J-S53042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
KENNETH TYLER CARY,                        :
                                           :
                   Appellant               :           No. 540 MDA 2015

      Appeal from the Judgment of Sentence entered on February 18, 2015
              in the Court of Common Pleas of Lackawanna County,
                  Criminal Division, No. CP-35-CR-0001630-2014

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 13, 2015

        Kenneth Tyler Cary (“Cary”) appeals from the judgment of sentence

imposed after he pled guilty to receiving stolen property and unsworn

falsification to law enforcement.1 We affirm.

        The trial court set forth the relevant procedural history and facts

underlying this appeal as follows:

                On November 20, 2014, [Cary] pled guilty to one count of
        receiving stolen property and one count of making an unsworn
        falsification to law enforcement, and[,] in exchange, the other
        charges pending against [him, i.e., burglary, criminal trespass,
        and theft by unlawful taking (collectively referred to as “the
        dismissed charges”),] were nolle prossed. These charges arose
        on January 26, 2014, in Scranton, when [Cary] entered the
        victims’ home and stole cash, gift cards, and silver coins. After
        conducting an investigation, the police determined that [Cary]
        had used the stolen gift cards, and when he was arrested by
        police on February 20, 2014, he provided a written statement
        and lied about where and how he had obtained the gift cards.


1
    See 18 Pa.C.S.A. §§ 3925(a), 4904(a)(1).
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           On February 18, 2015, [Cary] was sentenced. [At the
     sentencing hearing, t]he Commonwealth stated that the victim[s
     were] seeking $5[,]800 in restitution, and [Cary’s] attorney
     objected[,] since the amount in the [criminal] information[,] and
     the amount of restitution [Cary] had agreed to at the time of the
     plea[,] was $2[,]700. The [trial] court asked the Commonwealth
     where this new amount had come from, and the Commonwealth
     indicated that it was in the victim impact statement submitted to
     the Commonwealth. The court asked to see it, and [Cary’s]
     counsel then stated that [Cary] was indicating that he[] [would]
     accept responsibility for the restitution even though it was not
     part of the original charges. The court said that this should have
     been made part of the file[,] and made available to defense
     counsel. [Cary’s] counsel stated that this is the first time he has
     seen this, but that his client indicates that he is willing to take
     responsibility for the amount of restitution now being demanded.

            [Prior to imposing sentence, t]he [trial] court stated that it
     understood that [Cary had] committed these crimes because of a
     drug addiction, but that [Cary] does not understand that[,] while
     it hurts people to lose things taken from their home, it hurts
     them even more to take away their sense of security in their
     own home. The court stated that they never feel the same
     about being in their own home, and the court views the entry of
     someone else’s home[,] and taking of items from them[,] as
     being a very serious crime, because the sense of security is
     never replaced. The court also noted that [Cary] was either
     under court supervision[,] or just recently released from court
     supervision[,] when the [crimes] were committed, since th[e
     trial] court had sentenced him in March of 2011 to one to three
     years [in prison] ….

           The [trial] court imposed a sentence of one to four years
     [in prison] on the [receiving stolen property] charge, and three
     months to one year on the falsification to law enforcement
     charge, consecutive to the first [sentence]. The court noted that
     the sentences f[e]ll within the standard range of the sentencing
     guidelines, and that the court was going into the upper reaches
     of the standard range because [Cary] was under supervision[,]
     or just released from supervision[,] when he committed the
     crimes. The court stated that it took into consideration [Cary’s]
     rehabilitative needs, but that when he makes his problems
     somebody else’s problems, the court had to get serious about
     the time imposed. The court also ordered restitution of $5[,]800
     to the victims, as well as a drug and alcohol evaluation.

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J-S53042-15


Trial Court Opinion, 5/7/15, at 1-3 (paragraph breaks added, citations

omitted).

      Cary timely filed a Motion for reconsideration of sentence, which the

trial court denied.   Cary then timely filed a pro se Notice of Appeal, after

which the trial court appointed him counsel. The trial court ordered Cary to

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

appeal, and Cary timely complied.

      On appeal, Cary presents the following issues for our review:

       A. Whether the [sentencing] court incorrectly relied on [the
          dismissed] charges for the sentences, charges to which
          [Cary] did not plead guilty, of which he was not
          convicted, and which were nolle prossed as part of his
          plea agreement?

       B. Whether the [sentencing] court imposed             harsh,
          excessive and unreasonable sentences?

       C. Whether the [sentencing] court erred and imposed an
          illegal sentence by imposing restitution of $5,800.00,
          where the amount to which he pled guilty, and the
          stolen items that he acknowledged responsibility for
          receiving[,] was only $2,700.00?

Brief for Appellant at 4.

      We will address Cary’s first two issues together, as they are related.

Cary argues that the sentencing court committed an abuse of discretion in

sentencing him because it (1) impermissibly considered the dismissed

charges when fashioning Cary’s sentence; and (2) imposed an unduly harsh

and excessive sentence. See id. at 10-11, 11-16.




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       Cary challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d

359, 363 (Pa. Super. 2013).          Rather, where, as here, the appellant has

preserved the sentencing challenge for appellate review, by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence,

pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code. Hill, 66 A.3d at 363-64.

       Here, Cary included a Rule 2119(f) Statement in his brief. See Brief

for Appellant at 10-11. Moreover, Cary’s above-mentioned claims present a

substantial question for our review. See Commonwealth v. Stewart, 867

A.2d 589, 592 (Pa. Super. 2005) (stating that a claim that a sentence is

excessive because the sentencing court relied on impermissible factors

raises a substantial question); Commonwealth v. Simpson, 829 A.2d 334,

338 (Pa. Super. 2003) (same); see also Commonwealth v. Mouzon, 812

A.2d   617,   627-28    (Pa.   2002)       (plurality)   (stating    that      a    claim   of

excessiveness of sentence may raise a substantial question even if the

sentence   imposed     is   within   the    standard     range      of   the       sentencing




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guidelines).2

      Our standard of review is well settled:

        Sentencing 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.              In this
        context, an abuse of discretion is not shown merely by an
        error in judgment. Rather, the appellant must establish, by
        reference to the record, that the sentencing court ignored or
        misapplied the law, exercised its judgment for reasons of
        partiality, prejudice, bias or ill will, or arrived at a manifestly
        unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted).

      Cary argues that the sentencing court improperly

      focused on the impact [that] the burglary of the victim[s’] house
      had on the victims[,] and the feeling of being unsafe in their own
      home that such victims feel. [Cary] argues that the [sentencing]
      court impermissibly consider[ed] criminal conduct of which
      [Cary] neither pled guilty nor was convicted[,] and [the
      dismissed charges were] nolle prossed pursuant to a plea
      agreement.

Brief for Appellant at 12. In support of his claim, Cary relies primarily upon

this Court’s decision in Stewart, supra. See Brief for Appellant at 11-12.

The appellant in Stewart challenged the discretionary aspects of his

sentence, asserting that the sentencing court had improperly considered, as

an aggravating factor, charges that had been nolle prossed pursuant to his

2
   Concerning Cary’s claim of excessiveness of sentence, though it is
essentially a bald claim, which ordinarily would not present a substantial
question, see Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012), we will address the merits of the claim. It is associated with Cary’s
separate claim that the sentencing court improperly considered the
dismissed charges in fashioning the sentence; this claim presents a
substantial question. See Stewart, supra.

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guilty plea agreement.        Stewart, 867 A.2d at 591.         This Court initially

observed that “while our courts have … ruled that, when a court imposes its

sentence, the court may consider a defendant’s previous arrests and

concurrent charges[,] … there is authority for the proposition that a sentence

cannot be enhanced for any offense other than the one to which the

defendant pled guilty.” Id. at 593 (internal citations and paragraph break

omitted).    In Stewart, the sentencing judge had expressly stated that he

was imposing a sentence in the aggravated range because of the nolle

prossed charges.        Id.     This Court held that the sentencing judge’s

consideration of this factor was an abuse of discretion, and warranted a new

sentencing hearing. See id.

      We determine that Cary’s reliance upon Stewart is misplaced. Unlike

the situation in Stewart, here, the sentencing judge, the Honorable Vito P.

Geroulo (“Judge Geroulo”), never referred to the dismissed charges when

imposing sentence. Rather, he impressed upon Cary the impact that home

invasion crimes can have upon victims’ sense of security in their homes.

See N.T., 2/18/15, at 5-7. In making this observation, Judge Geroulo was

not using the dismissed charges as an “aggravating factor”; rather, he was

remarking on Cary’s character and the impact of his criminal conduct. See,

e.g., Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa. Super. 1980)

(holding that it was not improper for the sentencing judge to consider the

defendant’s criminal activity for which he was not tried, charged or

convicted,   as   it   was    relevant   to   an   evaluation   of   his   character).

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Furthermore, the receiving stolen property charge to which Cary pled guilty

concerned property taken during the same home invasion that was the basis

for the dismissed charges.      Therefore, we see no impropriety by Judge

Geroulo in merely reflecting upon the impact that the home invasion had on

the victims.

      Finally, Judge Geroulo’s observation concerning the impact of Cary’s

conduct was not the reason that the court gave for imposing a sentence in

the upper range of the sentencing guidelines. Rather, Judge Geroulo stated

that he felt compelled to impose such a sentence because of Cary’s prior

criminal history and supervision status at the time of the home invasion.

See N.T., 2/18/15, at 5-8.          Judge Geroulo also stated that he had

considered Cary’s rehabilitative needs in imposing this particular sentence.

See id. at 8 (stating that “while I generally focus on rehabilitation for those

who are addicted, when you make your problems somebody else’s problems,

then we have to get serious about the time imposed.”).          Accordingly, we

cannot agree with Cary that Judge Geroulo improperly sentenced him based

upon a consideration of the dismissed charges, and Cary’s first issue thus

lacks merit.

      Concerning Cary’s second issue, his claim of excessiveness of sentence

is largely based on the same above-mentioned claim, which we have already

rejected. See Brief for Appellant at 16 (asserting that Cary “contends that

the [sentencing] court imposed unreasonable and harsh sentences when it

considered     criminal   conduct   involving   the   [dismissed]   charge[s].”).

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Nevertheless, to the extent that Cary raises an independent claim of

excessiveness, we discern no abuse of discretion by the sentencing court,

and conclude that Cary’s sentence, which was within the standard guideline

range, was neither excessive nor unreasonable.         See Commonwealth v.

Walls, 926 A.2d 957, 964 (Pa. 2007) (stating that “rejection of a sentencing

court’s imposition of sentence on unreasonableness grounds [should] occur

infrequently, whether the sentence is above or below the guideline

ranges.”); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(stating that “where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code.”).      Judge Geroulo properly exercised his discretion in

imposing a sentence that he deemed appropriate, given, inter alia, (1) the

court’s prior experience with Cary; (2) the impact of the crime on the

victims; (3) Cary’s rehabilitative needs; and (4) Cary’s prior offenses.

Accordingly, Cary is not entitled to relief on this claim.

      In his final issue, Cary argues that Judge Geroulo imposed an illegal

sentence by ordering him to pay $5,800.00 in restitution, where the value of

the items he had pled guilty to stealing, as reflected on the criminal

information, was only $2,700.00. See Brief for Appellant at 16-19.

      Initially, 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. 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.

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J-S53042-15

     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. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012)

(citations and quotation marks omitted); see also Commonwealth v.

Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010).

     Mandatory restitution, as part of a defendant’s sentence, is authorized

by 18 Pa.C.S.A. § 1106, which provides, in relevant part as follows:

     (c) Mandatory restitution.

        (1) The court shall order full restitution:

           (i) Regardless of the current financial resources of
           the defendant, so as to provide the victim with the
           fullest compensation for the loss. …

           ***

        (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(c) (emphasis added).




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      In challenging the $5,800.00 in restitution as being unsupported by

the record, Cary argues that

      the affidavit of probable cause, the criminal information, and
      [Cary’s] guilty plea (written and in court) colloqui[es] identified
      the items stolen from the [victims’] house[,] and which [Cary]
      admitted to “receiving, retaining, or disposing of[,]” as $300.00
      in cash, $600.00 in gift cards, and $1,800.00 in collectible silver
      coins. These items totaled $2,700.00. … [T]he amount of
      restitution should have been limited to these items and their
      value as stated in the criminal information.

Brief for Appellant at 19 (some capitalization omitted); see also id. at 17-18

(citing Commonwealth v. Valent, 463 A.2d 1127, 1128 (Pa. Super. 1983)

(stating that an order of restitution must be supported by the record)).

      Though we understand Cary’s claim concerning the discrepancy

between the two different amounts of restitution that the Commonwealth

asserted he owes,3 he is not entitled to relief on the merits of his legality of

sentence challenge. As noted above, Cary’s counsel stated at sentencing, on

3
   There is scant information in the certified record concerning the two
different amounts of restitution, aside from the statements of counsel at
sentencing. See N.T., 2/18/15, at 2-4. However, the Commonwealth
asserts in its brief that

    the victim impact statement contained a Scranton Police Department
    “Inventory of Items Stolen or Missing” [(“the Inventory”),] which
    itemized each item taken during the course of [Cary’s] crime. Th[e
    Inventory] was attached to the victim impact statement that was
    provided by the victim[s] to the district attorney. The [I]nventory
    included jewelry that was not calculated into the original restitution
    amount.”

Brief for the Commonwealth at 16-17 (emphasis added); cf. Brief for
Appellant at 19 (asserting that Cary “was neither charged with nor pled
guilty to any criminal offense involving jewelry or any other items taken
from the [victims’] house.”) (emphasis omitted). The Inventory is not
contained in the certified record.

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two separate occasions, that although the $5,800.00 in restitution that the

Commonwealth had demanded at sentencing was more than the amount

listed on the criminal information, “[Cary] indicate[d] that he’s willing to

take responsibility for the restitution that’s being demanded.”         N.T.,

2/18/15, at 3; see also id.

      Even assuming, arguendo, that the amount of restitution imposed was

illegal, Cary waived any challenge to the amount of restitution imposed by

expressly and unequivocally agreeing to it at sentencing.          See, e.g.,

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.”)).

      Accordingly, as we discern no abuse of discretion by the court in

sentencing Cary, and he is not entitled to relief on his legality of sentence

challenge, we affirm Cary’s judgment of sentence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




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