J-S55015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ROBERT M. MILAZZO,

                         Appellant                   No. 124 EDA 2014


                  Appeal from the Order November 27, 2013
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000687-2012


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 25, 2014

      Robert M. Milazzo appeals from the November 27, 2013 order

awarding restitution to the victim of a burglary. We vacate and remand.

      On December 7, 2011, Appellant was charged with burglary, trespass,

theft, receiving stolen property, and criminal mischief in connection with the

December 2, 2011 burglary of James Diamond Jewelry Store on State Route

611 in Mount Pocono.        The affidavit of probable cause indicates the

following.   At approximately 10:30 p.m. on the day in question, Pocono

Mountain Regional Police responded to an alarm emanating from the store.

The glass in the front door and in two display cases of the business were

smashed.

      Four hours later, a different Pocono Mountain Regional Police Officer

came into contact with Appellant, who was intoxicated and walking near a
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shopping plaza in Mount Pocono.        The officer noticed that Appellant was

wearing a diamond wedding band on his small finger and that the ring

appeared to be designed for a female rather than a male. The officer drove

Appellant home. During the drive, Appellant said that he had been drinking

all night at The Copa Bar and Grill, which is a few hundred yards from the

jewelry store.

        After a warrant was issued for his arrest, Appellant left Pennsylvania.

He was eventually located in New York, where he was jailed on assault

charges.     After Appellant was extradited, he received court-appointed

counsel, Frederick Cutaio, Esquire. Nevertheless, on June 13, 2012, he filed

pro se motions seeking discovery and a bill of particulars.       On June 21,

2012, Appellant filed several more pro se motions, including one to suppress

a videotape of the crime captured by the store’s surveillance system.       In

August and September 2012, Appellant filed four additional pro se motions,

which were all forwarded to counsel.

        On February 4, 2013, counsel filed a motion to dismiss under Rule

600; that motion was denied.      On March 5, 2013, Appellant pled guilty to

burglary graded as a second-degree felony, and sentencing was scheduled

for April 18, 2013.    On April 1, 2013, counsel filed a motion asking that

Appellant be permitted to withdraw his guilty plea.      Counsel averred that

Appellant contacted him and told him that he wanted to withdraw the guilty

plea.    In the motion, counsel asserted that Appellant was innocent of the

crimes in question.

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      Despite the pending motion to withdraw, on April 10, 2013, Appellant

filed a pro se motion seeking to suppress a pre-trial identification procedure,

which was referred to his appointed counsel. On April 18, 2013, Appellant’s

counseled motion to withdraw his guilty plea was granted, and his trial was

scheduled for June 2013. In its motion to schedule trial, the Commonwealth

indicated that it had secured the services of a DNA expert.

      On May 17, 2013, Appellant filed three pro se motions. The first one

was a pro se motion for new appointed counsel, and in it, Appellant averred

that Mr. Cutaio had represented him ineffectively in various ways.        In his

second motion, Appellant sought a hearing            pursuant to Franks v.

Delaware, 438 U.S. 154 (U.S. 1978), which held that if a defendant

preliminarily demonstrates that a false statement was intentionally included

in a warrant affidavit, the defendant is entitled to a hearing. Finally, he filed

a motion to suppress that raised numerous allegations about the improper

seizure of evidence and his arrest.

      The same day that the three pro se motions were filed, Appellant

entered a second guilty plea.      The trial court immediately proceeded to

sentencing in order to avoid another pre-sentence motion to withdraw and

further delay of this matter. While Appellant failed to include a transcript of

the May 17, 2013 plea colloquy in the certified record, the written

sentencing order indicates that Appellant pled guilty to burglary graded as a

second-degree felony.     Appellant was sentenced to nine to twenty-three

months incarceration. The May 17, 2013 sentencing order also states, “It is

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further ordered that the Defendant shall pay full restitution to the victims in

this matter.” In its Pa.R.A.P. 1925(a) opinion, the court explained that the

amount of restitution was not set forth on May 17, 2013 because it “was

unknown at the time of sentencing.”         Trial Court Opinion, 3/7/14, at

(unnumbered page) 3.

      On May 21, 2013, the trial court denied as moot Appellant’s three

pending pro se motions. A hearing to set the amount of restitution occurred

on August 29, 2013. Appearing for the Commonwealth was Marge Diamond,

who was the supervisor of James Diamond’s Jewelry Store and who was

married to the owner of that business. She detailed her knowledge of the

store inventory and itemized the jewelry taken from the establishment

during the burglary.     She explained that trays with 164 rings, which

contained precious and semi-precious stones, were stolen and that four

loose diamonds were also taken. Religious items were taken from the other

smashed display case, and those items included a large cross with blue and

white diamonds that was worth $6,500.            Mrs. Diamond submitted a

spreadsheet detailing each item taken and its value.          Additionally, the

Commonwealth introduced photographs of the interior of the store just prior

to Appellant’s entry. Finally, Mrs. Diamond outlined the cost of emergency

repairs of the store undertaken immediately after the crime as well as lost

profits for the time that the store was closed due to the burglary repairs.

      On November 27, 2013, the court entered an award of $153,693.49 in

restitution in favor of the victim herein. This appeal followed. Appellant was

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ordered to file a Pa.R.A.P. 1925(b) statement, and he raised the following

issues therein:

      1. The Court erred in finding Defendant responsible for
         restitution in the amount of $153,693.49, where the criminal
         complaint listed $10,000 as the amount of property missing.

      2. The Court erred in finding Defendant responsible for
         restitution in the amount of $153,693.49, where the victim’s
         cannot show proof that all items listed were in fact taken by
         Defendant, where photographs do not show Defendant
         removing all the items claimed, Defendant was never found
         with any of the items claimed, and none of the items claimed
         have ever turned up.

1925(b) Concise Statement of Matters Complained Of, 1/27/14, at 1.

      We summarize Appellant’s two averments.         First, he suggested that

the estimate of loss outlined in the affidavit of probable cause for the arrest

warrant was binding as to the value of the stolen goods.           Second, he

contested his responsibility for paying for the losses suffered by the victim in

the burglary by suggesting that the victim failed to prove that he was guilty

of taking the items of jewelry.       Appellant’s claim in this respect was

misguided since he admitted guilt to committing the burglary and the only

issue at the restitution hearing was the damages suffered by his commission

of the crime. Since Appellant admitted his guilt: 1) the victim did not have

to prove Appellant took the items listed and only had to establish that they

were missing after the burglary; 2) the Commonwealth did not have to

present photographs of him removing all the items taken in the burglary;




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and 3) it was irrelevant that none of the items was found on Appellant or

was ever recovered.

     In his brief on appeal, Appellant outlines two quite different questions

for our consideration: “I. Whether the court erred in imposing an illegal

sentence for restitution in an amount not supported by the record? II.

Whether [the] untimely order of restitution in this matter constituted an

illegal sentence and an illegal sentence can never be waived.” Appellant’s

brief at 4.    Although these contentions were omitted from the Pa.R.A.P.

1925(b) statement and were not raised before the trial court at the

restitution hearing or in a motion, since they relate to the legality of the

sentence imposed, these issues are not waived. Commonwealth v. Boyd,

73 A.3d 1269 (Pa.Super. 2013).

     We have indicated that, “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.”      Commonwealth v. Stradley, 50 A.3d 769, 771-72

(Pa.Super. 2012). While Appellant’s first issue purports to raise the specter

of an unsupported restitution award, his argument in this respect is

specious.     He submits, without citation to legal authority, that the court

could not “rely on the word of the store manager.” Appellant’s brief at 8.

We reject this contention because Mrs. Diamond established the basis for

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her knowledge of the cost of repairs, the lost profits, the store contents, the

items taken, and their values. Appellant also complains about the type of

documentary proof submitted, suggesting that the Commonwealth could

only establish the loss through a computerized inventory of the store before

and after the burglary. Again, Appellant presents no legal authority for the

proposition that this type of evidence is required to support an award of

restitution.    It would be extremely unlikely that a store would conduct a

computerized inventory just before an event that the owners did not know in

advance would occur.

      We observe that § 1106 of the Crimes Code, which pertains to

restitution, states

      (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.-

               (1) The court shall order full restitution:

                      (i) Regardless of the current financial
                      resources of the defendant, so as to
                      provide the victim with the fullest
                      compensation for the loss.




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18 Pa.C.S. § 1106 (emphasis added). Herein, we conclude that the amount

of restitution was supported by the record, as outlined by the trial court at

pages three through five of its March 7, 2014 opinion.

      Appellant also complains that the award was excessive. This position

relates to the discretionary aspects of the restitution award. In In re M.W.,

725 A.2d 729 (Pa. 1999), the juvenile defendant in a delinquency

proceeding challenged the amount of restitution ordered by a juvenile court.

Therein, the court ruled that if an issue pertains to a court’s statutory

authority to order restitution, it is a legality-of-sentence claim.         Our

Supreme Court continued that if a defendant challenges the trial court’s

“exercise of discretion in fashioning” the award, the contention is subject to

normal waiver rules. It elaborated as follows:

             We recognize that there has been some confusion as to
      whether an appeal of an order of restitution implicates the
      legality or the discretionary aspects of a particular sentence in a
      criminal proceeding. Where such a challenge is directed to the
      trial court's authority to impose restitution, it concerns the
      legality of the sentence; however, where the challenge is
      premised upon a claim that the restitution order is excessive, it
      involves a discretionary aspect of sentencing.

Id. at 731 n.4 (citations omitted). Thus, Appellant’s position that the award

was excessive is a challenge to the discretionary aspects of his sentence and

is waived due to his failure to include it in his Pa.R.A.P. 1925(b) statement

and to present it to the trial court during the restitution proceedings.

Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013).




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      Appellant’s second contention has two aspects. Appellant’s position is

that the order from which he appealed, the November 27, 2013 order

specifically setting the monetary restitution, was an untimely order.    This

question raises a legality of sentence issue. Commonwealth v. Borrin, 80

A.3d 1219, 1225 (Pa. 2013). The decision in Commonwealth v. Dietrich,

970 A.2d 1131 (Pa. 2009), is pertinent to this position, which involved an

interplay between two statutory provisions. The first statute is 42 Pa.C.S. §

5505, which states in relevant part, “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, . . . if no appeal from such order

has been taken or allowed.” Pursuant to this statute, a court cannot alter

judgment of sentence more than thirty days after its entry absent a patent

defect.   Borrin, supra; Commonwealth v. Holmes, 933 A.2d 57 (Pa.

2007).

      The other pertinent statutory enactment is 18 Pa.C.S. § 1106, which

governs restitution and has a specific provision that applies in the present

setting: “The court may, at any time . . . 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) (emphasis

added).

      In Dietrich, our Supreme Court ruled that § 1106(c)(3) trumps

§ 5505 in the restitution setting and that “a sentencing court may modify

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restitution orders at any time if the court states its reasons as a matter of

record.”   Dietrich, 970 A.2d at 1135.       While in Dietrich, the altered

restitution award was stricken because the trial court gave no reason for

changing the previous restitution award entered, in this case, the trial court

explained why the original restitution award had to be altered.

      Herein, the trial court filed an opinion that is a matter of record. In

that opinion, it stated that the amount of restitution was not calculated at

sentencing because the information was not available at that time. It also

observed that Appellant’s restitution award was part of the guilty plea

arrangement and that Appellant was fully aware when he entered his guilty

plea that he would be subject to a specified restitution award after sentence

was imposed. The court articulated:

      [A]t the time Defendant accepted a plea agreement he was
      aware that he would be required to make full restitution. At the
      time of the guilty plea, Defendant was immediately sentenced
      and ordered to pay full restitution to the victim in this matter.
      By accepting the plea agreement, Defendant accepted the
      responsibility for the items missing or stolen. The amount of
      restitution was unknown at the time of sentencing, therefore, a
      restitution hearing was held on August 29, 2013.

Trial Court Opinion, 3/7/14, at (unnumbered page 3).

      We also observe that, as indicated infra, Appellant did not obtain

transcription of his notes of testimony of his guilty plea. The court also may

have stated its reasons for deferring calculation of the restitution at that

proceeding since sentencing followed immediately upon the heels of the

guilty plea.

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      We conclude that the court proffered a sufficient reason for altering

the amount of restitution awarded, even though the Commonwealth could

have submitted evidence regarding the amount of restitution at the first

sentencing hearing. As noted by the court in Dietrich:

          The plain language of § 1106(c)(3) provides courts with
      broad authority to modify restitution amounts at any time if the
      court states reasons for doing so as a matter of record. 18
      Pa.C.S. § 1106(c)(3) (emphasis added). There is no statutory
      requirement that the reasons for modification be undiscoverable
      at the time of sentencing. 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.

      Appellant also complains that the May 17, 2013 judgment of sentence

was illegal because it failed to specify the exact amount of restitution

imposed. The Commonwealth concurs with this assertion and suggests that

we vacate the judgment of sentence and remand for imposition of the

restitution award concurrently with the jail term.

      The convergence of opinion as to the legality of the May 17, 2013

sentence   derives   from   Commonwealth       v.    Mariani,   869   A.2d   484

(Pa.Super. 2005), and from Commonwealth v. Deshong, 850 A.2d 712

(Pa.Super. 2004), as well as 18 Pa.C.S. § 1106(c)(2), which states that the

trial court “shall specify the amount and method of restitution” at the time

that it sentences a defendant.    In Mariani, the defendant pled guilty and

was sentenced to incarceration. Five months later, restitution was imposed.


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On appeal, we concluded that restitution had to be set at sentencing,

vacated the judgment of sentence, and remanded for resentencing.

      In Deshong, the defendant pled guilty to insurance fraud and agreed

to make restitution. He was sentenced and that sentence included an award

of restitution to be determined by the county probation department, subject

to a hearing, if one was requested.              Nearly two years later, the

Commonwealth subsequently asked that a hearing be held, but the trial

court refused to set restitution. The Commonwealth appealed. We held that

the order refusing to set the amount of restitution acted to finalize the

judgment of sentence and we considered the merits of the appeal.

Deshong, supra at 714 n. 1. We concluded that the original sentence was

illegal since the amount of restitution was not set at the time of sentencing.

We vacated the entire judgment of sentence and remanded for imposition of

a new sentence, which was to include the restitution that the defendant

agreed to satisfy as part of his plea bargain.

      In light of this precedent, it appears that the May 17, 2013 sentence

must be vacated and that the matter must be remanded so that the

sentence can be amended to include the amount of restitution awarded on

November 27, 2103.

      Order vacated.      Case remanded for resentencing.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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