J-S05036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JORDAN CROCKETT

                            Appellant              No. 1159 WDA 2014


                   Appeal from the Order entered July 3, 2014
                  In the Court of Common Pleas of Erie County
                Criminal Division at No: CP-25-CR-0000551-2014


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MAY 28, 2015

       Appellant Jordan Crockett appeals from the July 3, 2014 order of the

Court of Common Pleas of Erie County (trial court),1 granting the

Commonwealth’s request for modification of restitution imposed from

$7,000.00 to $5,180.00. Upon review, we vacate the order and remand the

matter to the trial court for resentencing.

       The facts and procedural history underlying this case are uncontested.

Briefly, on April 24, 2014, Appellant pled guilty to simple assault by mutual


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1
  Appellant also appeals from the judgment of sentence entered by the trial
court on June 17, 2014. The issues on this appeal, however, relate only to
the trial court’s July 3, 2014 order modifying the amount of restitution
imposed. Accordingly, we have changed the caption to reflect only the July
3, 2014 order.
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consent2 in connection with punching a 17-year-old victim in the mouth,

thereby “knocking [out] one of the victim’s teeth and requiring surgery to

remove additional teeth.” N.T. Plea, 4/24/14, at 9. On June 17, 2014, the

trial court sentenced Appellant to five to twelve months’ imprisonment and

ordered restitution in the amount of $7,000.00, “subject to verification” by

the Commonwealth within ten days.3 N.T. Sentencing, 6/17/14, at 14-17.

Also, at the time of sentencing, Appellant’s counsel requested a restitution

hearing, which the trial court denied. See id. at 16-17.

        By a letter dated July 3, 2014, the Commonwealth provided

documentation in support of the restitution to be imposed. Specifically, the

Commonwealth provided an invoice from Oral Surgery of Erie (OSE) for a

“limited oral evaluation” in the amount of $80.00, and treatment plan from

OSE for a list of dental procedures for $5,100.00.     See Commonwealth’s

Letter, 7/3/14.       The OSE treatment plan also contained the following

language: “Please note this is only an estimate of fees. Today’s visit is

a separate procedure and charge, NOT INCLUDED with this treatment

plan.” Id. (emphasis in original). Based on the Commonwealth’s letter, the




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2
    18 Pa.C.S.A. § 2701(a)(1).
3
  Victim’s father submitted a claim form indicating that “insurance will not
cover the cost of $7,000.00 for perminent [sic] teeth put in by dentist.”
Restitution Claim Form, 5/12/13.



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trial court on the same day issued an order, modifying the amount of

restitution from $7,000.00 to $5,180.00. See Trial Court Order, 7/3/14.

      By a letter dated July 3, 2014, Appellant lodged another request with

the trial court to hold a restitution hearing.    In support of his request,

Appellant argued, inter alia:

      the documentation provided by the Commonwealth is lacking in
      that:
         •   It clearly states that the figure requested is only an
             “estimate;”
         •   It appears that the surgery has not occurred yet and
             that the fees may depart from the estimate (upwardly
             or downwardly)[.]

Appellant’s Letter, 7/3/14. Appellant, alternatively, asked the trial court to

require the Commonwealth to provide additional documentation in the event

the trial court declined to hold a restitution hearing.   See id.   By a letter

dated the same day, the trial court denied Appellant’s request for a

restitution hearing. Trial Court Letter, 7/7/14. On July 17, 2014, Appellant

timely appealed to this Court.    Following Appellant’s filing of a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, the trial court issued a

Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises a single issue for our review, namely,

“[w]hether the trial court erred when it failed to state its reasons and

conclusions as a matter of record for speculative sum contained in the




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restitution order.”4 Appellant’s Brief at 4. Appellant essentially challenges

the modified restitution amount of $5,180.00 imposed by the trial court on

the theory that the court erred in failing to meet the requirements of 18

Pa.C.S.A. § 1106(c)(3).5 We agree.

       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.6             See 18 Pa.C.S.A. § 1106(c)(3); see also

Commonwealth v. Dietrich, 970 A.2d 1131, 1135 (Pa. 2009) (noting “a

sentencing court may modify restitution orders at any time if the court

states its reasons as a matter of record”). The Supreme Court in Dietrich

applied Section 1106(c)(3) and concluded that the trial court erred in failing

to give its reasons for modification of restitution on the record. Id. As a

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4
  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).
5
  Appellant does not challenge the amount of restitution ordered at
sentencing in this appeal.
6
  Section 1106(C), relating to mandatory restitution, provides in pertinent
part:

       (3) The court may, at any time or upon the recommendation of
       the district attorney that is based on information received from
       the victim . . . 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.A. § 1106(c)(3).




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result, the Court vacated the restitution order and remanded the matter to

the trial court for resentencing. Id.

       Instantly, the record plainly reveals the trial court, like the trial court

in Dietrich, failed to provide on the record its reasons for modifying the

amount of restitution imposed from $7,000.00 to $5,180.00.           Accordingly,

under Dietrich, we must vacate the July 3, 2014 order and remand this

case to the trial court for resentencing.          On remand, the trial court is

directed to provide its reasons for modification on the record.

       Appellant also argues the modified amount of restitution is speculative

and not supported by the record. As directed, the Commonwealth provided

an evaluation invoice ($80.00) and an estimate for a treatment plan by OSE

($5,100.00) for a total of $5,180.00 to the trial court after sentencing.7

Even though we vacate the trial court’s modified restitution order and

remand for resentencing, we shall address this last contention by Appellant,

as this argument may affect the remand proceedings.

       Since restitution is a sentence, the amount ordered must be supported

by the record and may not be speculative or excessive. Commonwealth v.

Dohner,     725    A.2d    822    (Pa.   Super.   1999).   The   Commonwealth’s


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7
  A sentencing court may rely upon hearsay so long as the evidence
possesses sufficient indicia of reliability. See Commonwealth v. Medley,
725 A.2d 1225, 1230 (Pa. Super. 1999), appeal denied, 749 A.2d 468 (Pa.
2000).



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documentation attached to the trial court’s order in support of modified

restitution, if entered into the record, together with the trial court’s reasons

for modification, could suffice to support an order for modified restitution.8

All that is required is that the record support the restitution ordered. Here,

we observe because this case involves ongoing medical expenses with

respect to the victim’s dental repairs, it was impossible for the trial court to

determine accurately the full restitution amount at sentencing. In fact, even

though a more accurate amount appeared to be capable of determination

after sentencing, it appeared the trial court still only was presented with an

estimate of the full cost for restitution to cover the victim’s dental repairs.

This is not always avoidable. As noted by our Supreme Court in Dietrich,

there is tension between having finality in restitution at sentencing and to

have a sentence imposed within 90 days as required under our Rules of

Criminal Procedure. Dietrich, 970 A.2d at 1134. Nonetheless, our Rules of

Criminal Procedure allow a trial court to order restitution at sentencing under

these constraints, so long as the trial court states the basis for determining




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8
  An allegation that the restitution order is unsupported by the record is a
challenge to the legality, rather than to the discretionary aspects of a
sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1182-83 (Pa.
Super. 2010) (citing Commonwealth v. Redman, 864 A.2d 566, 569 (Pa.
Super. 2004)). As we noted earlier, the determination as to whether the
trial court imposed an illegal sentence is a question of law and as such, our
standard of review is plenary. Id.



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the amount at sentencing.9           Id.       The ability to order restitution in this

manner works in tandem with 1106(c)(3) which provides sentencing courts

broad authority to amend restitution orders at any time, if it reasons for

doing so are a matter of record. Id.

       In this case, we do not deem reliance by the trial court upon the most

current estimate for dental repairs to modify restitution to be speculative.

This best estimate may very well provide an appropriate basis for ordering

modified restitution. Upon remand, it will be up to the trial court to place on

the record the nature of the evidence relied upon to modify restitution and

its reasons for doing so.

       Order vacated. Case remanded. Jurisdiction relinquished.

       Judge Donohue joins the memorandum.

       Judge Shogan concurs in the result.




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9
  We recognize this observation in Dietrich was with regard to information
known at the time of sentencing and not when a restitution order is sought
to be modified. We discern no reason why this same logic cannot be applied
to modification proceedings when the amount of restitution can be further
refined, especially when Section 1106(c)(3) permits a court to modify
restitution at any time.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2015




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