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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MALAKI ADONIS FARRELL
Appellee No. 1717 MDA 2015
Appeal from the Judgment of Sentence June 11, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): CP-67-CR-0001278-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 17, 2016
The Commonwealth appeals from the judgment of sentence entered in
the York County Court of Common Pleas, following Appellee Malaki Adonis
Farrell’s negotiated guilty plea to receiving stolen property, fleeing or
attempting to elude police officer, possession of a controlled substance, and
drivers required to be licensed.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On June 11, 2015, Appellee pleaded guilty to the aforementioned crimes
relating to his involvement with a stolen 2012 Nissan on February 10, 2015.
The trial court sentenced Appellee, according to the terms of the negotiated
plea, to concurrent sentences of one (1) to three (3) years’ incarceration for
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1
18 Pa.C.S. § 3925(a), 75 Pa.C.S. § 3733(a), 35 P.S. § 780-113(a)(16),
and 75 Pa.C.S. § 1501(a), respectively.
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receiving stolen property, one (1) to three (3) years’ incarceration for fleeing
or attempting to elude police officers, and six (6) to twelve (12) months’
incarceration for possession of a controlled substance. Additionally, Appellee
was fined $200.00 for driving without a license.
On June 22, 2015, the Commonwealth filed a motion to modify
sentence to include restitution.2 On October 5, 2015, the court conducted a
hearing on restitution. The court denied the Commonwealth’s motion to
include restitution the next day. On October 7, 2015, the Commonwealth
filed a notice of appeal. On October 14, 2015, the court ordered the
Commonwealth to file a concise statement of errors complained of upon
appeal pursuant to Pa.R.A.P. 1925(b), and it timely complied on October 26,
2015.
The Commonwealth raises the following issue for our review:
RESTITUTION IS PART OF A CRIMINAL SENTENCE AND
CAN BE IMPOSED THROUGH POST-SENTENCE MOTIONS.
FOLLOWING [APPELLEE’S] PLEA AND SENTENCING, THE
COMMONWEALTH RECEIVED INFORMATION THAT
RESTITUTION WAS OWED TO ONE OF THE VICTIMS. THE
COMMONWEALTH FILED A TIMELY POST-SENTENCE
MOTION ASKING THE TRIAL COURT TO IMPOSE
RESTITUTION AS PART OF [APPELLEE’S] SENTENCE. DID
THE TRIAL COURT ERR IN REFUSING TO ORDER
RESTITUTION?
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2
Because June 21, 2015 fell on a Sunday, the Commonwealth’s post-
sentence motion was timely filed. See 1 Pa.C.S. § 1908 (when computing
the 30-day filing period, “[if] the last day of any such period shall fall on
Saturday or Sunday… such day shall be omitted from the computation.”).
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Commonwealth’s Brief at 4.
The Commonwealth argues the court should have granted its post-
sentence motion to modify sentence by imposing restitution because it was
timely. It claims the court erred by denying the motion and concludes this
Court should reverse the order denying its post-sentence motion and
remand the case to the trial court for a full restitution hearing. We disagree.
“[T]he imposition of restitution for property damage is not
mandatory.” Commonwealth v. Rohrer, 719 A.2d 1078, 1080
(Pa.Super.1998). Rather, “[t]he imposition of restitution is within the sound
discretion of the sentencing court and must be supported by the record.”
Commonwealth v. Keenan, 853 A.2d 381, 382-83 (Pa.Super.2004).
Accordingly, in this case, the Commonwealth challenges the discretionary
aspects of Appellee’s sentence.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must invoke this Court’s jurisdiction by satisfying the
following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
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Id.
Here, the Commonwealth filed a timely post-sentence motion and a
timely notice of appeal. The Commonwealth, however, failed to include a
Pa.R.A.P. 2119(f) statement in its brief and failed to raise a substantial
question that the sentence appealed from is not appropriate under the
sentencing code. The Commonwealth, therefore failed to invoke this Court’s
jurisdiction. See Allen, supra.
Even if the Commonwealth had invoked this Court’s jurisdiction, its
issue would merit no relief.
The following statute governs restitution:
§ 1106. Restitution for injuries to person or property
(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 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 as presented
to the district attorney in accordance with paragraph (4)
and such other matters as it deems appropriate.
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(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
(iii) Shall not order incarceration of a defendant for
failure to pay restitution if the failure results from the
offender's inability to pay.
(iv) Shall consider any other preexisting orders imposed
on the defendant, including, but not limited to, orders
imposed under this title or any other title.
(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.
(4) (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.
(ii) Where the district attorney has solicited information
from the victims as provided in subparagraph (i) and has
received no response, the district attorney shall, based on
other available information, make a recommendation to
the court for restitution.
(iii) The district attorney may, as appropriate, recommend
to the court that the restitution order be altered or
amended as provided in paragraph (3).
18 Pa.C.S. § 1106 (emphasis added).
Act 1998-121 imposed upon the court the requirement
that if restitution is ordered, the amount must be
determined at the time of sentencing, 18 [Pa.C.S.] §
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1106(c)(2). It also placed upon the Commonwealth the
requirement that it provide the court with its
recommendation of the restitution amount at or prior to
the time of sentencing. 18 [Pa.C.S.] § 1106(c)(4).
Although the statute provides for amendment or
modification of restitution “at any time,” 18 [Pa.C.S.] §
1106(c)(3), the modification refers to an order “made
pursuant to paragraph (2)...” Id. Thus, the statute
mandates an initial determination of the amount of
restitution at sentencing. This provides the defendant with
certainty as to his sentence, and at the same time allows
for subsequent modification, if necessary. See 18 [Pa.C.S.]
§ 1106(c)(3); cf. [42 Pa.C.S.] § 5505 (“Except as
otherwise provided or proscribed 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.”).
Commonwealth v. Dinoia, 801 A.2d 1254, 1256-57 (Pa.Super.2002).
Here, the trial court sentenced Appellee on June 11, 2015, pursuant to
a negotiated plea agreement. On June 22, 2015, the Commonwealth filed a
motion to modify sentence to include restitution. The district attorney did
not make a recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered, and the trial court
did not specify the amount and method of restitution at the time of
sentencing. Although the Commonwealth baldly asserts that restitution “can
be imposed through post-sentence motions,”3 it cites no case law, nor does
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3
Commonwealth’s Brief at 4.
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any exist, to support this proposition.4 Section 1106 specifically provides
that it is the district attorney’s responsibility to make a recommendation as
to the amount of restitution to be ordered “at or prior to the time of
sentencing.” 18 Pa.C.S. § 1106(c)(4)(i). The trial court’s decision to deny
the Commonwealth’s motion to modify sentence to include restitution that it
did not impose during sentencing was not error.5
Judgment of sentence affirmed.
Judge Panella joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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4
Further, although the Commonwealth claims its challenge is to the legality
of Appellee’s sentence, it provides no authority that the failure to impose
restitution at sentencing constitutes an illegal sentence.
5
This decision does not preclude the victim from seeking monetary damages
from Appellee in a civil action filed within the applicable statute of
limitations.
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