J-A09031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW WAYNE MITCHELL
Appellant No. 1804 EDA 2014
Appeal from the Order dated May 21, 2014
In the Court of Common Pleas of Pike County
Criminal Division at No: CP-52-CR-0000406-2013
BEFORE: BOWES, DONOHUE, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015
Appellant Matthew Wayne Mitchell appeals from the May 21, 2014
order of the Court of Common Pleas of Pike County (“trial court”), which
granted the Commonwealth’s motion to modify the amount of restitution
imposed. Upon review, we vacate the order and remand the matter to the
trial court for issuance of a new order in compliance with Pa.C.S.A.
§ 1106(c)(3).
The facts and procedural history underlying this case are uncontested.
Briefly, in addition to breaking into a residential structure, Appellant along
with his co-defendants “stole a silver in color 2005 GMC Canyon . . . and
drove it away[.]” Affidavit of Probable Cause, 8/14/13, at ¶ 4. Appellant
and his co-defendants “then traveled in the stolen GMC pickup truck to a
tributary water near Lake Wallenpaupack[,] placed a rock on the gas pedal
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of the vehicle and watched the vehicle travel into the water and submerge
out of sight.” Id. January 2, 2014, Appellant pled guilty to burglary under
Section 3502(a)(2) of the Crimes Code (“Code”), 18 Pa.C.S.A. § 3502(a)(2),
and two counts of theft by unlawful taking under Section 3921(a) of the
Code, 18 Pa.C.S.A. § 3921(a) at docket no. 406-2013.1 On February 21,
2014, the trial court sentenced Appellant to an aggregate term of 18 to 36
months’ imprisonment for the foregoing crimes at docket no. 406-2013.
Additionally, the trial court imposed upon Appellant, jointly and severally
with his co-defendants, restitution for $800.00. Appellant did not appeal the
judgment of sentence. On April 8, 2014, the Commonwealth filed a motion
titled “Recommendation of Restitution” under 18 Pa.C.S.A. § 1106(c)(3),
requesting the trial court to modify the amount of restitution imposed to
include $25,445.59 to the victim Nationwide Insurance (“Nationwide”) in
connection with the GMC truck. Following a hearing, on May 21, 2014 the
trial court granted the Commonwealth’s modification request. Appellant filed
a timely appeal. Following Appellant’s filing of a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, the trial court issued its
Pa.R.A.P. 1925(a) opinion, addressing, inter alia, Appellant’s challenge to the
trial court’s modification of restitution imposed.
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1
Appellant also pled guilty to theft by unlawful taking at docket no. 413-
2013 and theft by unlawful taking and defiant trespass at docket no. 567-
213.
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On appeal, Appellant essentially raises two arguments for our review.
First, Appellant argues the trial court erred in granting the Commonwealth’s
motion for modification of restitution because the Commonwealth could have
known at the time of sentencing that the amount of restitution sought was
subject to modification. Second, Appellant argues the trial court failed to
comply with 18 Pa.C.S.A. § 1106(c)(3) to the extent it did not provide on
the record its reasons for modification of restitution imposed.
Because Appellant’s arguments relate solely to the legality of
sentence, our standard of review is de novo and our scope of review is
plenary. See Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super.
2014).
Appellant first argues the trial court erred in modifying the restitution
imposed because the Commonwealth could have ascertained prior to, or at
the time of, sentencing Nationwide’s claim for restitution. In support of his
argument, Appellant relies on Commonwealth v. Ortiz, 854 A.2d 1280
(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1145 (Pa. 2004). In
Ortiz, we determined an amendment to a restitution sentence entered more
than 30 days after the original sentence imposed is appropriate only where it
is based on “something that was not known and could not have been
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reasonably ascertained at the time of the original order was entered.”2 Id.
at 1283.
In Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009), however,
our Supreme Court expressly rejected the notion that facts supporting a
restitution amendment “must embody something that was not known and
could not have been reasonably ascertained at the time the original order
was entered.” Dietrich, 970 A.2d at 1135. The Court explained:
The plain language of § 1106(c)(3) provides courts with broad
authority to modify restitution amounts at any time if the court
states reasons for doing so as a matter of record. 18 Pa.C.S.[A.]
§ 1106(c)(3) (emphasis added). There is no statutory
requirement the reasons for modification be
undiscoverable at the time of sentencing. Section
1106(c)(3)’s broad language indicates a legislative intent that
courts have jurisdiction to modify restitution orders at any time
without regard to when information should have been present
for consideration. Id.; cf. 42 Pa.C.S.[A.] § 5505.
Id. (bolded emphasis added). Based on the Court’s rationale in Dietrich,
Appellant first argument is devoid of merit. The trial court was not required
to deny the Commonwealth’s motion for modification of restitution imposed
simply because the Commonwealth could have ascertained Nationwide’s loss
prior to, or at the time of, sentencing.
Appellant next argues the trial court erred in modifying the amount of
restitution imposed without providing its reasons for so doing as a matter of
record. We agree.
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2
Appellant does not argue the trial court lacked jurisdiction to modify the
amount of restitution imposed 30 days after sentencing.
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The Crimes Code provides restitution may be altered or amended at
any time provided that the court gives its reasons and conclusions for
any change on the record.3 See 18 Pa.C.S.A. § 1106(c)(3); see also
Dietrich, 970 A.2d at 1135 (noting “a sentencing court may modify
restitution orders at any time if the court states its reasons as a matter of
record”). The Supreme Court in Dietrich applied Section 1106(c)(3) and
concluded that the trial court erred in failing to give its reasons for
modification of restitution on the record. Id. As a result, the Court vacated
the restitution order and remanded the matter to the trial court for
resentencing. Id.
Instantly, the record plainly reveals the trial court, like the trial court
in Dietrich, failed to provide on the record its reasons for modifying the
amount of restitution imposed to include restitution in favor Nationwide for
$25,445.59. Accordingly, under Dietrich, we must vacate the May 21, 2014
order and remand this case to the trial court for issuance of a new order in
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3
Section 1106(C), relating to mandatory restitution, provides in pertinent
part:
(3) The court may, at any time or upon the recommendation of
the district attorney that is based on information received from
the victim . . . 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.
18 Pa.C.S.A. § 1106(c)(3).
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accordance with 18 Pa.C.S.A. § 1106(c)(3). Specifically, on remand, the
trial court is directed to provide its reasons for modification on the record.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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