thomas's filing was affirmed because the record established that his underlying ability-to-pay claim presented no viable basis for relief.

Questions Presented

1. Whether the trial court erred by treating Thomas's motion to set aside his allegedly illegal sentence as an untimely petition under the Post Conviction Relief Act.
2. Whether 18 Pa.C.S. § 1106(c)(3) permitted Thomas to seek modification of the restitution order at any time outside the PCRA's timeliness requirements.
3. Whether the restitution order was improper because the sentencing court allegedly failed to consider Thomas's ability to pay under 42 Pa.C.S. § 9754.

Disposition

affirmed