J-A04031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO MAURICE CLARK                      :
                                               :   No. 997 MDA 2017
                       Appellant

              Appeal from the Judgment of Sentence April 20, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005877-2016


BEFORE: STABILE, J., NICHOLS, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                               FILED MARCH 27, 2018

        Appellant, Antonio Maurice Clark, appeals from the judgment of

sentence1 of six months of probation plus fines, costs and restitution in the

amount of $7,723.75, imposed April 20, 2017, following a guilty plea resulting

in his conviction for driving under the influence (general impairment), driving

while operating privilege is suspended or revoked, and careless driving.2 We

vacate and remand for resentencing.

____________________________________________


1 Appellant purports to appeal from the order denying his post-sentence
motion. Appellant's appeal properly lies from the modified judgment of
sentence entered on April 20, 2017, not the order denying his post-sentence
motion. See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.
Super. 2003) (en banc); Commonwealth v. Broadie, 489 A.2d 218, 220
(Pa. Super. 1985), appeal denied, (Pa. Oct. 21, 1985) (“A modified sentence
constitutes a new sentence from the date of which the time for filing a notice
of appeal will begin to run anew”).

2   75 Pa.C.S. §§ 3802(a)(1), 1543(a), and 3714(a), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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      The following factual and procedural history is garnered from the record.

The instant convictions stem from a vehicle accident in August 2016, wherein

Appellant damaged two vehicles and injuries resulted. Notes of Testimony

(N.T.), 3/2/2017, at 2-3. On March 2, 2017, Appellant entered a guilty plea

to driving under the influence, driving while operating privilege is suspended

or revoked, and careless driving. Id. at 2-4. That same day, Appellant was

sentenced to six months probation plus fines and costs. Id. at 5. A restitution

hearing was scheduled for later that month. Following the hearing, Appellant

was ordered to pay the $500 deductible of Kristen Brode, a victim who was

present at the hearing, in restitution. N.T., 3/29/2017, at 2-3. The second

victim in the incident, Quayshana Wiley, did not appear at the hearing. Id.

at 2-6. The court specifically noted that it wanted to determine Appellant’s

restitution to Ms. Wiley less any amounts covered by insurance for her medical

expenses or vehicle damage.         Id. at 5-6.      The Court granted the

Commonwealth ten days to determine the amount of expenses for which Ms.

Wiley would be responsible for payment out of pocket. Id.

      In April 2017, the Commonwealth filed a motion to amend the

restitution, requesting that Appellant pay $7,723.75 ($1,146.75 vehicle value

+ $6,577.00 medical bill) to Ms. Wiley. Commonwealth’s Motion to Amend

Restitution, 4/19/2017, at 2-8.    The next day, the trial court granted the

Commonwealth’s motion by completing a suggested order the Commonwealth

provided in its motion. Order of the Court, 4/20/2017. In May 2017, Appellant

timely filed a post-sentence motion, averring that the amount ordered to be

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paid to Ms. Wiley was excessive and violated Appellant’s due process rights.

Defendant’s Post-sentence Motion, 5/2/2017, at 3-5.        The Commonwealth

filed a response. In June 2017, the court denied Appellant’s post-sentence

motion.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

      Appellant presents the following questions for our review:

      1.    Whether the trial court lacked the jurisdiction to issue an
      order amending restitution fifty (50) days after sentencing, and if
      so, was that order the equivalent of an illegal sentence?

      2.    Whether the trial court erred when it denied Appellant’s post-
      sentence motion for modification of sentence where Appellant’s
      sentence of paying restitution in the amount of seven thousand
      seven hundred twenty-three dollars and seventy five cents
      ($7,723.75) is excessive and unreasonable such that it constitutes
      too severe a punishment in light of Appellant’s rehabilitative needs
      and what is needed to protect the public?

      3.    Whether the trial court violated [Appellant’s] due process
      rights in determining and ordering restitution without a hearing?

Appellant’s Brief at 6.

      In his first claim, Appellant raises a number of arguments in support of

his challenge to the legality of his sentence.     Appellant’s Brief at 14-16.

Appellant asserts that the trial court (1) lacked jurisdiction to amend his

sentence fifty days after the imposition of his original sentence, (2) failed to

order an amount of restitution at the time of sentencing, (3) failed to place its

reasons for modification on the record, and that (4) there was no evidence of

causation between Appellant’s actions and the amount of restitution due to


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Ms. Wiley. Id. Appellant has failed to support his assertions with citations to

legal authority; therefore, his claims are under developed, and he risks

waiver.3    Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)

(Defendant waived his claim of error where he cited no legal authority to

support his assertions and developed no cogent argument), appeal denied 95

A.3d 275 (Pa. 2014); Pa.R.A.P., Rule 2119.

       Nevertheless, we note, “it is well settled that this Court may address the

legality of a sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d

352, 357 (Pa. Super. 2017) (citing Commonwealth v. Infante, 63 A.3d 358,

363 (Pa. Super. 2013)). Our standard of review in a challenge to the legality

of sentence is de novo, and our scope of review is plenary.                 See

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

       Here, the trial court sought to impose restitution as part of Appellant’s

direct sentence, as evidenced by the court’s reliance on 18 Pa.C.S. § 1106.




____________________________________________


3 Though raised for the first time on appeal, Appellant’s claim challenging the
legality of his sentence and his argument that the court lacked jurisdiction
may be raised at any stage of proceedings. See Commonwealth v. Jones,
929 A.2d 205, 210 (Pa. 2007) (“challenges to subject matter jurisdiction
cannot be waived” and may be raised at any stage of proceedings) (citing
Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974)); Commonwealth
v. Foster, 17 A.3d 332, 334 n.1 (Pa. 2011) (“A challenge to the legality of
sentence, however, need not be preserved and is never waivable.”) (citing In
re M.W., 555 Pa. 505, 725 A.2d 729 (1999)).



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See Trial Court Opinion, 8/1/2017, at 2.4           As our Supreme Court has

explained:

       [R]estitution must properly be included in a sentence.
       Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa. Super.
       2002); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa.
       Super. 1990). Section 1106(c)(2) provides that “[a]t the time of
       sentencing the court shall specify the amount and method of
       restitution.” 18 Pa.C.S. § 1106(c)(2). Further, “[i]t 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; ... based
       upon information solicited by the district attorney and received
       from the victim.” Id., [18 Pa.C.S.] § 1106(c)(4)(i). In Dinoia,
       the Superior Court held these requirements “provide[ ] the
       defendant with certainty as to his sentence, and at the same time
       allow[ ]for subsequent modification [pursuant to § 1106(c)], if
       necessary.” Dinoia, at 1257.

Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (some

formatting added). Failure to comply with Section 1106(c)(2) results in an

illegal sentence. Commonwealth v. Mariani, 869 A.2d 484, 485-86 (Pa.

Super. 2005) (invalidating trial court’s order at the sentencing hearing which

failed to specify both the amount and method of restitution and postponed

determining same until after sentencing hearing); Commonwealth v.

Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004) (same) (citing Dinoia,




____________________________________________


4 “Restitution is authorized under both the Crimes Code and under the
Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106, controls restitution
as a direct sentence. The Sentencing Code, in 42 Pa.C.S. § 9754, permits a
sentence of probation and offers a non-exclusive list of permissible conditions
of probation, including restitution.” Commonwealth v. Deshong, 850 A.2d
712, 715–16 (Pa. Super. 2004).

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801 A.2d at 1257 n.1); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa.

Super. 1990) (same).

      Rather than setting the amount and method of restitution at the time of

sentencing, the court ordered a subsequent hearing to determine the amount

of restitution due each victim. N.T., 3/2/2017, at 5-6. As the court failed to

comply with Section 1106(c)(2), Appellant’s sentence is illegal. Mariani, 869

A.2d at 486-87.

      Further, in its subsequent order, issued April 20, 2017, which modified

the amount of restitution imposed, the court further erred. 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.         18

Pa.C.S. § 1106(c)(3); see also Dietrich, 970 A.2d at 1135 (vacating and

remanding amended restitution order where trial court’s failure provide

reasons for modification as a matter of record rendered the order out of

compliance with 18 Pa.C.S. § 1106(c)(3)).

      In the instant matter, the trial court has conceded that its April 20, 2017

order “did not contain a specific recitation of [its] reasoning.”    Trial Court

Opinion, 8/1/2017 at 2-3.       Accordingly, we are constrained to vacate

Appellant’s sentence on this ground as well. Dietrich, 970 A.2d at 1135; 18

Pa.C.S. § 1106(c)(3).

      The court intended Appellant’s sentence to consist of both probation and

monetary elements that were not imposed contemporaneously.            Thus, the



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Appellant’s sentence is illegal. Mariani, 869 A.2d at 486–87 (“[T]he illegality

of one part invalidates the whole.”). When a disposition by an appellate court

alters the sentencing scheme, the entire sentence should be vacated and the

matter remanded for resentencing.              Deshong, 850 A.2d at 714 (citing

Commonwealth           v.    Goldhammer,         517   A.2d   1280    (Pa.   1986),

Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002)).5

       Accordingly, we vacate the judgment of sentence as rendered final by

the trial court’s April 20, 2017 order and remand for resentencing in

compliance with 18 Pa.C.S.A. § 1106(c).

       Judgment of sentence vacated.               Case remanded.       Jurisdiction

relinquished.




____________________________________________


5 At the restitution hearing and in its opinion, the trial court explicitly explained
that it sought to consider amounts tendered from the victims’ respective
insurance companies to determine the amounts of restitution to be paid as a
result of the accident. See N.T., 3/29/2017, at 2-6; Trial Court Opinion,
8/1/2017, at 2-3. This, too, is improper. See 18 Pa.C.S. § 1106(c)(1)(i)
(“The court shall not reduce a restitution award by any amount that the victim
has received from an insurance company but shall order the defendant to pay
any restitution ordered for loss previously compensated by an insurance
company to the insurance company.”). In light of our disposition, we do not
reach the merits of Appellant’s remaining issue on appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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