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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                    v.                         :
                                               :
DEBRA MARIE SYCK,                              :
                                               :
                            Appellant          :
                                               :   No. 1008 WDA 2015

              Appeal from the Judgment of Sentence March 9, 2015
       in the Court of Common Pleas of Allegheny County Criminal Division
                        at No(s): CP-02-CR-0012548-2014

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED FEBRUARY 17, 2016

        Appellant, Debra Marie Syck, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following her guilty

plea to one count of theft property lost, mislaid or delivered by mistake1 and

one count of receiving stolen property.2 Appellant contends the trial court

erred in modifying the restitution order to the victim over thirty days after

sentencing in violation of 18 Pa.C.S. § 1106(c)(3) and 42 Pa.C.S. § 5505.

We vacate the modified restitution order and remand for a new sentencing

hearing limited to the issue of restitution.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3924.
2
    18 Pa.C.S. § 3925(a).
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      On March 9, 2015, following her guilty plea, Appellant was sentenced

to two years’ probation3 and ordered to pay restitution in the amount of

$1,000. On April 14, 2015, the Commonwealth filed a motion to amend the

restitution order. On May 28, 2015, the court entered an order modifying

the restitution order to reflect an amount of $7,761.09. The court did not

offer any reasons for the modification in its order.         This timely appeal

followed.   Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review:

         I. Did the trial court err in granting the Commonwealth’s
         motion to amend the restitution order, as the trial court
         granted the Commonwealth’s motion without placing any
         reasons on the record, the Commonwealth filed the motion
         to amend, and the trial court granted that motion, over 30
         days after sentencing in violation of 18 Pa.C.S.A. §
         1106(c)(3) and 42 Pa.C.S.A. § 5505.

Appellant’s Brief at 5.

      Appellant contends the trial court erred in modifying the restitution

order without giving the reasons for the modification on the record. Id. at

11. Because the modified order was entered more than thirty days after the




3
 The docket indicates that the trial court sentenced Appellant to no further
penalty for Count 2.



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initial order was entered, Appellant contends it violated 18 Pa.C.S. §

1106(c)(3)4 and 42 Pa.C.S. § 5505.5 We agree.

        Our review is governed by the following principles:

           In 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. 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.




4
    Section 1106(c)(3) provides:

           (3) The court may, at any time or upon the
           recommendation of the district attorney that is based on
           information received from the victim and the probation
           section of the county or other agent designated by the
           county commissioners of the county with the approval of
           the president judge to collect restitution, alter or amend
           any order of restitution made pursuant to paragraph (2),
           provided, however, that the court states its reasons and
           conclusions as a matter of record for any change or
           amendment to any previous order.

18 Pa.C.S. § 1106(c)(3).
5
    Section 5505 provides:

           Except as otherwise provided or prescribed by law, a court
           upon notice to the parties may modify or rescind any order
           within 30 days after its entry, notwithstanding the prior
           termination of any term of court, if no appeal from such
           order has been taken or allowed.

42 Pa.C.S. § 5505.



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

(quotation marks and citations omitted).

      In Commonwealth v. McKee, 38 A.3d 879 (Pa. Super. 2012), this

Court addressed the issue of the timeliness of the modification of a

restitution order.

         We are cognizant that at first blush, any modification of
         the original restitution order would appear to violate
         Section 5505 of the Judicial Code . . . . However, as noted
         by our Supreme Court in Commonwealth v. Dietrich, [ ]
         970 A.2d 1131 ([Pa.] 2009), Section 1106(c)(3) of the
         Crimes Code authorizes a sentencing court to modify
         restitution orders at any time provided the court states
         its reasons as a matter of record. See id. [ ] at 1135
         (citing 18 Pa. Cons. Stat. Ann. § 1106(c)(3)). The Court in
         Dietrich further determined that “Section 1106(c)(3)’s
         broad language indicates a legislative intent that courts
         have jurisdiction to modify restitution orders at any time
         without regard to when information should have been
         present for consideration.” Id. [ ] at 1135 (emphasis
         added).

Id. at 881-82 (footnote omitted and some emphasis added).          In the case

sub judice, the trial court erred as a matter of law in amending the

restitution order without stating its reasons. See id.

      Next, we consider the remedy. In Commonwealth v. Gentry, 101

A.3d 813 (Pa. Super. 2014), this Court opined:

         [The a]ppellant has not cited any authority for the
         proposition that a defendant should be discharged from
         restitution if the trial court imposes an illegal restitution
         order.     Furthermore, our cases have rejected this
         argument previously. See [Commonwealth v.] Mariani,
         [869 A.2d 484, 487 (Pa. Super. 2005)] (stating the
         remedy as “remand[ing] for resentencing rather than
         vacating the restitution order as [the a]ppellant insists is


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         appropriate[ ]”); [Commonwealth v.] Deshong, [850
         A.2d 712, 716 (Pa. Super. 2004).] (agreeing with the
         Commonwealth that because the “disposition apparently
         alter[ed] the sentencing scheme of the trial court, we must
         vacate the sentence and remand for resentencing[ ]”)
         (internal quotation marks omitted). As a result, we agree
         with the Commonwealth that the appropriate remedy is for
         the trial court to have an opportunity to impose a new
         restitution order.

Id. at 819.    Analogously, in the instant case, we vacate the modified

restitution order and remand for the trial court to conduct a new sentencing

hearing limited to the issue of restitution. See id.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2016




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