J. A12032/19

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 L ea Wydo

- Streit appeals 1 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 appe llant to
pay Carmichaels Borough an additional $15,430 for the costs it incurred in

1 We note that although a ppel lant 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 take n 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).J. A12032/19

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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 t his case, as gle aned from the certified record , are as follows: On June 28, 2017, appellant was charged with 89 counts each of theft and forgery 3 in connection wit h her theft of nearly $75,000 while employed as the Borough Manager of Carmichaels Borough, a small municipa lity located in Greene County

. On June 6, 2018 , appellant entered an open guilty plea to 89 counts of theft , and the Commonwealth nolle prose d 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 c ourt 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 no r 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 no r more than two
years [’]” imprisonment to be served in the state prison system. ( See
sente ncing order, 8/3/18 at ¶¶ 7

- 8.)

3 18 Pa.C.S.A. § 4101(a)(2).J. A12032/19

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As the sentencing court later explained in its opinion:
T he [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 re consideration, arguing that her 12 consecutive sentence s 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 c ourt entered an order that granted appella nt’s motion for reconsidera tion, 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 [app ellant] to a period of not less t han on e year no r more than two years making it a State sentence. However, the sentence as imposed in the aggregate is a nu mber of days short of the one to two years.
O rder, 8/13/18 at ¶ 2. Thereafter, on September 14, 2018, the sentencing c ourt resenten ced appellant , in accordance with its intentions , to consecutive sentences of “ not less than 1 month nor more than 2 mon ths” on Counts 1 through 12 andJ. A12032/19

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clarified that appellant’s aggregate judgment of sentence remained “not less than 1 year nor more than 2 years[.]” (Sente ncing 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, 9/14/1 8 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, a s “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).

5 As discussed more fully, infra , the sentencing court later character ized th is $15,430 as “additional reparations” pursuant to 42 Pa.C.S.A. § 9754(c)(8). ( See order, 10/26/18 at ¶ 5.)J. A12032/19

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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 A ugust 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 s igned on September 14, 2018.” ( Id. at ¶ 7.) Thereafter, on October 26, 2018, the sentencing court denied appellant’s post

- sentence motion

. T his timely appeal followed. On November 20, 2018, the sentencing court ordered appellant to file a concise statement of errors complained of on appeal, in acc ordance with Pa.R.A.P. 1925(b), wit hin 21 days. Appellant filed a timely Rule 1925(b)
statement on November 29, 2018, and the sentencing court filed its Rule 1925(a) opinion o n 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 def endants’

6 On March 29, 2019, appellant filed an “Application to Strike [Commonwealth’s] Alleged Facts Not Evinced in the Record,” which was subsequen tly de ferred to this panel for review. As the “facts” cite d in appellant’s application have no bearing on our decision, we deny appellant’s application as moot.J. A12032/19

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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 re sentencing 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 . . . implicat e 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. Con st. Amend. V. Similarly, Article I, Section 10 of the PennsylvaniaJ. A12032/19

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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 [] protect s 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).
T his court has long recognized that “d ouble 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 c ourt resentences a defendant to “c omport with the [court’ s] inte n tion expressed on the record.” Commonwealth v. Kunish , 602 A.2d 849, 853 (Pa.Super. 1992). In Kunish , the defendan t was originally sentenced to 31⁄2 to 7 years’ imprisonment after he was foun d guilty of voluntary manslaughter. Id. at 849. On appeal, the case was remanded to the trial court for resentencing, and the tr ial court imposed a period of 21⁄2 to 5 years’ i mprisonment. Id. at 850. Shortly thereafter, the trial court recalled the defe ndant to the courtroom and resentence d him to the original 31⁄2 to 7

- year sentence. Id. The trial court explained that its intent was to “impose the same sentence ,” but theJ. A12032/19

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court “made a mistake in reading the years” when announcing the sentenc e on the rec ord. Id. On appeal, t he 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, i n 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; no tes of testimony, 8/3/18 at 46; sent encing order, 8/3/18 at ¶¶ 7

- 8. S ee 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 do uble jeopardy grounds

. See Vanderlin , 580 A.2d at 832

. Appellant next argues that her judgment of sentence is excessive because it is di sproportionate 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 .)J. A12032/19

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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 discr etion. In t his 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 p artiality, 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 discretion ary 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 t his c ourt’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 o mitted).J. A12032/19

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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 sp ecific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm und erlying 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

- 8 48 (Pa.Super. 2006) (citations omitted). Upon review, we find that appellant fails to raise a substantial question that her se ntence is appropriate under the Sentencing Code

. Appellant cites

no specific authority to support her contention that the imposition of aJ. A12032/19

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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 que stion. (Ru le 1925( b) concise statement, 11/29/18 at ¶ 5 ; s ee 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 ordinaril y 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 excess ive 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).
Ba sed on the foregoing, we find that appellant has failed to raise a substantial question for our review.J. A12032/19

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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 incumben t 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] esti tution 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 wit hin 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 ofJ. A12032/19

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pr osecution.” ( 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 prosecuti on”. 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. § 975 4(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 D epartment of Community and Economic Development (“DCED”) and ord ered to pay $135,615 in restitution to DCED. Id. at 441. The Veon courtJ. A12032/19

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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 c ourt 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 vi ctim’ nor a reimbursable compensating governme nt agency under Section 1106 .” (footnote omitted))

. Because Veon’s sentence improperly included a Section 1106 restitution

co mponent to a governmental agency, the Veon c ourt 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 Carmichael s 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 defen dant’s sentence was illegal insofar as it ordered him to pay restitution to the Co mmonwea lth, 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 reas onably 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 prosecutio n .”J. A12032/19

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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 ad ditional 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 Boroug h 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, t he sen tencing 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 alle viate 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.J. A12032/19

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Judgment of sentence affirmed. Application to strike denied as mo ot. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2019