J-A09031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MATTHEW WAYNE MITCHELL

                        Appellant                   No. 1804 EDA 2014


                 Appeal from the Order dated May 21, 2014
                In the Court of Common Pleas of Pike County
              Criminal Division at No: CP-52-CR-0000406-2013


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JULY 10, 2015

      Appellant Matthew Wayne Mitchell appeals from the May 21, 2014

order of the Court of Common Pleas of Pike County (“trial court”), which

granted the Commonwealth’s motion to modify the amount of restitution

imposed. Upon review, we vacate the order and remand the matter to the

trial court for issuance of a new order in compliance with Pa.C.S.A.

§ 1106(c)(3).

      The facts and procedural history underlying this case are uncontested.

Briefly, in addition to breaking into a residential structure, Appellant along

with his co-defendants “stole a silver in color 2005 GMC Canyon . . . and

drove it away[.]” Affidavit of Probable Cause, 8/14/13, at ¶ 4. Appellant

and his co-defendants “then traveled in the stolen GMC pickup truck to a

tributary water near Lake Wallenpaupack[,] placed a rock on the gas pedal
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of the vehicle and watched the vehicle travel into the water and submerge

out of sight.” Id. January 2, 2014, Appellant pled guilty to burglary under

Section 3502(a)(2) of the Crimes Code (“Code”), 18 Pa.C.S.A. § 3502(a)(2),

and two counts of theft by unlawful taking under Section 3921(a) of the

Code, 18 Pa.C.S.A. § 3921(a) at docket no. 406-2013.1        On February 21,

2014, the trial court sentenced Appellant to an aggregate term of 18 to 36

months’ imprisonment for the foregoing crimes at docket no. 406-2013.

Additionally, the trial court imposed upon Appellant, jointly and severally

with his co-defendants, restitution for $800.00. Appellant did not appeal the

judgment of sentence. On April 8, 2014, the Commonwealth filed a motion

titled “Recommendation of Restitution” under 18 Pa.C.S.A. § 1106(c)(3),

requesting the trial court to modify the amount of restitution imposed to

include $25,445.59 to the victim Nationwide Insurance (“Nationwide”) in

connection with the GMC truck. Following a hearing, on May 21, 2014 the

trial court granted the Commonwealth’s modification request. Appellant filed

a timely appeal.         Following Appellant’s filing of a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, the trial court issued its

Pa.R.A.P. 1925(a) opinion, addressing, inter alia, Appellant’s challenge to the

trial court’s modification of restitution imposed.


____________________________________________


1
 Appellant also pled guilty to theft by unlawful taking at docket no. 413-
2013 and theft by unlawful taking and defiant trespass at docket no. 567-
213.



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      On appeal, Appellant essentially raises two arguments for our review.

First, Appellant argues the trial court erred in granting the Commonwealth’s

motion for modification of restitution because the Commonwealth could have

known at the time of sentencing that the amount of restitution sought was

subject to modification.   Second, Appellant argues the trial court failed to

comply with 18 Pa.C.S.A. § 1106(c)(3) to the extent it did not provide on

the record its reasons for modification of restitution imposed.

      Because   Appellant’s arguments relate      solely to   the   legality of

sentence, our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super.

2014).

      Appellant first argues the trial court erred in modifying the restitution

imposed because the Commonwealth could have ascertained prior to, or at

the time of, sentencing Nationwide’s claim for restitution. In support of his

argument, Appellant relies on Commonwealth v. Ortiz, 854 A.2d 1280

(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1145 (Pa. 2004). In

Ortiz, we determined an amendment to a restitution sentence entered more

than 30 days after the original sentence imposed is appropriate only where it

is based on “something that was not known and could not have been




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reasonably ascertained at the time of the original order was entered.”2 Id.

at 1283.

       In Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009), however,

our Supreme Court expressly rejected the notion that facts supporting a

restitution amendment “must embody something that was not known and

could not have been reasonably ascertained at the time the original order

was entered.” Dietrich, 970 A.2d at 1135. The Court explained:

       The plain language of § 1106(c)(3) provides courts with broad
       authority to modify restitution amounts at any time if the court
       states reasons for doing so as a matter of record. 18 Pa.C.S.[A.]
       § 1106(c)(3) (emphasis added).         There is no statutory
       requirement       the     reasons     for     modification     be
       undiscoverable at the time of sentencing.                 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.; cf. 42 Pa.C.S.[A.] § 5505.


Id. (bolded emphasis added). Based on the Court’s rationale in Dietrich,

Appellant first argument is devoid of merit. The trial court was not required

to deny the Commonwealth’s motion for modification of restitution imposed

simply because the Commonwealth could have ascertained Nationwide’s loss

prior to, or at the time of, sentencing.

       Appellant next argues the trial court erred in modifying the amount of

restitution imposed without providing its reasons for so doing as a matter of

record. We agree.
____________________________________________


2
 Appellant does not argue the trial court lacked jurisdiction to modify the
amount of restitution imposed 30 days after sentencing.



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       The Crimes Code provides restitution may be altered or amended at

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

any change on the record.3             See 18 Pa.C.S.A. § 1106(c)(3); see also

Dietrich, 970 A.2d at 1135 (noting “a sentencing court may modify

restitution orders at any time if the court states its reasons as a matter of

record”).    The Supreme Court in Dietrich applied Section 1106(c)(3) and

concluded that the trial court erred in failing to give its reasons for

modification of restitution on the record. Id. As a result, the Court vacated

the restitution order and remanded the matter to the trial court for

resentencing. Id.

       Instantly, the record plainly reveals the trial court, like the trial court

in Dietrich, failed to provide on the record its reasons for modifying the

amount of restitution imposed to include restitution in favor Nationwide for

$25,445.59. Accordingly, under Dietrich, we must vacate the May 21, 2014

order and remand this case to the trial court for issuance of a new order in


____________________________________________


3
  Section 1106(C), relating to mandatory restitution, provides in pertinent
part:

       (3) The court may, at any time or upon the recommendation of
       the district attorney that is based on information received from
       the victim . . . 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.A. § 1106(c)(3).




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accordance with 18 Pa.C.S.A. § 1106(c)(3).        Specifically, on remand, the

trial court is directed to provide its reasons for modification on the record.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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