J-A26014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD JOSEPH DINELLO, JR.

                            Appellant                 No. 1810 MDA 2014


            Appeal from the Judgment of Sentence of July 17, 2014
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0003432-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED DECEMBER 17, 2015

       Donald Dinello appeals the July 17, 2014 judgment of sentence.

Herein, Dinello raises multiple challenges to the trial court’s exercise of its

discretion in fashioning Dinello’s sentence. We reject those challenges, and

we affirm the judgment of sentence.

       In 2012, the Attorney General’s Office began investigating Dinello, a

licensed dentist, for illegally prescribing oxycodone to one of his employees,

Rachel Amato, and her husband, Mark Amato.          Dinello prescribed the pills

not for any dental procedure or condition, but instead for the Amatos’

complaint of back pain. In total, the Attorney General’s Office determined

that Dinello illegally had prescribed 2700 pills. Additionally, the investigation

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A26014-15



produced evidence that Dinello had stolen dental supplies, mostly dental

implants, from Oral Surgery Associates without his partner in that office

knowing.    Dinello then sold the supplies at a discounted rate to another

dental office, where Dinello also was employed. Dinello kept the proceeds

from these sales for personal use.

      Following a grand jury investigation, which recommended filing

criminal charges against Dinello, and formal charges by the Attorney

General, Dinello appeared before the trial court in this case to enter guilty

pleas. On March 28, 2014, Dinello pleaded guilty to three counts of failure

to keep records of disposition of controlled substances, 35 P.S. § 780-

113(a)(21), and one count of theft by failure to make required disposition of

funds.     18 Pa.C.S. § 3927.             As part of the plea agreement, the

Commonwealth      agreed       that      it     would   not   make     any    particular

recommendation      to   the     trial        court   regarding   Dinello’s   sentence.

Nonetheless, on July 9, 2014, the Commonwealth filed with the trial court a

letter in which it detailed the crimes committed by Dinello, and requested

permission to present oral argument at the time of sentencing. On July 10,

2014, Dinello’s counsel filed a sentencing memorandum with the court

detailing all of Dinello’s background, as well as other mitigating evidence

including a large quantity of letters that were submitted on Dinello’s behalf.

      On July 17, 2014, the trial court imposed an aggregate sentence of

fifteen to thirty months’ incarceration. Even though the maximum sentence

exceeded two years, the trial court ordered that Dinello could serve the

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sentence in a county facility and could participate in a work release program

while there. The Commonwealth did not object to the sentence as ordered.

However, neither the parties nor the court considered whether the county

jail   had   the    current   capacity   to    incarcerate   Dinello   under   these

circumstances. The trial court also ordered Dinello to pay restitution for the

stolen goods in the amount of $84,550.

       On July 22, 2014, the Commonwealth informed the trial court by letter

that the county jail had reported to the Commonwealth that it was at 140%

capacity, and that, under those circumstances, it could not house Dinello to

serve his sentence. Dinello’s counsel responded by sending a letter to the

trial court requesting that the court carry out its intended sentence by

ordering Dinello to serve the same amount of time on intermediate

punishment.        On July 28, 2014, Dinello filed a motion to modify his

sentence, in which Dinello contended that the amount of restitution was not

supported by the evidence and that the sentence was excessive, and did not

reflect the mitigating information submitted by Dinello.

       On October 1, 2014, the trial court held a hearing on Dinello’s motion.

At the hearing, despite agreeing to not make any specific recommendations

regarding the sentence, the Commonwealth urged the trial court to modify

the sentence from the original sentence to a sentence in a state prison. The

trial court repeatedly stated that, at all times throughout the proceedings,

the court believed that Dinello should be incarcerated.         Thus, because the

county jail could not house Dinello, the trial court modified the sentence to

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be served in a state prison. The length of the actual sentence remained the

same, fifteen to thirty months. However, Dinello no longer was permitted to

serve the sentence in a county jail, and no longer was eligible for work

release. However, because the sentence was modified to a state sentence,

Dinello became eligible for the Recidivism Risk Reduction Incentive (“RRRI”)

program, 61 Pa.C.S. §§ 4501–12.       Because Dinello was RRRI-eligible, the

trial court then reduced his minimum release date from fifteen months to

twelve months. The trial court did not modify the restitution award.

      On October 27, 2014, Dinello filed a notice of appeal. In response, the

trial court directed Dinello to file a concise statement of errors complained of

on appeal. On December 12, 2014, Dinello timely complied. On April 13,

2015, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Dinello raises the following questions for our review:

      A. Whether the trial court erred by imposing a sentence which
         violates the sentencing code?

      B. Whether the trial court abused its discretion by imposing an
         excessive and unreasonable aggregate sentence by running
         the sentences for each count consecutive to each other?

      C. Whether the trial court erred by ordering restitution in an
         amount not supported by the record evidence?

      D. Whether the trial court erred by failing to rule on [Dinello’s]
         motion to strike restitution order?

Brief for Dinello at 5.

      Dinello’s first two issues are challenges to the discretionary aspects of

his sentence. See Commonwealth v. Fullin, 892 A.2d 843, 850-52 (Pa.


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Super. 2006) (considering a challenge to a trial court’s decision to commit

an offender to a state prison instead of a county facility as a challenge to the

discretionary aspects of the sentence); Commonwealth v. Gonzalez–

Dejusus, 994 A.2d 595, 597-98 (Pa. Super. 2010) (holding that a claim that

an aggregate sentence involving the imposition of consecutive sentences

was excessive was a challenge to the discretionary aspects of sentencing).

An appellant is not entitled to review of such challenges as of right. Instead,

we conduct a four-part jurisdictional analysis to determine:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal

quotation marks, citations, and modifications omitted).

      Instantly, Dinello has filed both a timely notice of appeal and a timely

post-sentence motion to modify his sentence.         Additionally, Dinello has

complied with Rule 2119(f), and has filed a concise statement of the reasons

why this Court should consider his challenges to the discretionary aspects of

his sentence.   See Brief for Dinello at 24-25.    Thus, Dinello has complied

with the procedural requirements to invoke our jurisdiction.      The question

then becomes whether Dinello has demonstrated within his Rule 2119(f)




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statement that his challenges present substantial questions with regard to

each of his challenges.

      A substantial question will be found where an appellant advances
      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 which underlie the
      sentencing process. At a minimum, the Rule 2119(f) statement
      must articulate what particular provision of the code is violated,
      what fundamental norms the sentence violates, and the manner
      in which it violates that norm.

Commonwealth v. Bullock, 948 A.2d 818, 826 n. 6 (Pa. Super. 2008)

(citation omitted).

      In his first challenge to his sentence, Dinello argues that the trial court

abused its discretion by sentencing him to serve his sentence in state prison,

instead of in the county jail, as was ordered originally. As noted, such an

argument generally suggests a basic challenge to the trial court’s discretion,

and would not amount to a substantial question.          However, Dinello also

argues that the court’s modification amounted to an increase in his

sentence, one that was imposed without a formal post-sentence request to

do so by the Commonwealth. Considering these together, we conclude that

Dinello has presented a substantial question sufficient to invoke our

jurisdiction to review this issue.

      Dinello also argues that the trial court violated the Sentencing Code by

failing to “effectuate its prior order of work release.” Brief for Dinello at 24.

Essentially, Dinello maintains that the trial court should not have modified its

original sentencing order, which included the court’s authorization for Dinello

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to be released from the county jail for work release. Because this argument

is dependent upon the court’s decision to sentence Dinello to a state facility,

which we have found creates a substantial question, we will review this issue

in conjunction with the first issue, and conclude that it too presents a

substantial question.

      Next, Dinello argues that the trial court abused its discretion by

refusing his request to serve his sentence on intermediate punishment,

instead of total confinement. Dinello does not articulate how this particular

argument either violates the Sentencing Code or represents a deviation from

the fundamental norms of sentencing. Hence, Dinello has not presented a

substantial question with regard to this particular argument.

      Finally, Dinello argues that his aggregate sentence is excessive and

unreasonable, was not crafted with the purpose of protecting the public and

was not proportionate to the gravity of the offense, and was imposed

without consideration of Dinello’s rehabilitative needs. Generally, claims of

excessiveness and failure to consider rehabilitative needs do not, by

themselves, raise substantial questions.        However, when presented in

conjunction   with    one   another,   they   create   a   substantial   question.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Thus,

based upon the argument Dinello presents in his Rule 2119(f) statement, we

conclude that he has raised a substantial question.

      We turn now to the merits of Dinello’s claims.         We begin with our

standard of review:

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       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. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc)

(quotations and citations omitted).

       The crux of Dinello’s first issue is that the trial court erred when it

modified his sentence during the post-sentence motion hearing.              More

specifically, Dinello claims that the change of the location where he was

ordered to serve his sentence, from a county facility to a state facility,

constituted an increase in his sentence. Such an increase, Dinello argues,

cannot occur unless the Commonwealth first asks the court to increase the

sentence in a post-sentence motion.              We disagree that the change

constituted an increase, and we hold that the trial court did not abuse its

discretion when it modified the sentence.1

____________________________________________


1
       In his brief, Dinello presents this question as a challenge to the legality
of his sentence. See Brief for Dinello at 26. However, earlier in his brief, he
characterized the issue as one implicating the discretionary aspects of his
sentence.     Id. at 24.      As noted earlier, this Court has characterized
questions involving the trial court’s decision to require an offender to serve
qualifying sentences at a county facility or a state facility as falling within a
trial court’s discretion. See Fullin, supra. Nonetheless, because we have
found that the issue creates a substantial question, we review the issue on
its merits.     The designation of whether this is a discretionary aspect
challenge or a legal challenge does not impact our resolution of this case.



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      Following Dinello’s guilty plea, the trial court consistently maintained

that it believed that Dinello must be incarcerated as punishment for his

offenses. At the original sentencing, the court sentenced Dinello to fifteen to

thirty months’ incarceration.          At the end of the hearing, the court

determined, without objection from the Commonwealth, that Dinello could

serve the sentence in the county jail.        Counsel for Dinello requested that

Dinello be declared eligible, inter alia, for work release.      The trial court

accepted counsel’s requests, and fashioned the sentence accordingly.

      Shortly thereafter, the Commonwealth learned that the county jail was

at 140% capacity and would not accept a prisoner who was serving a

sentence    that, by   its   length,   qualified as a   state   sentence.   The

Commonwealth promptly informed the trial court of this development by

letter. The letter was sent to the court on July 22, 2014, less than a week

after sentencing. Dinello then filed a post-sentence motion. At the hearing

on the motion, the trial court realized that the sentence could not remain as

it was originally imposed because the jail could not certify that space was

available to house Dinello.        See 42 Pa.C.S. § 9762(b)(2)(i) (“The chief

administrator of the county prison, or the administrator’s designee, has

certified that the county prison is available for the commitment of persons

sentenced to maximum terms of two or more years but less than five

years.”).   Therefore, the court imposed the same sentence as it had

originally ordered, but required that the incarceration be spent in a state

prison instead of a county jail.

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      Dinello contests the modification of his sentence primarily in reliance

upon this Court’s decision in Commonwealth v. Nickens, 923 A.2d 469

(Pa. Super. 2007).   In that case, the appellant, after having violated his

probation multiple times, received an aggregate sentence of twenty to

seventy-two months in prison.     Id. at 471.     The appellant filed a post-

sentence motion within ten days of the sentence. After the ten-day period

expired, the Commonwealth filed a response to the post-sentence motion, as

well as “new matter,” in which the Commonwealth requested that the trial

court increase the appellant’s sentence.        The trial court denied the

appellant’s motion, but granted the Commonwealth’s request and increased

the appellant’s aggregate sentence. Id.

      On appeal, we vacated the sentence and remanded for the trial court

to reinstate the original sentence.    We explained that a trial court cannot

increase a sentence based only upon a defendant’s post-sentence motion,

because a trial court cannot raise issues (such as increasing a sentence) sua

sponte. Id. at 472 (citing Commonwealth v. Broadie, 489 A.2d 218, 222

n.5 (Pa. Super. 1985)). In order for a trial court to increase a sentence, the

Commonwealth must file its own post-sentence motion requesting as much.

Nickens, 923 A.2d at 471-3.     In Nickens, the Commonwealth raised the

issue in “new matter” in an answer to the appellant’s post-sentence motion,

which was filed after the ten-day period in which post-sentence motions

must be filed.   See Pa.R.Crim.P. 720(A)(1).     We noted that no authority

existed that would permit the Commonwealth to raise new issues in such a

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manner. However, in a footnote, we explained that, because the submission

was untimely, we need not decide the issue of whether the response and

“new matter” could be construed together as a post-sentence motion had

they been filed within ten days. Nickens, 923 A.2d at 472 n.4.

     Nickens undisputedly stands for the proposition that the only way in

which a trial court can increase a sentence on post-sentence motions is by

filing a timely post-sentence motion that requests such action.     At first

blush, it would seem that Nickens compels relief in this case, as Dinello

contends.   However, upon closer inspection, it becomes apparent that

Nickens is distinguishable for one important reason: Dinello’s sentence was

not increased.

     At the original sentencing hearing, the trial court imposed a sentence

of fifteen to thirty months’ incarceration. At the second hearing, the court

imposed a sentence of exactly the same length. The only thing that changed

was the location at which Dinello had to serve the sentence. In other words,

the length of his sentence did not increase; it was only the place at which

Dinello had to serve the sentence that changed.         Nothing in Nickens

indicates that “increase” means anything other than the length of the

sentence. Presently, Dinello maintains that the sentence increased because

he no longer is eligible for work release and will not enjoy the comforts of

serving his sentence at a location close to his home and family.     Dinello

provides no cases from this Court, or any court, in support of such an

expansive definition of “increase.”     Nickens provides no support for the

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notion that changing the place of incarceration is the same as increasing the

length of the sentence. Finally, although not dispositive, it is worth noting

that the modification in the sentence made Dinello eligible for the RRRI

program, meaning that the date at which he is eligible for release is three

months shorter than it was in his original sentence. Arguably, the duration

of his sentence may actually have decreased, not increased.

       For these reasons, we detect no errors or abuses of the court’s

discretion when it modified Dinello’s sentence. Simply put, the court did not

increase the sentence, and, therefore, Nickens does not apply here.2

       Dinello’s next argument is entirely dependent upon his first.   Dinello

contends that the trial court erred by abandoning its original grant of work

release. Work release is only an option when the defendant is sentenced to

serve a term of incarceration in a county jail.    See 42 Pa.C.S. § 9813(a)

(providing that a person who is sentenced to serve a jail term of less than

five years in a county jail may be approved for work release). Because we

have concluded above that the modification from a county jail sentence to a




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2
     Notably, like the Court in Nickens, we need not decide whether the
Commonwealth’s July 22, 2014 letter could be construed as a post-sentence
motion. However, we note that, unlike the pleading in Nickens, the
Commonwealth’s letter here was submitted within ten days of the date of
sentence.



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state sentence was not erroneous or an abuse of discretion, this argument

necessarily fails as well.3

       In his second issue, Dinello contends that the trial court “abused its

discretion by imposing an excessive and unreasonable aggregate sentence

by running the sentences for each count consecutive to one

another.” Brief for Dinello at 33 (emphasis added). We have highlighted

this particular portion of Dinello’s statement of his argument because it

differs significantly from the argument that he suggested as presenting a

substantial question in his Rule 2119(f) statement.          In that statement,

Dinello argued only that his sentence was excessive and was imposed

without consideration for his rehabilitative needs. However, in the argument

section of his brief, Dinello’s principal claim is that the trial court abused its

discretion by imposing consecutive, rather than concurrent sentences, with

the above-highlighted portion being only one example of many such

assertions.     Dinello did not include any discussion in his Rule 2119(f)

statement about whether that aspect of his sentence constitutes a

substantial question. Thus, we lack jurisdiction to review this issue.



____________________________________________


3
       Dinello makes a third challenge to his sentence. He maintains that the
trial court abused its discretion by rejecting his request to have the sentence
modified from incarceration to intermediate punishment. However, as noted
earlier, Dinello has not demonstrated that this argument constitutes a
substantial question. See supra at 7. Consequently, we lack jurisdiction to
review this issue.



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      In his third issue, Dinello contests the trial court’s restitution award,

maintaining that the amount was not supported by the evidence of record.

“[R]estitution is not simply an award of damages, but, rather, a sentence.”

Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008) (citation

omitted). “An appeal from an order of restitution based upon a claim that

the restitution order is unsupported by the record challenges the legality,

rather than the discretionary aspects, of sentencing.”     Commonwealth v.

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

v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004)). “[T]he 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.”

Atanasio, 997 A.2d at 1183 (quoting Commonwealth v. Hughes, 986

A.2d 159, 160 (Pa. Super. 2009)).

      It is the Commonwealth’s burden of proving its entitlement to
      restitution. Commonwealth v. Boone, 862 A.2d 639, 643 (Pa.
      Super. 2004) (stating that the amount of restitution must be
      supported by the record).            When fashioning an order of
      restitution, the lower court must ensure that the record contains
      the factual basis for the appropriate amount of restitution.
      Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. Super.
      2007). The dollar value of the injury suffered by the victim as a
      result of the crime assists the court in calculating the appropriate
      amount of restitution. Id. The amount of the restitution award
      may not be excessive or speculative. Commonwealth v. Rush,
      909 A.2d 805, 810 (Pa. Super. 2006). It is well-settled that
      “[a]lthough it is mandatory under [18 Pa.C.S. § 1106(c)] to
      award full restitution, it is still necessary that the amount of the
      ‘full restitution’ be determined under the adversarial system with
      considerations of due process.” Commonwealth v. Ortiz, 854
      A.2d 1280, 1282 (Pa. Super. 2004).



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Atanasio, 997 A.2d at 1183 (citation modified).

      After hearing testimony and receiving evidence at sentencing from

both parties, the trial court calculated restitution for the theft of the dental

implants (which were the items that Dinello stole) to be $84,550.        Dinello

contends that this total was inaccurate because the trial court “ignored the

record evidence and issued a restitution amount based on inaccurate

numbers, and which failed to consider the nature of the dispute regarding

the business partnership at issue.” Brief for Dinello at 37. Dinello further

maintains that the trial court arbitrarily used a value of $475 for each dental

implant that he stole, instead of $239, which Dinello maintains was the

actual cost when they were purchased in bulk.       Ultimately, Dinello asserts

that the restitution award “bears no relationship to the alleged harm caused

to” Dinello’s dental partner.

      In large part, Dinello’s argument amounts to a plea to this Court to

reweigh the testimony that the trial court received in his favor. We will not

do so.

      At the sentencing hearing, because no formal audit was performed,

both parties presented their own witnesses regarding the amount. However,

no one could provide a specific and accurate amount of loss to the victim.

The court first had to determine how many dental implants actually were

stolen. The victim, Dinello’s dental partner, testified that 210 implants were

stolen.   However, the practice that was the recipient of Dinello’s stolen

goods indicated that it had received 192 implants.            Each party also

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submitted exhibits and documentation for the court’s review.            Dinello

submitted an exhibit which indicated that 178 implants were at issue.

      From    the   testimony   and     documentation,    the   Commonwealth

maintained that 223 implants were stolen.         Dinello maintained that the

correct number was 178. Initially, the trial court indicated that it would split

the difference between the numbers, and calculate restitution based upon

185 stolen implants.   However, later, to be as fair and accommodating to

Dinello as possible, the trial court agreed to use Dinello’s proffered number

of 178. Thus, that portion of the court’s restitution order undoubtedly was

supported by the record evidence.

      The court and the parties struggled with how much each implant was

worth. Dinello argued that, because no one had submitted a precise value,

determining the cost per implant was impossible. The court noted that the

parties had submitted a range of values through the testimony and the

exhibits.    The low end of the range was approximately $239, which

represented a discounted bulk price that Dinello had paid for some of the

implants, but was not necessarily an accurate reflection of the value of each

implant because each would have been sold at a higher value.              Other

documentation set the value between $422 to $612. The court believed that

the high end of the range was too high.        Ultimately, the court settled on

$475 per implant, which was near the median of the range and fell within

the ranges produced by the parties.




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      The trial court then multiplied the $475 by 178 implants, and set

restitution at $84,550. As we explained, the number was supported by the

evidence, and the Commonwealth met its restitution burden.

      In his final argument, Dinello maintains the trial court failed to rule

upon his motion to strike restitution.   Dinello recognizes that, pursuant to

Pa.R.Crim.P. 720(b)(3)(c), if a judge does not rule upon a post-sentence

motion, that motion is denied automatically at the expiration of one hundred

and twenty days by operation of law. Dinello nonetheless maintains that the

clerk of courts never entered an order confirming that the motion was

denied. However, Dinello does not explain what, if any, remedy would be

available for such a misstep by the trial court or the clerk of courts, and has

not shown that he is entitled to an specific relief. More importantly, Dinello

was not denied review of his challenge to the restitution, and, for the

reasons set forth above, that challenge is meritless.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2015




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