J-S04026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
TRAVIS ELLIOT DARROW                     :
                                         :
                   Appellant             :   No. 674 MDA 2017

                   Appeal from the Order March 21, 2017
   In the Court of Common Pleas of Wyoming County Criminal Division at
                     No(s): CP-66-CR-0000055-2013


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 29, 2018

      Appellant, Travis Elliot Darrow, appeals from the Order entered on

March 21, 2017 in the Wyoming County Court of Common Pleas amending

his Judgment of Sentence entered May 8, 2013, to include restitution.

Appellant challenges the legality of the Amended Sentencing Order.        After

careful review, we vacate the March 21, 2017 Order.

      On April 5, 2013, pursuant to a negotiated plea agreement, Appellant

pled guilty to one count of aggravated assault in connection with the assault

of his 16-month-old daughter in which she suffered a broken arm and

bruises to her forehead and cheek. On May 8, 2013, the court sentenced

Appellant to 66 to 130 months’ imprisonment. The court did not impose any

restitution. Appellant did not file post-sentence motions or a direct appeal.

      On April 28, 2014, Appellant filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. On February 9,
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2015, through counsel, Appellant filed an Amended PCRA Petition. The PCRA

court denied the petition on July 14, 2015.           This Court affirmed, and the

Pennsylvania Supreme Court denied allowance of appeal. Commonwealth

v. Darrow, 1415 MDA 2015 (Pa. Super. filed May 27, 2016) (unpublished

memorandum), appeal denied, 162 A.3d 1115 (Pa. 2016).

       On June 10, 2016, three years after the entry of Appellant’s Judgment

of Sentence, the Commonwealth filed a Motion to Amend Sentencing Order

to include restitution. The trial court held a hearing on the Motion on July

15, 2016.     On March 21, 2017, the court granted the Motion and ordered

that the May 8, 2013 Sentencing Order “be amended to include that

[Appellant] is Ordered to pay restitution in the amount of Eighteen Thousand

Five Hundred Seventy Seven Dollars and Fifty Seven Cents ($18,577.57) to

the Pennsylvania Department of Human Services for payment of medical

expenses for the victim for injuries received in this matter.” Order, dated

3/21/17, at 1.1

       This timely appeal followed.            Both Appellant and the trial court

complied with Pa.R.A.P. 1925(b).

       Appellant raises the following issue for our review: “Did the trial court

illegally amend the Appellant’s sentence to include restitution, where the


____________________________________________


1We note that the trial court’s order incorrectly states that the Sentencing
Order was dated December 8, 2013. See id. The court sentenced Appellant
on May 8, 2013.



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original sentence did not include an award of restitution which could be

subject    to   amendment,        in    violation    of    18     Pa.C.S.A.    §§     1106(a)

& (c) , including their subsections, and 42 Pa.C.S.A. § 5505?”2 Appellant’s

Brief at 3.

       Our review is governed by the following principles.                     “[Q]uestions

implicating the trial court's power to impose restitution concern the legality

of the sentence.” Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013).

“[O]ur    standard     of   review     is   whether       an    error   of   law    occurred.”

Commonwealth v. Dietrich, 970 A.2d 1131, 1133 (Pa. 2009).                              “[O]ur

scope of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802

(Pa. Super. 2014).

       18 Pa.C.S. § 1106 governing restitution provides, in relevant part:

“Upon conviction for any crime . . . 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.”                       18

Pa.C.S. § 1106(a). “At the time of sentencing the court shall specify the

amount and method of restitution.”                  18 Pa.C.S. § 1106 (c)(2).             See


____________________________________________


2Section 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. Dinoia, 801 A.2d 1254, 1256 (Pa. Super. 2002)

(stating “[t]he statute plainly requires the determination of the amount of

restitution, if ordered, at the time of sentencing.”); Commonwealth v.

Biauce, 162 A.3d 1133, 1139 (Pa. Super. 2017) (reiterating that the “[t]rial

court is required to specify the amount of restitution at sentencing[.]”)

      If the sentencing court imposes restitution at sentencing, “the court

can later modify the restitution as long as the court meets the requirements

of Section 1106(c)(3).” Id.

      In the case sub judice, Appellant was sentenced on May 8, 2013. At

sentencing, Appellant was not ordered to pay restitution. Nearly three years

later, on March 21, 2017, the court entered an order sentencing Appellant to

pay restitution.    Because the court had not ordered the payment of

restitution at the sentencing hearing in 2013, the court erred as a matter of

law in ordering Appellant to pay restitution.

      Accordingly, we vacate the March 21, 2017 Amended Sentencing

Order.

      Order vacated. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




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