J-S11039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY C. MOLITERNO, :
:
Appellant : No. 1242 EDA 2015
Appeal from the Judgment of Sentence February 5, 2015
in the Court of Common Pleas of Pike County,
Criminal Division, No(s): CP-52-CR-0000618-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 07, 2016
Anthony C. Moliterno (“Moliterno”) appeals from the judgment of
sentence imposed following his guilty plea to one count of theft by
deception. See 18 Pa.C.S.A. § 3922(a)(1). We affirm.
Moliterno was charged with two counts of theft by deception based
upon allegations that he fraudulently obtained two gift cards from Wal-Mart
in the amounts of $975.00 and $750.00. Moliterno entered into a
negotiated guilty plea wherein he would plead guilty to one count of theft by
deception, the sentence imposed would be in the standard range, and he
would agree to pay restitution on both counts. Thereafter, the trial court
sentenced Moliterno to twelve months minus one day to thirty-six months in
prison, ordered him to pay a fine of $500.00, and pay restitution to Wal-Mart
in the amount of $1,713.00. Moliterno filed a timely Post-Sentence Motion,
claiming, inter alia, that the amount of restitution was not supported by the
J-S11039-16
record. After a hearing, the trial court denied the Motion. Moliterno filed a
timely Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement.
On appeal, Moliterno raises the following question for our review:
“Whether the trial court erred and abused its discretion by failing to modify
its February 5, 2015 Sentencing Order to reflect that the total restitution
[Moliterno] owed to Wal-Mart is $1,057.00[?]” Brief for Appellant at 6.
[I]n 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.
Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013) (citation
omitted).1
Restitution, as part of a defendant’s sentence, is authorized by 18
Pa.C.S.A. § 1106, which provides, in relevant part, as follows:
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of
the crime, or wherein the victim suffered personal injury directly
resulting from the crime, the offender shall be sentenced to
1
Generally, upon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and the legality of the sentence imposed. See
Commonwealth v. Stradley, 50 A.3d 769, 771–72 (Pa. Super. 2012)
(stating that because “[the appellant’s] claim on appeal challenges the
legality of his sentence, [the] review [of the claim] is not abrogated by the
entry of his guilty plea.”).
-2-
J-S11039-16
make restitution in addition to the punishment prescribed
therefor.
***
(c) Mandatory restitution.
***
(2) At the time of sentencing[,] the court shall specify the
amount and method of restitution. In determining the
amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim’s request for restitution … and such
other matters as it deems appropriate.
***
[(3)](i) It shall be the responsibility of the district
attorneys of the respective counties to make a
recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered.
This recommendation shall be based upon information
solicited by the district attorney and received from the
victim.
18 Pa.C.S.A. § 1106.
Moliterno contends that the trial court’s imposition of restitution was
illegal, as Wal-Mart only suffered a loss of $1,057.00. Brief for Appellant at
9. Moliterno argues that the Commonwealth failed to present any evidence
to support the restitution award of $1,713.00. Id. at 9, 10; see also id. at
10 (asserting that the Commonwealth simply relied upon Wal-Mart’s
statement that it was owed $1,713.00 in restitution). Moliterno claims that
while he did take two gift cards, he charged only $1,057.00 on one of the
-3-
J-S11039-16
cards,2 but did not use the card containing $750.00. Id. at 10. Moliterno
argues that because he never used one of the cards, Wal-Mart did not suffer
any losses. Id. According to Moliterno, the fact that he agreed to pay
$1,713.00 as part of his guilty plea is irrelevant because the court could not
impose an illegal sentence. Id. at 10-11.
Here, as part of his guilty plea colloquy, Moliterno agreed to plead
guilty to one count of theft by deception in exchange for a standard range
sentence and agreeing to pay restitution on both counts of theft by
deception. See Written Guilty Plea Colloquy, 12/12/14, at 1. Moliterno
admitted to the factual bases of the crimes he committed, including
obtaining, through deception, two gift cards with values of $975.00 and
$750.00, respectively. Id. at 4. At sentencing, the Commonwealth stated
that the victim sought restitution in the amount of $1,713.00. N.T., 2/5/15,
at 8; see also 18 Pa.C.S.A. § 1106(c)(3)(i). After the trial court imposed
restitution in the amount of $1,713.00, Moliterno filed a Post-Sentence
Motion arguing, inter alia, that the restitution was not supported by the
record. Post-Sentence Motion, 2/17/15, at 2 (unnumbered). Following a
hearing on the Motion, the trial court indicated that it provided Moliterno an
additional seven days to present any information to support his claims, but
that Moliterno presented no evidence in support thereof. See Trial Court
Opinion, 6/16/15, at 4. The trial court subsequently denied the Motion.
2
Moliterno does not explain how he charged $1,057.00 on a gift card that
contained $975.00.
-4-
J-S11039-16
Here, based upon a review of the evidence of record, the trial court did
not err in imposing restitution in the amount of $1,713.00. See id.
However, even assuming arguendo that the amount of Moliterno’s restitution
is illegal, Moliterno expressly agreed to pay restitution on both counts as
part of his negotiated plea agreement with the Commonwealth. See
Commonwealth v. Byrne, 833 A.2d 729, 736 (Pa. Super. 2003) (where
the defendant had expressly waived his statutory right to credit for time
served as part of his guilty plea agreement, stating that “[w]e are aware of
no authority that provides an impediment to a defendant’s express,
knowing, and voluntary waiver of a statutory right if that waiver is key in
obtaining a bargained-for exchange from the Commonwealth.”) (citing, inter
alia, Peretz v. U.S., 501 U.S. 923, 936 (1991) (stating that “[t]he most
basic rights of criminal defendants are … subject to waiver.”)); see also
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(noting that a person is bound by the statements he makes during a plea
colloquy); Byrne, 833 A.2d at 735 (stating that where an appellant seeks to
avoid the enforcement of a term in a negotiated guilty plea agreement, such
an avoidance “would undermine the designs and goals of plea bargaining,
and would make a sham of the negotiated plea process.”). Accordingly, we
discern no abuse of discretion by the court in sentencing Moliterno because
he agreed to pay restitution on both counts as part of obtaining a bargained-
-5-
J-S11039-16
for exchange with the Commonwealth. Thus, he is not entitled to relief on
his legality of sentence challenge.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2016
-6-