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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
DEBRA MARIE SYCK, :
:
Appellant :
: No. 1008 WDA 2015
Appeal from the Judgment of Sentence March 9, 2015
in the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0012548-2014
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 17, 2016
Appellant, Debra Marie Syck, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas following her guilty
plea to one count of theft property lost, mislaid or delivered by mistake1 and
one count of receiving stolen property.2 Appellant contends the trial court
erred in modifying the restitution order to the victim over thirty days after
sentencing in violation of 18 Pa.C.S. § 1106(c)(3) and 42 Pa.C.S. § 5505.
We vacate the modified restitution order and remand for a new sentencing
hearing limited to the issue of restitution.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3924.
2
18 Pa.C.S. § 3925(a).
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On March 9, 2015, following her guilty plea, Appellant was sentenced
to two years’ probation3 and ordered to pay restitution in the amount of
$1,000. On April 14, 2015, the Commonwealth filed a motion to amend the
restitution order. On May 28, 2015, the court entered an order modifying
the restitution order to reflect an amount of $7,761.09. The court did not
offer any reasons for the modification in its order. This timely appeal
followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal and the trial court filed a responsive opinion.
Appellant raises the following issue for our review:
I. Did the trial court err in granting the Commonwealth’s
motion to amend the restitution order, as the trial court
granted the Commonwealth’s motion without placing any
reasons on the record, the Commonwealth filed the motion
to amend, and the trial court granted that motion, over 30
days after sentencing in violation of 18 Pa.C.S.A. §
1106(c)(3) and 42 Pa.C.S.A. § 5505.
Appellant’s Brief at 5.
Appellant contends the trial court erred in modifying the restitution
order without giving the reasons for the modification on the record. Id. at
11. Because the modified order was entered more than thirty days after the
3
The docket indicates that the trial court sentenced Appellant to no further
penalty for Count 2.
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initial order was entered, Appellant contends it violated 18 Pa.C.S. §
1106(c)(3)4 and 42 Pa.C.S. § 5505.5 We agree.
Our review is governed by the following principles:
In the context of criminal proceedings, an order of
restitution is not simply an award of damages, but, rather,
a sentence. An 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. The determination as to whether
the trial court imposed an illegal sentence is a question of
law; our standard of review in cases dealing with questions
of law is plenary.
4
Section 1106(c)(3) provides:
(3) 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.
18 Pa.C.S. § 1106(c)(3).
5
Section 5505 provides:
Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.
42 Pa.C.S. § 5505.
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Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012)
(quotation marks and citations omitted).
In Commonwealth v. McKee, 38 A.3d 879 (Pa. Super. 2012), this
Court addressed the issue of the timeliness of the modification of a
restitution order.
We are cognizant that at first blush, any modification of
the original restitution order would appear to violate
Section 5505 of the Judicial Code . . . . However, as noted
by our Supreme Court in Commonwealth v. Dietrich, [ ]
970 A.2d 1131 ([Pa.] 2009), Section 1106(c)(3) of the
Crimes Code authorizes a sentencing court to modify
restitution orders at any time provided the court states
its reasons as a matter of record. See id. [ ] at 1135
(citing 18 Pa. Cons. Stat. Ann. § 1106(c)(3)). The Court in
Dietrich further determined that “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. [ ] at 1135 (emphasis
added).
Id. at 881-82 (footnote omitted and some emphasis added). In the case
sub judice, the trial court erred as a matter of law in amending the
restitution order without stating its reasons. See id.
Next, we consider the remedy. In Commonwealth v. Gentry, 101
A.3d 813 (Pa. Super. 2014), this Court opined:
[The a]ppellant has not cited any authority for the
proposition that a defendant should be discharged from
restitution if the trial court imposes an illegal restitution
order. Furthermore, our cases have rejected this
argument previously. See [Commonwealth v.] Mariani,
[869 A.2d 484, 487 (Pa. Super. 2005)] (stating the
remedy as “remand[ing] for resentencing rather than
vacating the restitution order as [the a]ppellant insists is
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appropriate[ ]”); [Commonwealth v.] Deshong, [850
A.2d 712, 716 (Pa. Super. 2004).] (agreeing with the
Commonwealth that because the “disposition apparently
alter[ed] the sentencing scheme of the trial court, we must
vacate the sentence and remand for resentencing[ ]”)
(internal quotation marks omitted). As a result, we agree
with the Commonwealth that the appropriate remedy is for
the trial court to have an opportunity to impose a new
restitution order.
Id. at 819. Analogously, in the instant case, we vacate the modified
restitution order and remand for the trial court to conduct a new sentencing
hearing limited to the issue of restitution. See id.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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