J-S63018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT M. MILAZZO

                            Appellant                  No. 429 EDA 2015


           Appeal from the Judgment of Sentence December 30, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000687-2012


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 04, 2015

        Appellant, Robert M. Milazzo, appeals from the December 30, 2014

sentence of nine to twenty-three months’ imprisonment, plus restitution in

the amount of $153,693.49, following his guilty plea to one count of

burglary.1 After careful review, we affirm.

        The trial court provided the relevant procedural history of this case as

follows.

                     On May 1[7], 2013, [Appellant] pled guilty to
              Count I of the criminal information, [b]urglary,
              graded as a felony of the second degree.          The
              offense involved the large scale theft of a jewelry
              store.    On May 1[7], 2013, th[e trial c]ourt
              sentenced [Appellant] to a term of incarceration for a
              period of not less than 9 months with a maximum
____________________________________________


1
    18 Pa.C.S.A. § 3502(a).
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              not to exceed 23 months. A restitution hearing was
              requested and held on August 29, 2013.              On
              November 27, 2013, th[e trial c]ourt ordered
              [Appellant] to pay restitution to the victim in the
              amount of $153,693.49. Thereafter, on December
              27, 2013, [Appellant] filed his [n]otice of [a]ppeal to
              the Pennsylvania Superior Court (“Superior Court”).
              On November 25, 2014, the Superior Court filed a
              non-precedential decision which remanded this case
              back to th[e trial c]ourt for resentencing.[2] … [T]he
              Superior Court remanded the matter back to th[e
              trial c]ourt because the judgment of sentence failed
              to specify the exact amount of restitution imposed.

Trial Court Opinion, 3/30/15, at 1-2.3

       On December 30, 2014, in accordance with the directive of this Court,

the trial court re-sentenced Appellant to a period of imprisonment of nine to

twenty-three months and to pay restitution in the amount of $153,693.49.

On January 9, 2015, Appellant filed a motion to reconsider sentence, and the

trial court denied said motion on January 12, 2015. On February 10, 2015,

Appellant filed a timely notice of appeal.4

____________________________________________


2
   Commonwealth v. Milazzo,                    113   A.3d   358   (Pa.   Super.   2014)
(unpublished memorandum).
3
 The trial court opinion does not contain pagination. For ease of reference,
we have assigned each page a corresponding page number.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.

     At the time the trial court re-sentenced Appellant, it imposed the same
sentence of imprisonment initially imposed but noted that at the time of re-
sentencing, Appellant had served his term of incarceration. Trial Court
Order, 12/30/14, at 2. Therefore, the trial court ordered discharge subject
(Footnote Continued Next Page)


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      On    appeal,       Appellant     presents     the   following    issue   for   our

consideration.


             I. Whether the [trial] court erred in imposing an
             illegal sentence for restitution in an amount not
             supported by the record?

Appellant’s Brief at 4.

      We acknowledge, “[a]n 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.”

Commonwealth v. Stradley, 50 A.3d 769, 771-772 (Pa. Super. 2012)

(internal quotation marks and citations omitted).              “Issues relating to the

legality of a sentence are questions of law[; as a result o]ur standard of

review over such questions is de novo and our scope of review is plenary.”

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

omitted). However, before we may proceed to an analysis on the merits, we

must first examine whether the law of the case doctrine precludes our

review. See Commonwealth v. Schultz, 116 A.3d 1116, 1122 (Pa. Super.

2015).

      As noted, Appellant filed a notice of appeal from the trial court’s

original order for restitution on December 27, 2013, and this Court

                       _______________________
(Footnote Continued)

to the requirement to pay restitution.             Id.   Appellant only challenges the
restitution portion of his sentence.



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considered said appeal.     In that appeal, Appellant advanced precisely the

same issue as he presents in the instant appeal.      Specifically, in the prior

appeal, Appellant sought review of the following issue “[w]hether the court

erred in imposing an illegal sentence for restitution in an amount not

supported by the record[?]” Milazzo, supra at *6, quoting Appellant’s Brief

at 4.     The prior panel thoroughly addressed Appellant’s argument and

concluded “the amount of restitution was supported by the record[.]” Id. at

*8. The panel then remanded this case for the sole purpose of “amend[ing

the sentence] to include the amount of restitution awarded on November 27,

2013[, i.e., $153,693.49.]”     Id. at 12.   On remand, the trial court re-

sentenced Appellant as directed, prompting the current appeal.

        Our Supreme Court has articulated the following rules that embody the

law of the case doctrine.

              (1) [U]pon remand for further proceedings, a trial
             court may not alter the resolution of a legal question
             previously decided by the appellate court in the
             matter; (2) upon a second appeal, an appellate
             court may not alter the resolution of a legal
             question previously decided by the same
             appellate court; and (3) upon transfer of a matter
             between trial judges of coordinate jurisdiction, the
             transferee trial court may not alter the resolution of
             a legal question previously decided by the transferor
             court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis

added). This doctrine is important to our jurisprudence, as its application,




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inter alia, promotes consistency and uniformity in the law and protects the

expectations of the parties. See id.

       Instantly, Appellant presents the same legal question in the present

appeal as the one he advanced in his prior appeal, i.e., whether the record

supports the amount of restitution imposed. Upon remand, the trial court

re-sentenced Appellant to pay restitution in the exact amount as the amount

Appellant complained of in his first appeal, consistent with this Court’s prior

instruction. Therefore, because the prior panel resolved the identical legal

question, we may not disrupt the previously resolved legal conclusion of this

Court. 5 See id.

       Based on the foregoing, we conclude Appellant is not entitled to relief.

Accordingly, we affirm the trial court’s December 30, 2014 sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2015



____________________________________________


5
  We note Appellant’s argument supporting his claim of error is identical to
the one he presented in the prior appeal.



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