Com. v. Milazzo, R.

J-S63018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT M. MILAZZO
Appellant No. 429 EDA 2015
Appeal from the Judgment of Sentence December 30, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000687-2012
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 04, 2015
Appellant, Robert M. Milazzo, appeals from the December 30, 2014
sentence of nine to twenty-three months’ imprisonment, plus restitution in
the amount of $153,693.49, following his guilty plea to one count of
burglary.1 After careful review, we affirm.
The trial court provided the relevant procedural history of this case as
follows.
On May 1[7], 2013, [Appellant] pled guilty to
Count I of the criminal information, [b]urglary,
graded as a felony of the second degree. The
offense involved the large scale theft of a jewelry
store. On May 1[7], 2013, th[e trial c]ourt
sentenced [Appellant] to a term of incarceration for a
period of not less than 9 months with a maximum
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1
18 Pa.C.S.A. § 3502(a).
J-S63018-15
not to exceed 23 months. A restitution hearing was
requested and held on August 29, 2013. On
November 27, 2013, th[e trial c]ourt ordered
[Appellant] to pay restitution to the victim in the
amount of $153,693.49. Thereafter, on December
27, 2013, [Appellant] filed his [n]otice of [a]ppeal to
the Pennsylvania Superior Court (“Superior Court”).
On November 25, 2014, the Superior Court filed a
non-precedential decision which remanded this case
back to th[e trial c]ourt for resentencing.[2] … [T]he
Superior Court remanded the matter back to th[e
trial c]ourt because the judgment of sentence failed
to specify the exact amount of restitution imposed.
Trial Court Opinion, 3/30/15, at 1-2.3
On December 30, 2014, in accordance with the directive of this Court,
the trial court re-sentenced Appellant to a period of imprisonment of nine to
twenty-three months and to pay restitution in the amount of $153,693.49.
On January 9, 2015, Appellant filed a motion to reconsider sentence, and the
trial court denied said motion on January 12, 2015. On February 10, 2015,
Appellant filed a timely notice of appeal.4
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2
Commonwealth v. Milazzo, 113 A.3d 358 (Pa. Super. 2014)
(unpublished memorandum).
3
The trial court opinion does not contain pagination. For ease of reference,
we have assigned each page a corresponding page number.
4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
At the time the trial court re-sentenced Appellant, it imposed the same
sentence of imprisonment initially imposed but noted that at the time of re-
sentencing, Appellant had served his term of incarceration. Trial Court
Order, 12/30/14, at 2. Therefore, the trial court ordered discharge subject
(Footnote Continued Next Page)
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J-S63018-15
On appeal, Appellant presents the following issue for our
consideration.
I. Whether the [trial] court erred in imposing an
illegal sentence for restitution in an amount not
supported by the record?
Appellant’s Brief at 4.
We acknowledge, “[a]n appeal from an order of restitution based upon
a claim that a restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing.”
Commonwealth v. Stradley, 50 A.3d 769, 771-772 (Pa. Super. 2012)
(internal quotation marks and citations omitted). “Issues relating to the
legality of a sentence are questions of law[; as a result o]ur standard of
review over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014) (citation
omitted). However, before we may proceed to an analysis on the merits, we
must first examine whether the law of the case doctrine precludes our
review. See Commonwealth v. Schultz, 116 A.3d 1116, 1122 (Pa. Super.
2015).
As noted, Appellant filed a notice of appeal from the trial court’s
original order for restitution on December 27, 2013, and this Court
_______________________
(Footnote Continued)
to the requirement to pay restitution. Id. Appellant only challenges the
restitution portion of his sentence.
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considered said appeal. In that appeal, Appellant advanced precisely the
same issue as he presents in the instant appeal. Specifically, in the prior
appeal, Appellant sought review of the following issue “[w]hether the court
erred in imposing an illegal sentence for restitution in an amount not
supported by the record[?]” Milazzo, supra at *6, quoting Appellant’s Brief
at 4. The prior panel thoroughly addressed Appellant’s argument and
concluded “the amount of restitution was supported by the record[.]” Id. at
*8. The panel then remanded this case for the sole purpose of “amend[ing
the sentence] to include the amount of restitution awarded on November 27,
2013[, i.e., $153,693.49.]” Id. at 12. On remand, the trial court re-
sentenced Appellant as directed, prompting the current appeal.
Our Supreme Court has articulated the following rules that embody the
law of the case doctrine.
(1) [U]pon remand for further proceedings, a trial
court may not alter the resolution of a legal question
previously decided by the appellate court in the
matter; (2) upon a second appeal, an appellate
court may not alter the resolution of a legal
question previously decided by the same
appellate court; and (3) upon transfer of a matter
between trial judges of coordinate jurisdiction, the
transferee trial court may not alter the resolution of
a legal question previously decided by the transferor
court.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis
added). This doctrine is important to our jurisprudence, as its application,
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inter alia, promotes consistency and uniformity in the law and protects the
expectations of the parties. See id.
Instantly, Appellant presents the same legal question in the present
appeal as the one he advanced in his prior appeal, i.e., whether the record
supports the amount of restitution imposed. Upon remand, the trial court
re-sentenced Appellant to pay restitution in the exact amount as the amount
Appellant complained of in his first appeal, consistent with this Court’s prior
instruction. Therefore, because the prior panel resolved the identical legal
question, we may not disrupt the previously resolved legal conclusion of this
Court. 5 See id.
Based on the foregoing, we conclude Appellant is not entitled to relief.
Accordingly, we affirm the trial court’s December 30, 2014 sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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5
We note Appellant’s argument supporting his claim of error is identical to
the one he presented in the prior appeal.
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