J-A09032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

CHRISTIAN PAROLINE

                            Appellant                      No. 812 EDA 2014


       Appeal from the Judgment of Sentence entered February 7, 2014
                  In the Court of Common Pleas of Pike County
    Criminal Division at Nos: CP-52-CR-0000399-2013; CP-52-CR-0000402-
                       2013; and CP-52-CR-0000525-2013


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

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

        Appellant Christian Paroline appeals from the judgment of sentence

entered in the Court of Common Pleas of Pike County (“trial court”), after he

pled guilty to burglary, multiple counts of theft by unlawful taking, and

defiant trespass.1 Upon review, we affirm the original judgment of sentence,

but vacate the amended order of restitution.

        On February 7, 2014, following Appellant’s guilty plea to the foregoing

crimes, the trial court sentenced Appellant to an aggregate term of 2 to 5

years’ imprisonment and ordered him to pay $800.00 in restitution.

Appellant did not file any post-sentence motions.              On March 7, 2014,

Appellant filed a timely appeal.         Upon the trial court’s direction, Appellant
____________________________________________


1
    18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 3503(b)(1)(ii) respectively.
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filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

challenging the discretionary aspects of his sentence.        On April 8, 2014,

while the appeal was pending, 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 $25,447.59 to the victim Nationwide Insurance (“Nationwide”).

Following a hearing, on May 21, 2014 the trial court granted the

Commonwealth’s modification request. On July 30, 2014, Appellant filed an

amended Rule 1925(b) statement, wherein he included a challenge to the

trial court’s modification of restitution imposed.

      On appeal, Appellant raises two issues for our review:

      [1.] Whether the [t]rial [c]ourt imposed an excessive maximum
      sentence under the circumstances when ordering that
      [Appellant] be incarcerated in a State Correctional Facility?

      [2.] Whether the [t]rial [c]ourt erred in correcting [Appellant’s]
      [s]entencing [o]rder more than 3 months after the imposition of
      sentence to provide that [Appellant] pay [r]estitution in the
      amount of $25,447.59[?]


Appellant’s Brief at 8.

      “Initially, we note that when a defendant enters a guilty plea, he or

she waives all defects and defenses except those concerning the validity of

the plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.”    Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.

2012) (citation omitted). “Our law presumes that a defendant who enters a

guilty plea was aware of what he was doing. He bears the burden of proving



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otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011) (citation omitted).        “However, when the plea agreement is open,

containing no bargained for or stated term of sentence, the defendant will

not be precluded from appealing the discretionary aspects of h[is]

sentence.”2 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super.

1999) (citation omitted).

       It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.”         Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011).             Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal.         Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).                As we stated in

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

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:

          [W]e conduct a four-part 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

____________________________________________


2
  The record in this case reveals that Appellant entered into open guilty pleas
to the extent the maximum term of incarceration was subject to the trial
court’s discretion.



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        sentence appealed from is not appropriate under the
        Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.   See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

     Instantly, we conclude Appellant failed to satisfy the Moury test.

Although Appellant filed a timely notice of appeal, he did not preserve his

discretionary aspects sentencing challenge either at sentencing or in a post-

sentence motion. See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa.

Super. 2014) (Appellate review of discretionary aspects of sentencing claims

unavailable when the claims were not raised at sentencing or in a post-

sentence motion); see also Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa. Super. 2013) (“Objections to the discretionary aspects of a sentence are

generally waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.”), appeal denied, 76 A.3d 538

(Pa. 2013). Accordingly, Appellant’s discretionary aspects of sentence claim

is waived.




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

restitution imposed three months after the judgment of sentence. 3 The crux

of Appellant’s argument is that the Commonwealth should have known about

the amount of restitution sought by Nationwide at the time of sentencing.

We, however, need not address this argument.

       We recently determined in Commonwealth v. Weathers, 95 A.3d

908, 912 (Pa. Super. 2014), that a trial court is divested of jurisdiction to

modify the amount of restitution imposed while an appeal from the

judgment of sentence is pending. The Weathers Court reasoned:

       Despite the “at any time” language of section 1106(c)(3), we are
       compelled to conclude that in this case the trial court did not
       have jurisdiction to modify the order of restitution due to
       Appellant’s timely filing of a notice of appeal. While neither the
       Commonwealth nor Appellant focus on the jurisdictional
       implications of Appellant’s filing of a notice of appeal, it is well
       established that “questions of jurisdiction may be raised sua
       sponte.” See Commonwealth v. Coolbaugh, 770 A.2d 788,
       791 (Pa. Super. 2001) (internal citation omitted). After the trial
       court denied Appellant’s post-sentence motion, Appellant filed a
       timely notice of appeal on April 19, 2013. At that point, the trial
       court no longer had jurisdiction to proceed in this matter. See
       Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these
       rules, after an appeal is taken or review of a quasijudicial order
       is sought, the trial court or other government unit may no longer
       proceed further in the matter.”); Commonwealth v. Ledoux,
       768 A.2d 1124, 1125 (Pa. Super. 2001) (“Jurisdiction is vested
       in the Superior Court upon the filing of a timely notice of
       appeal.”).      Nevertheless, the trial court entered an order
       amending the amount of restitution on June 3, 2013. Despite
       the flexibility granted to the court to amend orders of restitution
       under section 1106(c)(3), here the court could not modify the

____________________________________________


3
  Because such an argument relates to the legality of sentence, our standard
of review is be de novo and our scope of review is plenary.             See
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).




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      order of restitution during a period when it did not have
      jurisdiction over the case.


Weathers, 95 A.3d at 912 (footnotes omitted). As a result, the Weathers

Court vacated the trial court’s amended order of restitution, with instructions

that “the trial court may subsequently amend the order of restitution when it

regains jurisdiction, following the conclusion of this appeal, provided that the

court states its reasons for doing so as a matter of record.” Id. at 913.

      The case sub judice is similar to Weathers to the extent the trial court

modified the amount of restitution imposed after an appeal had been filed.

Here, as stated earlier, Appellant appealed the judgment of sentence on

March 7, 2014, and 75 days later on May 21, 2014, the trial court issued an

order modifying restitution. Under Weathers, the trial court did not have

jurisdiction to modify the amount of restitution while Appellant’s appeal was

pending in this Court. Accordingly, we vacate the trial court’s May 21, 2014

order modifying the amount of restitution.         Under Section 1106(c)(3),

however, the trial may subsequently modify the amount of restitution

imposed when it regains jurisdiction, following the conclusion of this appeal,

provided that the court states its reasons for doing so as a matter of record.

See Weathers, supra.

      Judgement of sentence affirmed.       May 21, 2014 order of restitution

vacated. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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