RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Brief Header
3. Statement of the Case
4. Statutory Framework
5. Victim Information
6. Disputed Restitution Amount
7. Defense Arguments
8. Proposed Alternative Amount
9. Ability-to-Pay Analysis
10. Payment Plan Proposal
11. Legal Authority
12. Conclusion
13. Certificate of Service

Caption

IN THE COURT OF COMMON PLEAS OF [________________________________] COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
Pa. Attorney ID No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of [________________________________].

On [__/__/____], the Defendant was [convicted by plea / convicted at trial] of the following offense(s):

On [__/__/____], the Court sentenced the Defendant to [________________________________].

Statutory Framework

18 Pa.C.S. Section 1106 governs restitution in Pennsylvania criminal cases.

• Mandatory Restitution: Under 18 Pa.C.S. 1106(a), upon conviction for any crime wherein property has been stolen, converted, or otherwise unlawfully obtained, or its value substantially decreased, or loss of income or property has been suffered by the victim, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

• Restitution Hearing: Under Pa.R.Crim.P. 705.1, the court may conduct a separate restitution hearing. If the parties dispute the amount, the court shall hear evidence and make findings.

• Inability to Pay: Under 18 Pa.C.S. 1106(c)(2), the court shall not order incarceration for failure to pay restitution if the failure results from the offender's inability to pay.

• Types of Recoverable Losses: Under 18 Pa.C.S. 1106(a), restitution may include the return of the property stolen or its value, out-of-pocket expenses for damage or loss, and expenses incurred for treatment of injuries.

Victim Information

Disputed Restitution Amount

Defense Arguments

A. Causation

[________________________________]

B. Amount Calculation Errors

[________________________________]

C. Inability to Pay

[________________________________]

D. Speculative Damages

[________________________________]

E. Insurance Coverage Offset

☐ Victim received insurance proceeds of $[________________________________]
☐ Insurance claim pending for $[________________________________]
☐ No insurance coverage applicable

[________________________________]

F. Collateral Source

[________________________________]

Proposed Alternative Amount

Based on the foregoing arguments, the Defense respectfully proposes a total restitution amount of $[________________________________], calculated as follows:

Ability-to-Pay Analysis

Income

Assets

Monthly Obligations

Net Monthly Disposable Income: $[________________________________]

Payment Plan Proposal

The Defendant respectfully proposes the following payment plan:

• Total Restitution Amount: $[________________________________]
• Initial Lump Sum Payment: $[________________________________] (if applicable)
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority

1. Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992) -- Restitution must have a direct causal connection to the offense of conviction; the court may not order restitution for unrelated losses.

2. Commonwealth v. Atanasio, 997 A.2d 1181 (Pa. Super. 2010) -- The court must consider the defendant's ability to pay when imposing restitution; failure to do so is reversible error.

3. Commonwealth v. Kinard, 95 A.3d 279 (Pa. Super. 2014) -- Restitution must be based on actual, ascertainable losses, not speculative damages.

4. Commonwealth v. Balisteri, 2016 PA Super 103 -- The Commonwealth bears the burden of establishing the amount of loss with reasonable specificity.

5. 18 Pa.C.S. 1106 -- Establishes mandatory restitution, types of recoverable losses, payment procedures, and enforcement mechanisms.

6. Pa.R.Crim.P. 705.1 -- Governs restitution hearing procedures, including notice and evidence requirements.

Conclusion

For the foregoing reasons, the Defense respectfully requests that this Court:

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Exclude speculative and unsupported damages from the restitution order;
☐ Credit insurance proceeds and collateral source payments against the restitution amount;
☐ Approve the proposed payment plan as set forth herein;
☐ Grant such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
Attorney for Defendant
Pa. Attorney ID No. [________________________________]

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

District Attorney's Office:
[________________________________]
[________________________________]
[________________________________]

Victim(s) / Victim's Attorney (if applicable):
[________________________________]
[________________________________]
[________________________________]

Dated: [__/__/____]

________________________________________
[________________________________]

Pennsylvania-Specific Notes

• Mandatory vs. Discretionary: Restitution is mandatory under 18 Pa.C.S. 1106(a) upon conviction for any crime resulting in property loss, damage, or personal injury. The court "shall" order restitution.
• Standard of Proof: Preponderance of the evidence. The Commonwealth must establish the amount with reasonable specificity.
• Appellate Review: Reviewed for abuse of discretion. The Superior Court examines whether the restitution amount is supported by the record and whether the court properly considered the defendant's ability to pay.
• Enforcement: The probation department must notify the court within 20 days of failure to pay (18 Pa.C.S. 1106(c)(1)). The court then holds a hearing to determine if contempt or a probation/parole violation has occurred.
• Inability to Pay Protection: Under 18 Pa.C.S. 1106(c)(2), the court cannot order incarceration for failure to pay if the failure results from the offender's inability to pay.
• Magisterial District Judge Cases: If the defendant fails to pay restitution within 20 days in a magisterial district court case, the judge must declare contempt and forward the case to the Court of Common Pleas.