Com. v. Odonnell, T.

Superior Court of Pennsylvania

Com. v. Odonnell, T.

DecidedDecember 16, 2020

Docket570 MDA 2020

StatusUnpublished

This text of Com. v. Odonnell, T. (Com. v. Odonnell, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Odonnell, T., (Pa. Ct. App. 2020).

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Opinion

J-S38016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

* 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. J-S38016-20

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] ____________________________________________

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.

-3- J-S38016-20

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

-4- J-S38016-20

agreed to those facts. Therefore, the amount of restitution imposed at

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