Com. v. Rotola, J.

J-S61014-17
2017 Pa. Super. 348
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOHN MICHAEL ROTOLA,
Appellant No. 3678 EDA 2016
Appeal from the Judgment of Sentence September 20, 2016
in the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0000282-2016
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
DISSENTING STATEMENT BY PLATT, J.: FILED NOVEMBER 06, 2017
Because I believe that the trial court did not abuse its discretion with
respect to its order of restitution, I respectfully dissent. I would affirm the
judgment of sentence.
Appellant pleaded guilty to a one count of theft of property lost, mislaid,
or delivered, and was ordered to pay restitution to the victim in the amount
of $25,934.44, and to her insurance company in the amount of $120.27.
Appellant filed a motion to reconsider sentence concerning only the amount
of restitution. After a reconsideration of sentence hearing, the trial court
granted his motion and modified the restitution amount to $25,000.00, to be
paid jointly and severally with his co-defendant.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S61014-17
“An order of restitution is a sentence, and thus, the amount awarded is
within the sound discretion of the trial court and must be supported by the
record.” Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004)
(citation omitted).
I believe that the trial court’s order of restitution, imposed after the
restitution hearing, was within its discretion and supported by the record.
Therefore, I would affirm the judgment of sentence.1
Accordingly, I respectfully dissent.
____________________________________________
1 Furthermore, I do not believe that this Court has the authority to consider
the validity of Appellant’s plea sua sponte where he did not raise the issue,
and therefore has waived any challenge to the validity of his plea. See
Commonwealth v. Archer, 722 A.2d 203, 209-10 (Pa. Super. 2006) (en
banc) (“An appellate court can only pass upon the legal questions which come
before it.”) (citations omitted); Commonwealth v. Tareila, 895 A.2d 1266,
1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to challenge his guilty
plea in the trial court, he may not do so on appeal. In order to preserve an
issue related to the guilty plea, an appellant must either object[] at the
sentence colloquy or otherwise rais[e] the issue at the sentencing hearing or
through a post-sentence motion.”) (citations and internal quotation marks
omitted). Therefore, I disagree with the Majority’s consideration of the
validity of Appellant’s plea.
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