J. A12032/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
BRANDI LEA WYDO-STREIT,                  :         No. 1650 WDA 2018
                                         :
                         Appellant       :


         Appeal from the Judgment of Sentence, September 14, 2018,
               in the Court of Common Pleas of Greene County
              Criminal Division at No. CP-30-CR-0000231-2017


BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 7, 2019

        Brandi Lea Wydo-Streit appeals1 from the September 14, 2018

aggregate judgment of sentence of 1 to 2 years’ imprisonment, followed by

5 years’ probation, imposed after she pled guilty to 89 counts of theft by

unlawful taking or disposition (hereinafter, “theft”).2   The sentencing court

ordered appellant to pay reparations to the victim, Carmichaels Borough, in

the amount of $24,965.11. The sentencing court also ordered appellant to

pay Carmichaels Borough an additional $15,430 for the costs it incurred in


1 We note that although appellant purports to appeal from the October 26,
2018 order denying her post-sentence motion for reconsideration of sentence,
a direct appeal in a criminal case is properly taken from a judgment of
sentence. See Commonwealth v. Yancoskie, 915 A.2d 111, 112 n.1
(Pa.Super. 2006), appeal denied, 927 A.2d 625 (Pa. 2007), cert. denied,
552 U.S. 1111 (2008). We have corrected the caption accordingly.

2   18 Pa.C.S.A. § 3921(a).
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having Cypher & Cypher conduct a financial audit. After careful review, we

affirm the judgment of sentence.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On June 28, 2017, appellant was charged

with 89 counts each of theft and forgery3 in connection with her theft of nearly

$75,000 while employed as the Borough Manager of Carmichaels Borough, a

small municipality located in Greene County.      On June 6, 2018, appellant

entered an open guilty plea to 89 counts of theft, and the Commonwealth

nolle prosed the forgery charges. Following the completion of a pre-sentence

investigation (“PSI”) report, appellant proceeded to a sentencing hearing on

August 3, 2018. At said hearing, the sentencing court sentenced appellant as

follows:

             [W]ith regard to the first 12 counts, the Court hereby
             sentences [appellant] to a period of incarceration of
             not less than 30 days nor more than 60 days with each
             sentence to run consecutive for a total sentence of not
             less than one year nor more than two years.

Notes of testimony, 8/3/18 at 46. Appellant was sentenced to a consecutive

term of 5 years’ probation on the remaining counts. (Id. at 47-48.) The

August 3, 2018 sentencing order further clarified that appellant’s “total

sentence imposed . . . is for . . . not less than one year nor more than two

years[’]” imprisonment to be served in the state prison system.           (See

sentencing order, 8/3/18 at ¶¶ 7-8.)


3   18 Pa.C.S.A. § 4101(a)(2).


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      As the sentencing court later explained in its opinion:

            The [c]ourt arrived at the sentence of not less than 1
            nor more than 2 years by imposing a sentence on
            Counts 1-12 to consecutive sentences of not less than
            30 days nor more than 60 days and then on Counts
            13-89, the [sentencing c]ourt sentenced [appellant]
            to a period of 5 years[’] probation consecutive to the
            sentence imposed at Counts 1-12.

Rule 1925(a) opinion, 1/9/19 at 2-3.

      On August 10, 2018, appellant filed a motion for reconsideration,

arguing that her 12 consecutive sentences of 30 to 60 days’ imprisonment

resulted in an aggregate judgment of sentence of 360 to 720 days, not 1 to

2 years.   (See “Motion for Reconsideration,” 8/10/18 at ¶¶ 1-3.)       Thus,

appellant averred that her sentence did not qualify as “a state sentence[.]”

(Id. at ¶ 3.) On August 13, 2018, the sentencing court entered an order that

granted appellant’s motion for reconsideration, vacated its August 3, 2018

judgment of sentence, and released appellant on bail pending the rescheduling

of sentencing. In so ruling, the sentencing court stated that it was

            the Court’s intention was to sentence [appellant] to a
            period of not less than one year nor more than two
            years making it a State sentence. However, the
            sentence as imposed in the aggregate is a number of
            days short of the one to two years.

Order, 8/13/18 at ¶ 2.

      Thereafter, on September 14, 2018, the sentencing court resentenced

appellant, in accordance with its intentions, to consecutive sentences of “not

less than 1 month nor more than 2 months” on Counts 1 through 12 and



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clarified that appellant’s aggregate judgment of sentence remained “not less

than 1 year nor more than 2 years[.]” (Sentencing order, 9/14/18 at ¶¶ 6,

8; see also notes of testimony, 9/12/18 at 10.) As noted, appellant was also

sentenced to a consecutive term of 5 years’ probation. (Sentencing order,

9/14/18 at ¶¶ 10-11.) Pursuant to 42 Pa.C.S.A. § 9754(c)(8),4 the sentencing

court ordered appellant to pay reparations to Carmichaels Borough in the

amount of $24,965.11, which represented the total amount of appellant’s

thefts less that which was reimbursed to Carmichaels Borough by the bonding

company. (Id. at ¶ 13.) Additionally, the sentencing court ordered appellant

to pay Carmichaels Borough an additional $15,430 for the costs it incurred in

having Cypher & Cypher conduct a financial audit, as “legitimate costs of

prosecution.” (Id. at ¶ 14.)5




4   Section 9754(c)(8) provides as follows:

              (c)   Specific conditions.-- The court may as a
                    condition of its order [of probation] require the
                    defendant:

                    ....

                    (8)    To make restitution of the fruits of
                           his crime or to make reparations, in
                           an amount he can afford to pay, for
                           the loss or damage caused thereby.

42 Pa.C.S.A. § 9754(c)(8).

5As discussed more fully, infra, the sentencing court later characterized this
$15,430 as “additional reparations” pursuant to 42 Pa.C.S.A. § 9754(c)(8).
(See order, 10/26/18 at ¶ 5.)


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     On September 17, 2018, appellant filed a post-sentence motion for

reconsideration of sentence. On September 26, 2018, the sentencing court

entered an order acknowledging that its prior sentencing order contained a

“copy and paste error” that incorrectly listed the date of sentencing as

August 3, 2018. (Order, 9/26/18 at ¶ 6.) The sentencing court indicated that

“the true date [of sentencing] was September 12, 2018, and the Order was

docketed and signed on September 14, 2018.” (Id. at ¶ 7.) Thereafter, on

October 26, 2018, the sentencing court denied appellant’s post-sentence

motion. This timely appeal followed.

     On November 20, 2018, the sentencing court ordered appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b), within 21 days.     Appellant filed a timely Rule 1925(b)

statement on November 29, 2018, and the sentencing court filed its

Rule 1925(a) opinion on January 9, 2019.6

     Appellant raises the following issues for our review:

           A.    Are the Sentencing Orders of August 3, 2018,
                 and September 14, 2018, in violation of the
                 double jeopardy clause in the Fifth Amendment
                 to the United States Constitution?

           B.    Was [a]ppellant’s sentence excessive in light of
                 similar  first-time    offender    defendants’


6  On March 29, 2019, appellant filed an “Application to Strike
[Commonwealth’s] Alleged Facts Not Evinced in the Record,” which was
subsequently deferred to this panel for review. As the “facts” cited in
appellant’s application have no bearing on our decision, we deny appellant’s
application as moot.


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                  sentences charged with similar crimes in the
                  same jurisdiction?

            C.    Did the [sentencing c]ourt properly rule that the
                  costs of the Carmichaels Borough audits were
                  reparations and incumbent upon [a]ppellant to
                  repay?

Appellant’s brief at 10.

      We begin by addressing appellant’s claim that the sentencing court’s

September 14, 2018 resentencing order had the effect of increasing her

aggregate judgment of sentence from 360 to 720 days’ imprisonment to 1 to

2 years’ imprisonment, thereby violating the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution.        (Id. at 19-23.)    We

disagree.

      “[A]verments relating to . . . double jeopardy . . . implicate the legality

of the sentence[.]” Commonwealth v. Foster, 17 A.3d 332, 337 (Pa. 2011)

(citation omitted). “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.” Commonwealth v. Stradley, 50 A.3d 769,

772 (Pa.Super. 2012) (citation omitted).

      The Double Jeopardy Clause, applicable to the states through the

Fourteenth Amendment, provides, in relevant part, that no person shall “be

subject for the same offence to be twice put in jeopardy of life or limb [.]”

U.S. Const. Amend. V. Similarly, Article I, Section 10 of the Pennsylvania




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Constitution provides that “[n]o person shall, for the same offense, be twice

put in jeopardy of life or limb.” Pa. Const. Art. I, § 10.

            Furthermore, the Double Jeopardy Clause [] protects
            against a second prosecution for the same offense
            after acquittal.    It protects against a second
            prosecution for the same offense after conviction.
            And it protects against multiple punishments for the
            same offense.

Commonwealth v. Farrow, 168 A.3d 207, 214-215 (Pa.Super. 2017)

(citations and internal quotation marks omitted; brackets in original).

      This court has long recognized that “double jeopardy principles do not

prevent a sentencing court from correcting, modifying, or increasing a

sentence which the same court previously imposed.”           Commonwealth v.

Vanderlin, 580 A.2d 820, 832 (Pa.Super. 1990), quoting Commonwealth

v. Rainey, 488 A.2d 34, 35 (Pa.Super. 1985) (citation omitted). Nor is the

Double Jeopardy Clause violated when a court resentences a defendant to

“comport    with   the   [court’s]   intention   expressed    on   the   record.”

Commonwealth v. Kunish, 602 A.2d 849, 853 (Pa.Super. 1992).                   In

Kunish, the defendant was originally sentenced to 3½ to 7 years’

imprisonment after he was found guilty of voluntary manslaughter. Id. at

849. On appeal, the case was remanded to the trial court for resentencing,

and the trial court imposed a period of 2½ to 5 years’ imprisonment. Id. at

850. Shortly thereafter, the trial court recalled the defendant to the courtroom

and resentenced him to the original 3½ to 7-year sentence. Id. The trial

court explained that its intent was to “impose the same sentence,” but the


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court “made a mistake in reading the years” when announcing the sentence

on the record.   Id.   On appeal, the Kunish court upheld the defendant’s

sentence, reasoning that it was “quite evident from the judge’s statements

[that] he clearly intended to impose the same sentence that he had originally

imposed[.]” Id. at 853.

      Similarly, in the instant matter, the sentencing court corrected a

mathematical error in its prior sentencing order that arose after the court

inartfully set forth appellant’s consecutive sentences in terms of days (30 to

60 days) rather than months (1 to 2 months). In doing so, the sentencing

court made appellant’s sentence “comport” with the intentions it expressed on

the record at both the August 3, 2018 sentencing hearing and in two

subsequent orders. Kunish, 602 A.2d at 85; notes of testimony, 8/3/18 at

46; sentencing order, 8/3/18 at ¶¶ 7-8.     See also order, 8/13/18 at ¶ 2

(stating that it was the sentencing court’s intention “to sentence [appellant]

to a period of not less than one year nor more than two years making it a

State sentence.”). Based on the foregoing, we discern no merit to appellant’s

claim that her corrected sentence should be dismissed on double jeopardy

grounds. See Vanderlin, 580 A.2d at 832.

      Appellant next argues that her judgment of sentence is excessive

because it is disproportionate to sentences the Court of Common Pleas of

Greene County has imposed on other defendants charged “in similar cases

with similar fact patterns [in Greene County].” (Appellant’s brief at 24-25.)



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      Generally, our standard of review in assessing whether a trial court has

erred in fashioning a sentence is well settled.

            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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citation omitted).

      Where an appellant challenges the discretionary aspects of her

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of her sentence

must invoke this court’s jurisdiction by satisfying the following four-part test:

            (1) whether the appeal is timely; (2) whether
            Appellant preserved her issue; (3) whether
            Appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a substantial
            question that the sentence is appropriate under the
            sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).




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      Instantly, the record reveals that appellant has filed a timely notice of

appeal and has preserved her issue in her September 17, 2018 post-sentence

motion. Appellant has also included a statement in her brief that comports

with the requirements of Pa.R.A.P. 2119(f). Accordingly, we must determine

whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

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

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).            “When

imposing a sentence, the sentencing court must consider the factors set out

in 42 [Pa.C.S.A.] § 9721(b), that is, the protection of the public, gravity of

offense in relation to impact on victim and community, and rehabilitative

needs of the defendant.” Commonwealth v. Fullin, 892 A.2d 843, 847-848

(Pa.Super. 2006) (citations omitted).

      Upon review, we find that appellant fails to raise a substantial question

that her sentence is appropriate under the Sentencing Code. Appellant cites

no specific authority to support her contention that the imposition of a



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sentence that is disproportionate to “other sentences [the sentencing court]

has handed down for similar individuals in similar circumstances” raises a

substantial question. (Rule 1925(b) concise statement, 11/29/18 at ¶ 5; see

also appellant’s brief at 25.) Furthermore, to the extent appellant’s claim is

construed as a challenge to the court’s imposition of 12 consecutive

sentences, we find that such a claim does not ordinarily raise a substantial

question.   See Commonwealth v. Mastromarino, 2 A.3d 581, 587

(Pa.Super. 2010), appeal denied, 14 A.3d 825 (2011).             Rather, the

imposition of consecutive rather than concurrent sentences will present a

substantial question in only “the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super. 2012), appeal denied, 75 A.3d 1281 (Pa. 2013).

            To make it clear, a defendant may raise a substantial
            question where he receives consecutive sentences
            within the guideline ranges if the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable, resulting in an
            excessive sentence; however, a bald claim of
            excessiveness due to the consecutive nature of
            a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013) (emphasis

added), appeal denied, 91 A.3d 161 (Pa. 2014).

      Based on the foregoing, we find that appellant has failed to raise a

substantial question for our review.




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      In her final claim, appellant argues that the sentencing court erred in

concluding “that the costs of the Carmichaels Borough audits were reparations

and incumbent upon [appellant] to repay[.]” (Appellant’s brief at 29.)

      Our standard of review in assessing whether a court erred in imposing

restitution or reparations is well settled:

            [R]estitution is a creature of statute and, without
            express legislative direction, a court is powerless to
            direct a defendant to make restitution as part of his
            sentence. Where that statutory authority exists,
            however, the imposition of restitution is vested within
            the sound discretion of the sentencing judge.

Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 2013) (internal

citation and quotation marks omitted).

      When restitution is imposed as part of the defendant’s sentence,

pursuant to 18 Pa.C.S.A. § 1106(a), there must exist a direct causal

connection between the damage to person or property and the crime.

Commonwealth v. Harriott, 919 A.2d 234, 237-238 (Pa.Super. 2007)

(citations omitted), appeal denied, 934 A.2d 72 (Pa. 2007). However, when

restitution or reparations are ordered as a condition of probation, pursuant to

42 Pa.C.S.A. § 9754(c)(8), the requirement of a nexus between the damage

and the offense is relaxed. Commonwealth v. Nuse, 976 A.2d 1191, 1193

(Pa.Super. 2009) (citation omitted).

      Here, the record reflects that the sentencing court initially ordered

appellant to reimburse Carmichaels Borough $15,430 for the costs it incurred

in having Cypher & Cypher conduct a financial audit, as “legitimate costs of


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prosecution.” (See sentencing order, 9/14/18 at ¶ 14.) Subsequently, in its

October 26, 2018 order filed in response to appellant’s post-sentence motion,

the sentencing court clarified its ruling, characterizing the $15,430 in financial

audit costs as “additional reparations” pursuant to Section 9754(c)(8):

            The Court ordered [appellant] to reimburse
            Carmichaels Borough for its cost incurred as a result
            of the Cypher and Cypher audit. The Court indicated
            that this was appropriate as a “cost of prosecution”.
            The Court does believe it appropriate for [appellant]
            to reimburse Carmichaels Borough for the cost of the
            audit. However, the “cost of prosecution” may have
            been more properly characterized as additional
            “reparations” pursuant to [42 Pa.C.S.A. § 9754(c)(8)]
            as this was a cost borne by Carmichaels Borough, as
            a result of [appellant’s] actions.

Order, 10/26/18 at ¶ 5 (extraneous capitalization omitted).

      Appellant’s argument is two-fold. Appellant first contends that under

Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016), she was not obligated

to reimburse Carmichaels Borough $15,430 for the costs it incurred in having

Cypher & Cypher conduct a financial audit. (Appellant’s brief at 29-30.) We

disagree.

      In Veon, our supreme court confronted the question of whether a

government agency can be the recipient of an award of criminal restitution.

Veon, 150 A.3d at 443. The defendant in that case, former Pennsylvania

State Representative Michael Veon, was convicted of misappropriating funds

from the Department of Community and Economic Development (“DCED”) and

ordered to pay $135,615 in restitution to DCED. Id. at 441. The Veon court



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determined that the statutory definition of “direct victim” under 18 P.S.

§ 11.103 should be applied when determining whether restitution should be

paid to a victim pursuant to 18 Pa.C.S.A. § 1106. Id. at 454. The Veon court

concluded that, with some limited exceptions, only a human being may be

considered a victim entitled to recover restitution under Section 1106. Id. at

455 (stating, “DCED is neither a ‘direct victim’ nor a reimbursable

compensating government agency under Section 1106.” (footnote omitted)).

Because Veon’s sentence improperly included a Section 1106 restitution

component to a governmental agency, the Veon court remanded the case for

re-sentencing as the ruling disturbed the sentencing scheme. Id. at 456.

     Appellant is correct that, pursuant to Veon and its progeny, a sentence

directing her to pay restitution to Carmichaels Borough under Section 1106

would be illegal. See, e.g., Commonwealth v. Berry, 167 A.3d 100, 110

(Pa.Super. 2017) (applying Veon and ruling that the defendant’s sentence

was illegal insofar as it ordered him to pay restitution to the Commonwealth,

where he, a former judge of the Court of Common Pleas of Philadelphia

County, had unlawfully used his judicial staff and court resources to further

his own pecuniary interests). Likewise, we find that the cost of the Cypher &

Cypher audit cannot reasonably be deemed “costs of prosecution,” as the

court initially indicated. See Commonwealth v. Rivera, 95 A.3d 913, 916

(Pa.Super. 2014) (stating that, “[c]osts are a reimbursement to the

government for the expenses associated with the criminal prosecution.”



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(citations omitted)).    However, as the sentencing court noted in its

October 26, 2018 order, the costs of the Cypher & Cypher audits were “more

properly    characterized    as    additional   reparations     pursuant    to

[Section 9754(c)(8).]”   (See order, 10/26/18 at ¶ 5.)     We have found no

authority that Veon precludes the sentencing court’s imposition of restitution

or reparations ordered as a condition of appellant’s probation under

Section 9754(c)(8).

      Appellant further argues that the fact that Carmichaels Borough did not

perform annual audits and only hired Cypher & Cypher to conduct a financial

audit after her thefts were discovered somehow negates her obligation to

reimburse the Borough.       (Appellant’s brief at 29-30.)      This claim is

disingenuous. Here, the sentencing court found that the Cypher & Cypher

audit was precipitated by appellant’s thefts over the course of a four-year

period. The court further found that the fact that Carmichaels Borough may

not have been diligent in ensuring that annual audits were conducted during

appellant’s tenure does not alleviate appellant’s obligation to take some

measure of financial responsibility for the direct consequences of her criminal

conduct.

      Based on the foregoing, we discern no abuse of discretion on the part

of the sentencing court in ordering appellant to pay Carmichaels Borough an

additional $15,430 for the costs it incurred in having Cypher & Cypher conduct

a financial audit.



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     Judgment of sentence affirmed. Application to strike denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2019




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