Com. v. Odonnell, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TAMERA JEAN ODONNELL :
:
Appellant : No. 570 MDA 2020
Appeal from the Judgment of Sentence Entered October 15, 2019
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000332-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 16, 2020
Tamera Jean O’Donnell1 appeals from the judgment of sentence entered
following her guilty plea to forgery, 18 Pa.C.S.A. § 4101(a)(2). She challenges
the denial of her motion to modify restitution. We affirm.
In October 2019, O’Donnell entered a guilty plea to one count of forgery.
At the plea hearing, the Commonwealth set forth the following factual basis
for the plea:
Your Honor, it’s alleged in Information 332 of CR-19 –. . . .
[I]t’s alleged that [O’Donnell] did between Wednesday, the
20th of December 2017, and Friday, the 27th day of July
2018, in the borough of East Buffalo Township wrote – or
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* Former Justice specially assigned to the Superior Court.
1Appellant’s last name is spelled “Odonnell” in the bill of information and some
other portions of the trial court record, including the docket entries. However,
documents Appellant has filed spell it “O’Donnell.” See, e.g., Appellant’s Brief.
To be consistent with the trial court docket, we have not altered the caption.
However, in the body of this Memorandum, we use the spelling she uses.
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forged multiple checks; that is, she signed the name of
David Hoffman [(“Victim”)] – filled out the checks and
signed the name [Victim]. She was not authorized to do so.
And she completed and signed 33 blank checks, wrote them
mostly to herself, some other payees, totaling an amount of
$9,169.68. And if we didn’t say it in the colloquy form, she
is also obligated for restitution in our agreement.
N.T., 10/15/19, at 11-12. The court asked O’Donnell if she admitted having
committed the offense, and she said, “Yes.” Id. at 12.
The court then proceeded to sentencing, and asked the Assistant District
Attorney for the amount of the restitution, and he replied, “It’s $9,169.68.”
Id. at 14. O’Donnell did not object, and although she exercised her right to
allocution shortly afterwards, she did not dispute the amount. The trial court
then sentenced O’Donnell her to pay restitution to Victim in the amount of
$9,169.68. The court further sentenced O’Donnell to six to 24 months’
incarceration, plus costs and fees.2
O’Donnell filed a Motion to Modify Restitution, alleging the restitution
amount was not accurate and asking the court modify it. The court ordered
the parties to file briefs, and the parties complied. The court denied the
motion.
O’Donnell filed a timely Notice of Appeal.3 She raises the following issue:
“Whether the trial court erred/abused its discretion in denying [O’Donnell’s]
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2 O’Donnell also pled guilty and was sentenced on other dockets. She,
however, filed an appeal only at this docket, and challenges only the
restitution awarded at this docket.
3The court denied the motion on February 21, 2020. On March 16, 2020, the
Pennsylvania Supreme Court declared a judicial emergency and, on March 17,
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motion to modify restitution?” O’Donnell’s Br. at 8. In her brief, she argues
that Victim is recovering “excess monetary damages from that actually
suffered.” O’Donnell’s Br. at 10. She claims the order denying the motion
without a hearing “impermissibly shifted the burden to [O’Donnell] to prove
the entitlement to a specific amount of restitution.” Id. at 10.
O’Donnell’s challenges go to discretionary aspects of her sentence. See
Commonwealth v. Weir, 239 A.3d 25 (Pa. 2020). There is no absolute right
to review of the discretionary aspects of a sentence. Commonwealth v.
Cartrette 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Rather, we apply
a four-part analysis before addressing a challenge to discretionary aspects of
sentence. We must determine whether: (1) the appellant has filed a timely
notice of appeal; (2) the appellant properly preserved the issue at sentencing
or in a motion to reconsider or modify sentence; (3) the appellant’s brief
includes a Pa.R.A.P. 2119(f) statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of sentence; and
(4) there is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code. See Commonwealth v. Austin, 66
A.3d 798, 808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b).
Here, O’Donnell filed a timely notice of appeal and raised her challenges
in a post-sentence motion. Although her appellate brief does not contain a
____________________________________________
2020, this Court extended by 30 days all filing due dates. Order, filed Mar. 17,
2020, at ¶ B. Therefore, O’Donnell’s Notice of Appeal, filed on March 31, 2020,
was timely.
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Rule 2119(f) statement, the Commonwealth did not object, such that this
failing does not preclude our review of the claim. See Commonwealth v.
Gould, 912 A.2d 869, 872 (Pa.Super. 2006). Further, her claim that the
restitution award was excessive, or not supported by the evidence, raises a
substantial question. See Commonwealth v. Pappas, 845 A.2d 829(Pa.Super. 2004). We will therefore review the claim’s merits.
The Commonwealth bears the “burden of proving its entitlement to
restitution.” Id. (citing Commonwealth v. Boone, 862 A.2d 639, 643
(Pa.Super. 2004)). “When fashioning an order of restitution, the [trial] court
must ensure that the record contains the factual basis for the appropriate
amount of restitution.” Id. (citing Commonwealth v. Pleger, 934 A.2d 715,
720 (Pa.Super. 2007)). Evidence of “[t]he dollar value of the injury suffered
by the victim as a result of the crime assists the court in calculating the
appropriate amount of restitution.” Id. (citing Pleger, 934 A.2d at 720). The
restitution award amount “may not be excessive or speculative.” Id. (citing
Commonwealth v. Rush, 909 A.2d 805, 810 (Pa.Super. 2006)). Further,
“[a]lthough it is mandatory under section 1106(c) to award full restitution, it
is still necessary that the amount of the ‘full restitution’ be determined under
the adversarial system with considerations of due process.” Id. (quoting
Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa.Super. 2004)).
Here, at the guilty plea hearing, when the Commonwealth set forth the
factual predicate for O’Donnell’s guilty plea, it stated the restitution amount
involved in the crime, and owed to Victim, was $9,169.68, and O’Donnell
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agreed to those facts. Therefore, the amount of restitution imposed at
sentencing of $9,169.68 was supported by the facts presented by the
Commonwealth.
Further, the trial court did not abuse its discretion in denying the motion
to modify restitution without a hearing. The court may modify the restitution
order:
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.
18 Pa.C.S.A. § 1106(c)(3). Here, O’Donnell agreed to a restitution amount at
a prior hearing, and a new hearing is not required based merely on a bald
claim that the amount agreed to would result in excess damages. The court
did not err in denying the request to modify restitution.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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