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Commonwealth v. Opperman

In a DUI and vehicular homicide case, judgment of consecutive sentences vacated because judgment violated the merger doctrine; order directing defendant to pay restitution to insurance company vacated as illegal because such payment was not provided for by criminal restitution statute.

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OPINION

� 1 On November 3, 1999, Appellant pled guilty to Driving Under the Influence *fn1 (DUI) and Homicide by Vehicle While Driving Under the Influence. *fn2 On January 31, 2000 sentence was imposed whereby Appellant was ordered to serve a period of incarceration of 3-6 years for the Homicide by Vehicle While DUI and 48-96 hours for the DUI. On February 1, 2000, the trial court, sua sponte, amended the sentence to reflect that each count was to run consecutively. On February 4, 2000, the trial court entered an order scheduling a restitution hearing, which was ultimately held on July 19, 2000. As a result of the hearing, the trial court ordered that Appellant pay restitution to the following entities: $6,649.13 to the estate of Brian James Demarest, $12,788.89 to the Crime Victims Compensation Fund, and $44,500.00 to State Farm Insurance Company. *fn3 This order was entered on September 10, 2000. On October 6, 2000, Appellant filed a notice of appeal and complied with the court’s directive to file a concise statement of matters complained of on appeal.

� 2 Appellant presents two issues for our consideration: 1) whether the amended sentence order dated February 1, 2000 violated the merger doctrine and constitutes an illegal sentence in that it imposes a sentence for Driving Under the Influence consecutive to a sentence for Homicide by Vehicle While Driving Under the Influence; and 2) whether the trial court imposed an illegal sentence when it ordered restitution to an insurance company in a criminal case where said amounts included damages for “pain and suffering”? Appellant’s Brief, at 2.

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