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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SEBRINA L. LITTLE,

                            Appellant                  No. 1178 WDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
                In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001823-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                           FILED FEBRUARY 10, 2015

       Sebrina L. Little appeals from her judgment of sentence after she pled

guilty to burglary.         Appellant’s sole challenge is to the trial court’s

modification of her restitution. After careful review, we affirm.

       Appellant entered a guilty plea to one count of burglary on March 17,

2014.1    She admitted to being the driver of a vehicle for three separate

break-ins at residences where her co-defendant, Tyler Munion, a juvenile,

stole various items.        The court initially sentenced Appellant, on May 27,

2014, to one to three years incarceration and issued an order for restitution.

That order directed Appellant to pay $3,240.94 in restitution to State Farm

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1
  The Commonwealth agreed to consolidate three separate burglary counts
into a single charge.
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Insurance Company and $2,833.00 to David and Gloria Robinson.             Within

thirty days of that order, on June 19, 2014, the Commonwealth filed a

motion to modify sentence nunc pro tunc. In doing so, the Commonwealth

sought to amend Appellant’s restitution. The trial court conducted a hearing

on June 26, 2014.     The Commonwealth introduced evidence regarding the

value of various items, mostly jewelry, taken during Appellant’s burglary

spree. The court entered an amended restitution order directing Appellant

to pay restitution to Erie Insurance Company in the amount of $3,906.14

and $18,951.82 to Samuel and Isabelle Eakman. The restitution order for

the Robinson’s and State Farm were undisturbed.

      Appellant timely appealed.       The trial court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   Appellant complied, asserting that the sentencing court erred in

increasing    her   restitution   to    approximately    $23,000    where    the

Commonwealth’s motion “was untimely and unfair to the Defendant.” See

Pa.R.A.P. 1925(b) statement, 8/15/14. The trial court authored its opinion

and the matter is now ready for our review. Appellant’s issue is “[w]hether

the Sentence[ing] Court erred in granting the Commonwealth’s late request

to modify sentence by adding restitution to the original sentence[ing]

order?” Appellant’s brief at 5.

      Initially, we note that “questions implicating the trial court's power to

impose restitution concern the legality of the sentence. Commonwealth v.


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Hall, 80 A.3d 1204, 1211 (Pa. 2013) (citing In re M.W., 725 A.2d 729, 731

n. 4 (Pa. 1999); Commonwealth v. Stetler, 95 A.3d 864, 888 n.6

(Pa.Super. 2014)   (“challenges   to the appropriateness of a sentence of

restitution are generally considered [c]hallenges to the legality of the

sentence.”). In contrast, where the claim is “that the restitution order is

excessive, it involves a discretionary aspect of sentencing.”   In re M.W.,

supra at 731.

     Appellant’s issue in her concise statement and the objection raised at

the restitution hearing were to the trial court’s authority to impose

restitution more than ten days after the judgment of sentence. Hence, such

an argument relates to the legality of her sentence.        Accordingly, our

standard of review would be de novo and our scope of review is plenary.

Commonwealth v. Gentry, 101            A.3d 813, 817     (Pa.Super. 2014).

However, the argument Appellant levels on appeal relates to the trial court’s

alleged failure to provide reasons for its modification on the record. Claims

that a court failed to adequately state its reasons on the record for

sentencing have been held to implicate the discretionary aspects of a

sentence. See Commonwealth v. Coss, 695 A.2d 831 (Pa.Super. 1997);

Commonwealth v. Smicklo, 544 A.2d 1005 (Pa.Super. 1988) (en banc).

     Nonetheless, insofar as Appellant’s claim can be read as an argument

that the increased restitution order is not supported by the record, prior

precedent acknowledges this to be a legality of sentence issue. In Interest


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of     Dublinski, 695       A.2d     827,       829 (Pa.Super.     1997);   compare

Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.Super. 2012) (in a non-

restitution matter, this Court determined that an allegation that the record is

devoid of evidence supporting a sentence is not an illegal sentencing claim.).

Regardless, Appellant is entitled to no relief.

        The Crimes Code provides that restitution may be altered or amended

at any time provided that the court gives its reasons and conclusions for any

change on the record.         18 Pa.C.S. § 1106(c)(3).2          Appellant argues that

pursuant to Commonwealth v. Ortiz, 854 A.2d 1280 (Pa.Super. 2004) (en

banc), the trial court erred in increasing her restitution by requiring

payments to additional victims.                In Ortiz, the defendant entered a

negotiated guilty plea based on his theft of a car. As part of that plea, he

agreed to pay $159.00 in restitution. Seven and one-half months later, the

Commonwealth requested modification of restitution in the amount of

____________________________________________


2
    18 Pa.C.S. § 1106(3) provides,

         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.




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$1,188.21, based on damage to the car. The Commonwealth knew of this

amount within thirty days of the sentence. Noting that the case was not one

where a full hearing on restitution had occurred, see Ortiz, supra at 1282,

the Ortiz Court held, “because the amount of restitution should have been

known and revealed to the trial court prior to sentencing, the restitution was

part of a plea agreement, and there was no change in circumstances, it was

improper to modify the terms of the restitution.” Id. at 1284.

      Appellant   submits   that   although   a   discussion   occurred   at   the

restitution hearing regarding the victim witness coordinator for the district

attorney’s office neglecting to provide the restitution information to the

prosecutor, the court did not mention this as the reason it altered

restitution. Additionally, Appellant maintains that, even if the court placed

on the record the above facts as grounds for its modification, the

Commonwealth knew the restitution information at sentencing because it

had provided this information relative to Appellant’s co-defendant.        Thus,

according to Appellant, the Commonwealth had to present the restitution

information at that time.

      The Commonwealth responds that Ortiz is inapposite.          It notes that

the restitution amount was part of a negotiated guilty plea therein.           The

Commonwealth adds that the prosecution in Ortiz knew at the time of the

guilty plea and original sentencing the increased amount it later sought via a

restitution hearing.    Further, the Commonwealth highlights that the


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prosecution in Ortiz did not seek additional restitution for almost eight

months after the original sentence.

      Here, the Commonwealth sought modification of restitution within

thirty days of the sentence. It points out that an administrative breakdown

caused it to not request additional restitution for other victims. Finally, the

Commonwealth asserts that it introduced evidence in support of the added

restitution via the testimony of Isabelle Eakman and the documentation she

supplied as to the value of items taken from her home.

      We agree that Ortiz does not compel reversal.         Unlike Ortiz, the

Commonwealth sought modification of restitution within thirty days of

sentencing. The parties did not negotiate the plea based on a set restitution

amount.    The sentencing court plainly credited the testimony and values

placed on the items stolen submitted by Ms. Eakman. Indeed, Appellant did

not dispute “what was lost or the values or anything like that.”          N.T.,

6/26/14.   The court had authority under both 18 Pa.C.S. § 1106 and 42

Pa.C.S. § 5505, which authorizes the amendment of a final order within

thirty days when no appeal has been filed, to alter restitution.         Since

Appellant did not contest the evidence relative to restitution, the court had

adequate grounds to modify the restitution.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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