Com. v. Little, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEBRINA L. LITTLE,
Appellant No. 1178 WDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001823-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2015
Sebrina L. Little appeals from her judgment of sentence after she pled
guilty to burglary. Appellant’s sole challenge is to the trial court’s
modification of her restitution. After careful review, we affirm.
Appellant entered a guilty plea to one count of burglary on March 17,
2014.1 She admitted to being the driver of a vehicle for three separate
break-ins at residences where her co-defendant, Tyler Munion, a juvenile,
stole various items. The court initially sentenced Appellant, on May 27,
2014, to one to three years incarceration and issued an order for restitution.
That order directed Appellant to pay $3,240.94 in restitution to State Farm
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1
The Commonwealth agreed to consolidate three separate burglary counts
into a single charge.
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Insurance Company and $2,833.00 to David and Gloria Robinson. Within
thirty days of that order, on June 19, 2014, the Commonwealth filed a
motion to modify sentence nunc pro tunc. In doing so, the Commonwealth
sought to amend Appellant’s restitution. The trial court conducted a hearing
on June 26, 2014. The Commonwealth introduced evidence regarding the
value of various items, mostly jewelry, taken during Appellant’s burglary
spree. The court entered an amended restitution order directing Appellant
to pay restitution to Erie Insurance Company in the amount of $3,906.14
and $18,951.82 to Samuel and Isabelle Eakman. The restitution order for
the Robinson’s and State Farm were undisturbed.
Appellant timely appealed. The trial court directed Appellant to file
and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant complied, asserting that the sentencing court erred in
increasing her restitution to approximately $23,000 where the
Commonwealth’s motion “was untimely and unfair to the Defendant.” See
Pa.R.A.P. 1925(b) statement, 8/15/14. The trial court authored its opinion
and the matter is now ready for our review. Appellant’s issue is “[w]hether
the Sentence[ing] Court erred in granting the Commonwealth’s late request
to modify sentence by adding restitution to the original sentence[ing]
order?” Appellant’s brief at 5.
Initially, we note that “questions implicating the trial court's power to
impose restitution concern the legality of the sentence. Commonwealth v.
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Hall, 80 A.3d 1204, 1211 (Pa. 2013) (citing In re M.W., 725 A.2d 729, 731
n. 4 (Pa. 1999); Commonwealth v. Stetler, 95 A.3d 864, 888 n.6
(Pa.Super. 2014) (“challenges to the appropriateness of a sentence of
restitution are generally considered [c]hallenges to the legality of the
sentence.”). In contrast, where the claim is “that the restitution order is
excessive, it involves a discretionary aspect of sentencing.” In re M.W.,
supra at 731.
Appellant’s issue in her concise statement and the objection raised at
the restitution hearing were to the trial court’s authority to impose
restitution more than ten days after the judgment of sentence. Hence, such
an argument relates to the legality of her sentence. Accordingly, our
standard of review would be de novo and our scope of review is plenary.
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa.Super. 2014).
However, the argument Appellant levels on appeal relates to the trial court’s
alleged failure to provide reasons for its modification on the record. Claims
that a court failed to adequately state its reasons on the record for
sentencing have been held to implicate the discretionary aspects of a
sentence. See Commonwealth v. Coss, 695 A.2d 831 (Pa.Super. 1997);
Commonwealth v. Smicklo, 544 A.2d 1005 (Pa.Super. 1988) (en banc).
Nonetheless, insofar as Appellant’s claim can be read as an argument
that the increased restitution order is not supported by the record, prior
precedent acknowledges this to be a legality of sentence issue. In Interest
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of Dublinski, 695 A.2d 827, 829 (Pa.Super. 1997); compare
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.Super. 2012) (in a non-
restitution matter, this Court determined that an allegation that the record is
devoid of evidence supporting a sentence is not an illegal sentencing claim.).
Regardless, Appellant is entitled to no relief.
The Crimes Code provides that restitution may be altered or amended
at any time provided that the court gives its reasons and conclusions for any
change on the record. 18 Pa.C.S. § 1106(c)(3).2 Appellant argues that
pursuant to Commonwealth v. Ortiz, 854 A.2d 1280 (Pa.Super. 2004) (en
banc), the trial court erred in increasing her restitution by requiring
payments to additional victims. In Ortiz, the defendant entered a
negotiated guilty plea based on his theft of a car. As part of that plea, he
agreed to pay $159.00 in restitution. Seven and one-half months later, the
Commonwealth requested modification of restitution in the amount of
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2
18 Pa.C.S. § 1106(3) provides,
The court may, at any time or upon the recommendation of the
district attorney that is based on information received from the
victim and the probation section of the county or other agent
designated by the county commissioners of the county with the
approval of the president judge to collect restitution, alter or
amend any order of restitution made pursuant to paragraph (2),
provided, however, that the court states its reasons and
conclusions as a matter of record for any change or amendment
to any previous order.
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$1,188.21, based on damage to the car. The Commonwealth knew of this
amount within thirty days of the sentence. Noting that the case was not one
where a full hearing on restitution had occurred, see Ortiz, supra at 1282,
the Ortiz Court held, “because the amount of restitution should have been
known and revealed to the trial court prior to sentencing, the restitution was
part of a plea agreement, and there was no change in circumstances, it was
improper to modify the terms of the restitution.” Id. at 1284.
Appellant submits that although a discussion occurred at the
restitution hearing regarding the victim witness coordinator for the district
attorney’s office neglecting to provide the restitution information to the
prosecutor, the court did not mention this as the reason it altered
restitution. Additionally, Appellant maintains that, even if the court placed
on the record the above facts as grounds for its modification, the
Commonwealth knew the restitution information at sentencing because it
had provided this information relative to Appellant’s co-defendant. Thus,
according to Appellant, the Commonwealth had to present the restitution
information at that time.
The Commonwealth responds that Ortiz is inapposite. It notes that
the restitution amount was part of a negotiated guilty plea therein. The
Commonwealth adds that the prosecution in Ortiz knew at the time of the
guilty plea and original sentencing the increased amount it later sought via a
restitution hearing. Further, the Commonwealth highlights that the
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prosecution in Ortiz did not seek additional restitution for almost eight
months after the original sentence.
Here, the Commonwealth sought modification of restitution within
thirty days of the sentence. It points out that an administrative breakdown
caused it to not request additional restitution for other victims. Finally, the
Commonwealth asserts that it introduced evidence in support of the added
restitution via the testimony of Isabelle Eakman and the documentation she
supplied as to the value of items taken from her home.
We agree that Ortiz does not compel reversal. Unlike Ortiz, the
Commonwealth sought modification of restitution within thirty days of
sentencing. The parties did not negotiate the plea based on a set restitution
amount. The sentencing court plainly credited the testimony and values
placed on the items stolen submitted by Ms. Eakman. Indeed, Appellant did
not dispute “what was lost or the values or anything like that.” N.T.,
6/26/14. The court had authority under both 18 Pa.C.S. § 1106 and 42
Pa.C.S. § 5505, which authorizes the amendment of a final order within
thirty days when no appeal has been filed, to alter restitution. Since
Appellant did not contest the evidence relative to restitution, the court had
adequate grounds to modify the restitution.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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