J-S90011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
MADELINE GUGLIELMO                    :
                                      :
                 Appellant            :   No. 1064 EDA 2016

        Appeal from the Judgment of Sentence November 19, 2013
            In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0005484-2013

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
MADELINE GUGLIELMO                    :
                                      :
                 Appellant            :   No. 1065 EDA 2016

        Appeal from the Judgment of Sentence November 19, 2013
            In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0005109-2013



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                           FILED MARCH 15, 2017

     Madeline Guglielmo appeals from the judgment of sentence imposed

on November 19, 2013, in the Delaware County Court of Common Pleas.

The trial court sentenced Guglielmo to an aggregate term of four to eight

years’ imprisonment and five years’ consecutive probation, following her

open guilty plea, in two separate cases, to theft by deception and related
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charges.     Relevant to this appeal, Guglielmo was also ordered to pay

$137,302.31 in restitution at Docket No. 5109-2013, and $1,328.05 in

restitution at Docket No. 5484-2013. On appeal, Guglielmo challenges the

discretionary aspects of her sentence, and contends the restitution orders

were illegal. For the reasons below, we affirm.

        The facts and procedural history underlying this appeal are as follows.

On October 29, 2013, Guglielmo entered an open guilty plea in two separate

cases.    At Docket No. 5109-2013, she pled guilty to charges of theft by

deception, criminal use of communication facility, and access device fraud1

for obtaining, under false pretenses, more than $100,000 from an elderly

family friend in 2012 and 2013.2               At Docket No. 5484-2013, Guglielmo

entered a plea to one count of theft by deception for issuing a check with

insufficient funds to Arlington Cemetery for her mother’s interment. 3 At the

conclusion of the plea hearing, the trial court scheduled a deferred

sentencing date in order to obtain a presentence investigation report and

psychiatric evaluation.
____________________________________________


1
    See 18 Pa.C.S. 3922(a)(1), 7512(a), and 4106(a), respectively.
2
  The victim and Guglielmo’s mother were close friends. See Criminal
Complaint, 7/18/2013, Affidavit of Probable Cause at 1. Guglielmo told the
victim she needed the money to pay for medical treatments for her sick
husband. See id. However, she then used the money obtained to pay
household bills and go on shopping sprees. See id. at 2.
3
    See 18 Pa.C.S. § 3922(a)(1).




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        On November 19, 2013, Guglielmo appeared before the sentencing

court. At Docket No. 5109-2013, the court imposed the following sentence:

(1) on the charge of theft, a term of two to four years’ imprisonment; (2) on

the charge of criminal use of a communication facility, a consecutive term of

one to two years’ imprisonment, followed by three years’ probation; and (3)

on the charge of access device fraud, a consecutive term of one to two

years’ imprisonment, followed by two years’ probation. The theft sentence

was imposed in the aggravated range of the guidelines. Moreover, the court

directed that the aggregate sentence run consecutively to a probation

revocation sentence imposed on September 18, 2013.           At Docket No.,

5484-2013, the court imposed a term of one to two years’ imprisonment on

the theft count, to run concurrently to the sentence at Docket No. 5109-

2013.    Guglielmo filed a timely, pro se post-sentence motion requesting

reconsideration of her sentence. However, before the trial court considered

the motion, Guglielmo filed a pro se notice of appeal.      Two days later,

counsel filed a notice of appeal.4




____________________________________________


4
  We note that the sentence was imposed by the Honorable Patricia H.
Jenkins, who presided over Guglielmo’s guilty plea and sentencing hearing.
However, after the initial notice of appeal was filed, Judge Jenkins was
appointed to this Court and the case was reassigned to the Honorable
Gregory M. Mallon. See Trial Court Opinion, 6/22/2016, at 3 n.2.




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        When these appeals first appeared before this Court, counsel filed a

petition to withdraw and an Anders5 brief. However, a panel of this Court,

quashed     the    appeal   in    a   judgment      order,   finding   the   appeal   was

interlocutory because Guglielmo (and counsel) filed a notice of appeal while

her pro se post-sentence motion was still pending. See Commonwealth v.

Guglielmo,        2015   WL      6114287       [2   EDA   2014]   (Pa.   Super.   2015).

Accordingly, the panel denied counsel’s petition and remanded the case for

further proceedings.6 See id.

        Upon remand, counsel filed an amended post-sentence motion

requesting reconsideration of Guglielmo’s sentence.                Specifically, counsel

asserted the sentence imposed was “harsh and excessive under the

circumstances” and the restitution order was illegal because the court did

not “specify the amount and method of restitution.”                      Amended Post-

Sentence Motions, 11/16/2015. Following a hearing on January 6, 2016, the

court denied the post-sentence motion by order dated March 7, 2016. This

timely appeal followed.7
____________________________________________


5
    Anders v. California, 386 U.S. 738 (1967).
6
 Specifically, the panel directed the trial court to forward Guglielmos’ pro se
motion to counsel so that counsel could file an amended post-sentence
motion. See id.
7
  On April 14, 2016, the trial court ordered Guglielmo to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Guglielmo complied with the court’s directive, and filed a concise statement
on May 5, 2016.



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      In her first issue on appeal, Guglielmo argues the sentence imposed by

the trial court was harsh and excessive under the circumstances of her case.

Specifically, she contends the court failed to consider the factors listed in 42

Pa.C.S. § 9725 before imposing a sentence of total confinement.            See

Guglielmo’s Brief at 20.   Rather, she insists the sentence she received for

her non-violent offense is “commensurate with that of rapists and robbers.”

Id.   She maintains the trial court failed to consider “just what kind of

person” she is, her risk of recidivism, and her need for “correctional

treatment.” Id.

      It is well-established that “[a] challenge to the discretionary aspects of

a sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.”     Commonwealth v. Hoch,

936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted).       Here, Guglielmo

complied with the procedural requirements for this appeal by filing a timely

post-sentence motion for modification of sentence, and subsequent notice of

appeal, and by including in her appellate brief a statement of reasons relied

upon for appeal pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa. 1987), and Pa.R.A.P. 2119(f). See Commonwealth v. Edwards, 71

A.3d 323, 329-330 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa.

2013).   Therefore, we must determine whether she raised a substantial

question justifying our review.




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      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   Guglielmo’s contention that the trial court failed to

consider the factors listed in Section 9725 before imposing a sentence of

total confinement constitutes a substantial question that the sentence

imposed was “inconsistent with a specific provision of the Sentencing Code.”

Id.

      Preliminarily, we note “[s]entencing is a matter vested in the sound

discretion of the sentencing judge, and a sentence will not be disturbed on

appeal absent a manifest abuse of discretion.”          Commonwealth v.

McLaine, 150 A.3d 70, 75 (Pa. Super. 2016) (quotation omitted).        When

this Court reviews a sentence on direct appeal, the Sentencing Code requires

us to vacate a sentence and remand for re-sentencing if, inter alia, the

defendant was “sentenced within the sentencing guidelines but the case

involves circumstances where the application of the guidelines would be

clearly unreasonable.”    42 Pa.C.S. § 9781(c)(2).     When reviewing the

record, we should consider the following factors:

        (1) The nature and circumstances of the offense and the
        history and characteristics of the defendant.




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         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

Id. at § 9781(d)(1)-(4).

      Guglielmo’s    specific   complaint   focuses   on   Section   9725,   which

provides, in relevant part:

      The court shall impose a sentence of total confinement if, having
      regard to the nature and circumstances of the crime and the
      history, character, and condition of the defendant, it is of the
      opinion that the total confinement of the defendant is necessary
      because:

         (1) there is undue risk that during a period of probation or
         partial confinement the defendant will commit another
         crime;

         (2) the defendant is in need of correctional treatment that
         can be provided most effectively by his commitment to an
         institution; or

         (3) a lesser sentence will depreciate the seriousness of the
         crime of the defendant.

42 Pa.C.S. § 9725.

      Upon our review of the record, the parties’ briefs and the relevant

statutory and case law, we find the trial court properly considered the

requisite factors listed in Section 9725 before sentencing Guglielmo to a

term of total confinement. We note, initially, the trial court reviewed both a

psychiatric evaluation of Guglielmo and a presentence investigation report

prior to the sentencing hearing. See N.T., 11/19/2013, at 5. See Ventura,

supra, 975 A.2d at 1135 (“[W]here the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

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sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”).

       Moreover, the court acknowledged the sentencing guideline ranges,

and the Commonwealth’s intention to seek a mandatory minimum sentence

for Guglielmo’s conviction of theft at Docket No. 5109 of 2013 8. See N.T.,

11/19/2013, at 4.         After hearing the testimony of the elderly victim’s

daughter and Guglielmo herself, the trial court provided the following

reasons for its sentence:

       Ms. Guglielmo is a thief, not just once, not twice, but three times
       over. And her actions were despicable and her choice of victims,
       not just any senior citizen, but her mother’s best friend. And I
       find disingenuous her representations today that she has any
       regret whatsoever. She represented to [the elderly victim] Ms.
       Romaine that she needed Ms. Romaine’s money to pay medical
       expenses for her ill husband and her husband is in fact ill, but
       she didn’t use the money for medical expenses. She used it for
       shopping sprees. She went to Nordstrom, went to Sears. I
       forget the list of retail establishment[s] that she frequented, but
       she didn’t pay medical expenses and when asked she said that
       she really didn’t need to steal the money anyway because if
       she’d asked for it Ms. Romaine would have given it to her. So
____________________________________________


8
  Section 9717 of the Sentencing Code provides for a mandatory sentence of
one-year imprisonment when a defendant, who is under the age of 60, is
convicted of theft by deception of a victim who is over the age of 60. 42
Pa.C.S. § 9717(a). The imposition of the mandatory minimum, however, is
“discretionary with the court where the court finds justifiable cause and that
finding is written in the opinion.” Id. We note that the two to four year
sentence imposed by the trial court on the theft by deception count herein,
exceeded the one-year mandatory minimum, and fell within the aggravated
range of the sentencing guidelines.        See Guideline Sentence Form,
11/19/2013.




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     why did she steal it? Why didn’t she just ask for it if it would
     have been given to her anyway? This is unclear to me. Perhaps
     she enjoyed stealing it. I’m compelled to look at aggravators
     and mitigators in fashioning an appropriate sentence. I’ve just
     named some of the aggravators. If I didn’t describe it clearly
     enough we’ll say victim impact, she stole the life savings of a
     senior citizen. She violated a trusting relationship they had. Her
     scheme was one that required a great deal of planning. It
     wasn’t an impetuous event. She had a prior history of the same
     kind of behavior. She paid no restitution on these claims. She
     didn’t pay restitution on her earlier case, but her family
     members paid it for her.           So although she’s accepted
     responsibility in terms of entering into a plea it’s really
     questionable whether she’s truly accepted responsibility because
     she hasn’t made good on her obligation to repay the money that
     she stole. She took advantage not only of Ms. Romaine, but she
     took advantage of her husband’s illness in using it as an excuse
     to swindle Ms. Romaine out of her life savings. I see no
     mitigator that even comes close to measuring up against all of
     the aggravators in this situation. I think the Commonwealth is
     correct that a sentence in the aggravated range is correct, that it
     is appropriate. And if I have any realistic expectation that Ms.
     Guglielmo would pay back Ms. Romaine that might impact on the
     sentence imposed, but that’s not what she does. And I haven’t
     been afforded any plan that she can put forward that would
     enable her to repay the money.

N.T., 11/19/2013, at 17-19.

     We find the trial court’s detailed explanation for imposition of the

sentence herein demonstrates its consideration of the relevant sentencing

factors listed in Section 9725.   We emphasize Guglielmo committed the

present offenses while she was on probation for a 2011 theft by deception

case. See id. at 12. Therefore, the court was justified in concluding that if

a sentence of less than total confinement was imposed, there was an “undue

risk” that Guglielmo would commit another crime.      42 Pa.C.S. § 9725(1).

Further, the court’s comments cited above demonstrate Guglielmo’s need for


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“correctional treatment” and the court’s belief that “a lesser sentence will

depreciate the seriousness” of Guglielmo’s offenses. Id. at § 9725(2)-(3).

Accordingly, we find no abuse of discretion on the part of the trial court in

sentencing Guglielmo to an aggregate term of four to eight years’

imprisonment.9

        Next,   Guglielmo     contends     her     sentence   is   illegal   because   the

sentencing court failed to follow the requirements of 18 Pa.C.S. § 1106(c)(2)

before ordering her to pay restitution as part of her sentence. Such a claim

challenges the legality of her sentence.10 See Commonwealth v. Smith,

956 A.2d 1029, 1033 (Pa. Super. 2008), appeal denied, 989 A.2d 917 (Pa.

2010).

        A trial court’s authority to order restitution is codified at 18 Pa.C.S. §

1106.     Section 1106 mandates, in relevant part, that when property has
____________________________________________


9
  To the extent Guglielmo argues the trial court abused its discretion in
imposing consecutive sentences for her offenses, we note that such a claim
fails to raise a substantial question for our review. See Guglielmo’s Brief at
21. This Court has held: “[T]he imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Austin, 66 A.3d 798, 808 (2013) (citation omitted),
appeal denied, 77 A.3d 1258 (Pa. 2013). No such extreme circumstances
are present here.
10
   We note that “[i]n the context of criminal proceedings, an order of
restitution is not simply an award of damages, but, rather, a sentence.”
Commonwealth v. Holmes, ___A.3d ___, ___, 2017 WL 337093, *6 (Pa.
Super. Ct. Jan. 4, 2017) (en banc) (citation omitted).




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been unlawfully obtained as a direct result of a crime, “the offender shall be

sentenced to make restitution in addition to the punishment prescribed

therefor.” 18 Pa.C.S. § 1106(a). Subsection (c)(1) states full restitution is

mandatory “[r]egardless of the current financial resources of the defendant.”

Id. at § 1106(c)(1)(i).    Relevant to Guglielmo’s claim, subsection (c)(2)

further provides:

      (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.

         (ii) May order restitution in a lump sum, by monthly
         installments or according to such other schedule as it
         deems just.

                                   ****

         (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.

Id. at § 1106(c)(2)(ii).

      Here, Guglielmo claims the court failed to follow the requirements of

Section 1106(c)(2).    In cursory fashion, she asserts the sentencing court

failed to (1) specify the amount and method of restitution, (2) consider the

extent of the injury suffered by the victim, and (3) consider other

preexisting orders imposed on her.    See Guglielmo’s Brief at 22.      Rather,

she claims “[t]he figure was given [by the Commonwealth] and the facts on



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the victim [were] considered, but little else.”    Id.   Without any analysis,

Guglielmo submits “her issue is similar to that in Commonwealth v.

Smith[, supra.]” Id. at 23.

      In Smith, the defendant was convicted of aggravated assault and

related charges after his infant son was diagnosed with Shaken Baby

Syndrome. Smith, supra, 956 A.2d at 1031. At sentencing, the trial court

imposed a five to ten year prison term, and ordered the defendant to pay

restitution “up to a maximum amount of $1,481,562.54[,]” which included

both “expenses incurred in the past and those that will be incurred in the

future.” Id. at 1031 n.1. On appeal, the defendant argued, inter alia, that

the court “violated the express terms of the restitution statute” by failing to

“set an amount and method of payment at sentencing,” but rather,

“improperly delegated its duties to the Department of Probation and Parole.”

Id. at 1032-1033.

      The Smith panel agreed with the defendant. The panel emphasized

that a trial court “may not impose a general order of restitution at

sentencing and then ‘work out the details’ and amounts at a later date.” Id.

at 1033 (citation omitted). The panel explained:

            We recognize that the court held a post-sentence motion
      hearing at which the court attempted to clarify both the amount
      and method of payment. N.T., 5/19/2006, at 4-5. Specifically,
      the court indicated its belief that [the defendant] would pay the
      amounts that the [Department of Public Welfare] incurs on an
      ongoing, “pay-as-you-go” basis. Id. at 5–6; see also Trial Court
      Opinion, 8/14/2006, at 4 n. 2 (“It is important to note that the
      Commonwealth is not seeking these costs from Defendant unless
      they are actually incurred by [the victim]. The purpose of

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       including them in restitution is only so that if such costs are
       accrued, Defendant will be responsible for their payment.”)
       Unfortunately, the court never modified the sentencing order to
       make these facts clear. Rather, the certified record continues to
       reflect only a generalized order of restitution with no amount or
       method of payment. We are constrained to hold that such an
       order is illegal and must be corrected.

Id. at 1034 (footnotes omitted).11

       We find the facts in the instant case distinguishable. First, during the

sentencing hearing, the attorney for the Commonwealth specifically stated

“the parties have come to some understanding as to the amount of

restitution [at Docket No. 5109-2013] and that amount is $137,302.31.”

N.T., 11/19/2013, at 4.        Moreover, the attorney also noted that while the

original amount stolen at Docket 5484-2013 was $2,160.00, some of

Guglielmo’s family members “paid some money down so the actual amount

owed is $1,328.05.” Id. at 11-12. Guglielmo did not object to either of the

restitution amounts as stated by the Commonwealth. Unlike in Smith, the

amount of restitution on each charge was firmly established at the time of

sentencing. See Smith, supra, at 1034 (holding court’s order of restitution

which included a “maximum cap” was illegal).

       Second, although we agree the sentencing court did not explicitly

direct the method by which Guglielmo was to pay the restitution, we also
____________________________________________


11
   The panel specifically noted that it had “no quarrel with the broad outlines
of the trial court’s proposed restitution scheme” and the court could have
“set up a plan where DPW submits expenses on a yearly basis, and gives
[the defendant] the opportunity to review those expenses before the court
reviews them and orders [the defendant] to pay them.” Id. at 1034 n.3.



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agree with the conclusion of the trial court that it was implicit in the

sentencing transcript that “Judge Jenkins ordered [Guglielmo] to pay the

restitution in a lump sum, which is permitted under the sentencing code.”

Trial Court Opinion, 6/22/2016, at 7.

      Moreover, we find Guglielmo’s complaints that the sentencing court

failed to consider both the extent of the victims’ injuries and any other

preexisting orders disingenuous. As noted above, the sentencing court was

informed, without objection, that the parties agreed to the amount of

restitution owed under each docket.     See N.T., 11/19/2013, at 4, 11-12.

Indeed, the restitution ordered at Docket No. 5484-2013 was reduced after

the Commonwealth acknowledged the victim was reimbursed, in part, by

Guglielmo’s family members.     See id. at 11-12.     Furthermore, Guglielmo

has not provided this Court with any information regarding outstanding

restitution orders in other cases that may have impacted the restitution

orders herein. Accordingly, no relief is warranted.

      Therefore, we conclude the trial court did not err or abuse its

discretion in sentencing Guglielmo to an aggregate term of four to eight

years’ imprisonment, and ordering her to pay $138,630.36 in restitution.

Consequently, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Jenkins did not participate in the consideration or decision of

this case.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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