Com. v. Wydo-Streit, B. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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