J-S43040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

MALAKI ADONIS FARRELL

                            Appellee                 No. 1717 MDA 2015


             Appeal from the Judgment of Sentence June 11, 2015
                In the Court of Common Pleas of York County
               Civil Division at No(s): CP-67-CR-0001278-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED MAY 17, 2016

       The Commonwealth appeals from the judgment of sentence entered in

the York County Court of Common Pleas, following Appellee Malaki Adonis

Farrell’s negotiated guilty plea to receiving stolen property, fleeing or

attempting to elude police officer, possession of a controlled substance, and

drivers required to be licensed.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On June 11, 2015, Appellee pleaded guilty to the aforementioned crimes

relating to his involvement with a stolen 2012 Nissan on February 10, 2015.

The trial court sentenced Appellee, according to the terms of the negotiated

plea, to concurrent sentences of one (1) to three (3) years’ incarceration for
____________________________________________


1
  18 Pa.C.S. § 3925(a), 75 Pa.C.S. § 3733(a), 35 P.S. § 780-113(a)(16),
and 75 Pa.C.S. § 1501(a), respectively.
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receiving stolen property, one (1) to three (3) years’ incarceration for fleeing

or attempting to elude police officers, and six (6) to twelve (12) months’

incarceration for possession of a controlled substance. Additionally, Appellee

was fined $200.00 for driving without a license.

        On June 22, 2015, the Commonwealth filed a motion to modify

sentence to include restitution.2 On October 5, 2015, the court conducted a

hearing on restitution.       The court denied the Commonwealth’s motion to

include restitution the next day.        On October 7, 2015, the Commonwealth

filed a notice of appeal.         On October 14, 2015, the court ordered the

Commonwealth to file a concise statement of errors complained of upon

appeal pursuant to Pa.R.A.P. 1925(b), and it timely complied on October 26,

2015.

        The Commonwealth raises the following issue for our review:

          RESTITUTION IS PART OF A CRIMINAL SENTENCE AND
          CAN BE IMPOSED THROUGH POST-SENTENCE MOTIONS.
          FOLLOWING [APPELLEE’S] PLEA AND SENTENCING, THE
          COMMONWEALTH      RECEIVED    INFORMATION    THAT
          RESTITUTION WAS OWED TO ONE OF THE VICTIMS. THE
          COMMONWEALTH FILED A TIMELY POST-SENTENCE
          MOTION ASKING THE TRIAL COURT TO IMPOSE
          RESTITUTION AS PART OF [APPELLEE’S] SENTENCE. DID
          THE TRIAL COURT ERR IN REFUSING TO ORDER
          RESTITUTION?
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2
  Because June 21, 2015 fell on a Sunday, the Commonwealth’s post-
sentence motion was timely filed. See 1 Pa.C.S. § 1908 (when computing
the 30-day filing period, “[if] the last day of any such period shall fall on
Saturday or Sunday… such day shall be omitted from the computation.”).




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Commonwealth’s Brief at 4.

      The Commonwealth argues the court should have granted its post-

sentence motion to modify sentence by imposing restitution because it was

timely. It claims the court erred by denying the motion and concludes this

Court should reverse the order denying its post-sentence motion and

remand the case to the trial court for a full restitution hearing. We disagree.

      “[T]he   imposition   of    restitution   for   property   damage      is    not

mandatory.”      Commonwealth          v.   Rohrer,     719   A.2d   1078,        1080

(Pa.Super.1998). Rather, “[t]he imposition of restitution is within the sound

discretion of the sentencing court and must be supported by the record.”

Commonwealth v. Keenan, 853 A.2d 381, 382-83 (Pa.Super.2004).

Accordingly, in this case, the Commonwealth challenges the discretionary

aspects of Appellee’s sentence.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

      (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 sentence appealed from is not
      appropriate under the Sentencing Code.

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Id.

      Here, the Commonwealth filed a timely post-sentence motion and a

timely notice of appeal.   The Commonwealth, however, failed to include a

Pa.R.A.P. 2119(f) statement in its brief and failed to raise a substantial

question that the sentence appealed from is not appropriate under the

sentencing code. The Commonwealth, therefore failed to invoke this Court’s

jurisdiction. See Allen, supra.

      Even if the Commonwealth had invoked this Court’s jurisdiction, its

issue would merit no relief.

      The following statute governs restitution:

         § 1106. Restitution for injuries to person or property

         (a) General rule.--Upon conviction for any crime wherein
         property has been stolen, converted or otherwise
         unlawfully obtained, or its value substantially decreased as
         a direct result of the crime, or wherein the victim suffered
         personal injury directly resulting from the crime, the
         offender shall be sentenced to make restitution in addition
         to the punishment prescribed therefor.

                                  *    *    *

         (c) Mandatory restitution.--

                                  *    *    *

         (2) At the time of sentencing the court shall specify
         the amount and method of restitution. In determining
         the amount and method of restitution, the court:

            (i) Shall consider the extent of injury suffered by the
            victim, the victim's request for restitution as presented
            to the district attorney in accordance with paragraph (4)
            and such other matters as it deems appropriate.



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           (ii) May order restitution in a lump sum, by monthly
           installments or according to such other schedule as it
           deems just.

           (iii) Shall not order incarceration of a defendant for
           failure to pay restitution if the failure results from the
           offender's inability to pay.

           (iv) Shall consider any other preexisting orders imposed
           on the defendant, including, but not limited to, orders
           imposed under this title or any other title.

        (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.

        (4) (i) It shall be the responsibility of the district
        attorneys of the respective counties to make a
        recommendation to the court at or prior to the time of
        sentencing as to the amount of restitution to be ordered.
        This recommendation shall be based upon information
        solicited by the district attorney and received from the
        victim.

        (ii) Where the district attorney has solicited information
        from the victims as provided in subparagraph (i) and has
        received no response, the district attorney shall, based on
        other available information, make a recommendation to
        the court for restitution.

        (iii) The district attorney may, as appropriate, recommend
        to the court that the restitution order be altered or
        amended as provided in paragraph (3).

18 Pa.C.S. § 1106 (emphasis added).

        Act 1998-121 imposed upon the court the requirement
        that if restitution is ordered, the amount must be
        determined at the time of sentencing, 18 [Pa.C.S.] §


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          1106(c)(2). It also placed upon the Commonwealth the
          requirement that it provide the court with its
          recommendation of the restitution amount at or prior to
          the time of sentencing. 18 [Pa.C.S.] § 1106(c)(4).
          Although the statute provides for amendment or
          modification of restitution “at any time,” 18 [Pa.C.S.] §
          1106(c)(3), the modification refers to an order “made
          pursuant to paragraph (2)...” Id. Thus, the statute
          mandates an initial determination of the amount of
          restitution at sentencing. This provides the defendant with
          certainty as to his sentence, and at the same time allows
          for subsequent modification, if necessary. See 18 [Pa.C.S.]
          § 1106(c)(3); cf. [42 Pa.C.S.] § 5505 (“Except as
          otherwise provided or proscribed 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.”).

Commonwealth v. Dinoia, 801 A.2d 1254, 1256-57 (Pa.Super.2002).

        Here, the trial court sentenced Appellee on June 11, 2015, pursuant to

a negotiated plea agreement. On June 22, 2015, the Commonwealth filed a

motion to modify sentence to include restitution. The district attorney did

not make a recommendation to the court at or prior to the time of

sentencing as to the amount of restitution to be ordered, and the trial court

did not specify the amount and method of restitution at the time of

sentencing. Although the Commonwealth baldly asserts that restitution “can

be imposed through post-sentence motions,”3 it cites no case law, nor does




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3
    Commonwealth’s Brief at 4.




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any exist, to support this proposition.4         Section 1106 specifically provides

that it is the district attorney’s responsibility to make a recommendation as

to the amount of restitution to be ordered “at or prior to the time of

sentencing.” 18 Pa.C.S. § 1106(c)(4)(i). The trial court’s decision to deny

the Commonwealth’s motion to modify sentence to include restitution that it

did not impose during sentencing was not error.5

       Judgment of sentence affirmed.

       Judge Panella joins in the memorandum.

       President Judge Gantman concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




____________________________________________


4
  Further, although the Commonwealth claims its challenge is to the legality
of Appellee’s sentence, it provides no authority that the failure to impose
restitution at sentencing constitutes an illegal sentence.
5
  This decision does not preclude the victim from seeking monetary damages
from Appellee in a civil action filed within the applicable statute of
limitations.



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