J-S53042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KENNETH TYLER CARY, :

:

Appellant : No. 540 MDA 2015

Appeal from the Judgment of Sentence entered on February 18, 2015

in the Court of Common Pleas of Lackawanna County,

Criminal Division, No. CP-35-CR-0001630-2014

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 13, 2015

Kenneth Tyler Cary (“Cary”) appeals from the judgment of sentence 

imposed after he pled guilty to receiving stolen property and unsworn 

falsification to law enforcement.1 We affirm.

The trial court set forth the relevant procedural history and facts 

underlying this appeal as follows: 

On November 20, 2014, [Cary] pled guilty to one count of 

receiving stolen property and one count of making an unsworn 

falsification to law enforcement, and[,] in exchange, the other 

charges pending against [him, i.e., burglary, criminal trespass, 

and theft by unlawful taking (collectively referred to as “the 

dismissed charges”),] were nolle prossed. These charges arose 

on January 26, 2014, in Scranton, when [Cary] entered the 

victims’ home and stole cash, gift cards, and silver coins. After 

conducting an investigation, the police determined that [Cary] 

had used the stolen gift cards, and when he was arrested by 

police on February 20, 2014, he provided a written statement 

and lied about where and how he had obtained the gift cards.

 

1 See 18 Pa.C.S.A. §§ 3925(a), 4904(a)(1).
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On February 18, 2015, [Cary] was sentenced. [At the 

sentencing hearing, t]he Commonwealth stated that the victim[s 

were] seeking $5[,]800 in restitution, and [Cary’s] attorney 

objected[,] since the amount in the [criminal] information[,] and 

the amount of restitution [Cary] had agreed to at the time of the 

plea[,] was $2[,]700. The [trial] court asked the Commonwealth 

where this new amount had come from, and the Commonwealth 

indicated that it was in the victim impact statement submitted to 

the Commonwealth. The court asked to see it, and [Cary’s] 

counsel then stated that [Cary] was indicating that he[] [would] 

accept responsibility for the restitution even though it was not 

part of the original charges. The court said that this should have 

been made part of the file[,] and made available to defense 

counsel. [Cary’s] counsel stated that this is the first time he has 

seen this, but that his client indicates that he is willing to take 

responsibility for the amount of restitution now being demanded. 

[Prior to imposing sentence, t]he [trial] court stated that it 

understood that [Cary had] committed these crimes because of a 

drug addiction, but that [Cary] does not understand that[,] while 

it hurts people to lose things taken from their home, it hurts 

them even more to take away their sense of security in their 

own home. The court stated that they never feel the same 

about being in their own home, and the court views the entry of 

someone else’s home[,] and taking of items from them[,] as 

being a very serious crime, because the sense of security is 

never replaced. The court also noted that [Cary] was either 

under court supervision[,] or just recently released from court 

supervision[,] when the [crimes] were committed, since th[e 

trial] court had sentenced him in March of 2011 to one to three 

years [in prison] .... 

The [trial] court imposed a sentence of one to four years 

[in prison] on the [receiving stolen property] charge, and three 

months to one year on the falsification to law enforcement 

charge, consecutive to the first [sentence]. The court noted that 

the sentences f[e]ll within the standard range of the sentencing 

guidelines, and that the court was going into the upper reaches 

of the standard range because [Cary] was under supervision[,] 

or just released from supervision[,] when he committed the 

crimes. The court stated that it took into consideration [Cary’s] 

rehabilitative needs, but that when he makes his problems 

somebody else’s problems, the court had to get serious about 

the time imposed. The court also ordered restitution of $5[,]800 

to the victims, as well as a drug and alcohol evaluation.
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Trial Court Opinion, 5/7/15, at 1-3 (paragraph breaks added, citations 

omitted).

Cary timely filed a Motion for reconsideration of sentence, which the 

trial court denied. Cary then timely filed a pro se Notice of Appeal, after 

which the trial court appointed him counsel. The trial court ordered Cary to 

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal, and Cary timely complied.

On appeal, Cary presents the following issues for our review:

A. Whether the [sentencing] court incorrectly relied on [the 

dismissed] charges for the sentences, charges to which 

[Cary] did not plead guilty, of which he was not 

convicted, and which were nolle prossed as part of his 

plea agreement?

B. Whether the [sentencing] court imposed harsh, 

excessive and unreasonable sentences?

C. Whether the [sentencing] court erred and imposed an 

illegal sentence by imposing restitution of $5,800.00, 

where the amount to which he pled guilty, and the

stolen items that he acknowledged responsibility for 

receiving[,] was only $2,700.00?

Brief for Appellant at 4.

We will address Cary’s first two issues together, as they are related. 

Cary argues that the sentencing court committed an abuse of discretion in 

sentencing him because it (1) impermissibly considered the dismissed 

charges when fashioning Cary’s sentence; and (2) imposed an unduly harsh 

and excessive sentence. See id. at 10-11, 11-16.
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Cary challenges the discretionary aspects of his sentence, from which 

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d 

359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has 

preserved the sentencing challenge for appellate review, by raising it at 

sentencing or in a timely post-sentence motion, the appellant must (1) 

include in his brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a sentence, 

pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial 

question that the sentence imposed is not appropriate under the Sentencing 

Code. Hill, 66 A.3d at 363-64.

Here, Cary included a Rule 2119(f) Statement in his brief. See Brief 

for Appellant at 10-11. Moreover, Cary’s above-mentioned claims present a 

substantial question for our review. See Commonwealth v. Stewart, 867 

A.2d 589, 592 (Pa. Super. 2005) (stating that a claim that a sentence is 

excessive because the sentencing court relied on impermissible factors 

raises a substantial question); Commonwealth v. Simpson, 829 A.2d 334, 

338 (Pa. Super. 2003) (same); see also Commonwealth v. Mouzon, 812 

A.2d 617, 627-28 (Pa. 2002) (plurality) (stating that a claim of 

excessiveness of sentence may raise a substantial question even if the 

sentence imposed is within the standard range of the sentencing
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guidelines).2

Our standard of review 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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009) 

(citation omitted). 

Cary argues that the sentencing court improperly

focused on the impact [that] the burglary of the victim[s’] house 

had on the victims[,] and the feeling of being unsafe in their own 

home that such victims feel. [Cary] argues that the [sentencing] 

court impermissibly consider[ed] criminal conduct of which 

[Cary] neither pled guilty nor was convicted[,] and [the 

dismissed charges were] nolle prossed pursuant to a plea 

agreement.

Brief for Appellant at 12. In support of his claim, Cary relies primarily upon 

this Court’s decision in Stewart, supra. See Brief for Appellant at 11-12. 

The appellant in Stewart challenged the discretionary aspects of his 

sentence, asserting that the sentencing court had improperly considered, as 

an aggravating factor, charges that had been nolle prossed pursuant to his 

 

2 Concerning Cary’s claim of excessiveness of sentence, though it is 

essentially a bald claim, which ordinarily would not present a substantial 

question, see Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 

2012), we will address the merits of the claim. It is associated with Cary’s 

separate claim that the sentencing court improperly considered the 

dismissed charges in fashioning the sentence; this claim presents a 

substantial question. See Stewart, supra.
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guilty plea agreement. Stewart, 867 A.2d at 591. This Court initially 

observed that “while our courts have ... ruled that, when a court imposes its 

sentence, the court may consider a defendant’s previous arrests and 

concurrent charges[,] ... there is authority for the proposition that a sentence 

cannot be enhanced for any offense other than the one to which the 

defendant pled guilty.” Id. at 593 (internal citations and paragraph break 

omitted). In Stewart, the sentencing judge had expressly stated that he 

was imposing a sentence in the aggravated range because of the nolle 

prossed charges. Id. This Court held that the sentencing judge’s 

consideration of this factor was an abuse of discretion, and warranted a new 

sentencing hearing. See id. 

We determine that Cary’s reliance upon Stewart is misplaced. Unlike 

the situation in Stewart, here, the sentencing judge, the Honorable Vito P. 

Geroulo (“Judge Geroulo”), never referred to the dismissed charges when 

imposing sentence. Rather, he impressed upon Cary the impact that home 

invasion crimes can have upon victims’ sense of security in their homes. 

See N.T., 2/18/15, at 5-7. In making this observation, Judge Geroulo was 

not using the dismissed charges as an “aggravating factor”; rather, he was 

remarking on Cary’s character and the impact of his criminal conduct. See, 

e.g., Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa. Super. 1980) 

(holding that it was not improper for the sentencing judge to consider the 

defendant’s criminal activity for which he was not tried, charged or 

convicted, as it was relevant to an evaluation of his character). 
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Furthermore, the receiving stolen property charge to which Cary pled guilty 

concerned property taken during the same home invasion that was the basis 

for the dismissed charges. Therefore, we see no impropriety by Judge 

Geroulo in merely reflecting upon the impact that the home invasion had on 

the victims.

Finally, Judge Geroulo’s observation concerning the impact of Cary’s 

conduct was not the reason that the court gave for imposing a sentence in 

the upper range of the sentencing guidelines. Rather, Judge Geroulo stated 

that he felt compelled to impose such a sentence because of Cary’s prior 

criminal history and supervision status at the time of the home invasion. 

See N.T., 2/18/15, at 5-8. Judge Geroulo also stated that he had 

considered Cary’s rehabilitative needs in imposing this particular sentence. 

See id. at 8 (stating that “while I generally focus on rehabilitation for those 

who are addicted, when you make your problems somebody else’s problems, 

then we have to get serious about the time imposed.”). Accordingly, we 

cannot agree with Cary that Judge Geroulo improperly sentenced him based 

upon a consideration of the dismissed charges, and Cary’s first issue thus 

lacks merit. 

Concerning Cary’s second issue, his claim of excessiveness of sentence 

is largely based on the same above-mentioned claim, which we have already 

rejected. See Brief for Appellant at 16 (asserting that Cary “contends that 

the [sentencing] court imposed unreasonable and harsh sentences when it 

considered criminal conduct involving the [dismissed] charge[s].”). 
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Nevertheless, to the extent that Cary raises an independent claim of 

excessiveness, we discern no abuse of discretion by the sentencing court, 

and conclude that Cary’s sentence, which was within the standard guideline 

range, was neither excessive nor unreasonable. See Commonwealth v. 

Walls, 926 A.2d 957, 964 (Pa. 2007) (stating that “rejection of a sentencing 

court’s imposition of sentence on unreasonableness grounds [should] occur 

infrequently, whether the sentence is above or below the guideline 

ranges.”); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) 

(stating that “where a sentence is within the standard range of the 

guidelines, Pennsylvania law views the sentence as appropriate under the 

Sentencing Code.”). Judge Geroulo properly exercised his discretion in 

imposing a sentence that he deemed appropriate, given, inter alia, (1) the 

court’s prior experience with Cary; (2) the impact of the crime on the 

victims; (3) Cary’s rehabilitative needs; and (4) Cary’s prior offenses. 

Accordingly, Cary is not entitled to relief on this claim.

In his final issue, Cary argues that Judge Geroulo imposed an illegal 

sentence by ordering him to pay $5,800.00 in restitution, where the value of 

the items he had pled guilty to stealing, as reflected on the criminal 

information, was only $2,700.00. See Brief for Appellant at 16-19.

Initially, we note that

[i]n the context of criminal proceedings, an order of restitution is 

not simply an award of damages, but, rather, a sentence. 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. 
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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) 

(citations and quotation marks omitted); see also Commonwealth v. 

Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010).

Mandatory restitution, as part of a defendant’s sentence, is authorized 

by 18 Pa.C.S.A. § 1106, which provides, in relevant part as follows:

(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. ...

* * *

(2) At the time of sentencing[,] the court shall specify the 

amount and method of restitution. In determining the 

amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the 

victim, the victim’s request for restitution ... and such 

other matters as it deems appropriate. 

* * *

[(3)](i) It shall be the responsibility of the district 

attorneys of the respective counties to make a 

recommendation to the court at or prior to the time of 

sentencing as to the amount of restitution to be ordered. 

This recommendation shall be based upon information 

solicited by the district attorney and received from the 

victim.

18 Pa.C.S.A. § 1106(c) (emphasis added).
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In challenging the $5,800.00 in restitution as being unsupported by 

the record, Cary argues that 

the affidavit of probable cause, the criminal information, and 

[Cary’s] guilty plea (written and in court) colloqui[es] identified 

the items stolen from the [victims’] house[,] and which [Cary] 

admitted to “receiving, retaining, or disposing of[,]” as $300.00 

in cash, $600.00 in gift cards, and $1,800.00 in collectible silver 

coins. These items totaled $2,700.00. ... [T]he amount of 

restitution should have been limited to these items and their 

value as stated in the criminal information.

Brief for Appellant at 19 (some capitalization omitted); see also id. at 17-18 

(citing Commonwealth v. Valent, 463 A.2d 1127, 1128 (Pa. Super. 1983) 

(stating that an order of restitution must be supported by the record)).

Though we understand Cary’s claim concerning the discrepancy 

between the two different amounts of restitution that the Commonwealth 

asserted he owes,3 he is not entitled to relief on the merits of his legality of 

sentence challenge. As noted above, Cary’s counsel stated at sentencing, on 

 

3 There is scant information in the certified record concerning the two 

different amounts of restitution, aside from the statements of counsel at 

sentencing. See N.T., 2/18/15, at 2-4. However, the Commonwealth 

asserts in its brief that 

the victim impact statement contained a Scranton Police Department 

“Inventory of Items Stolen or Missing” [(“the Inventory”),] which 

itemized each item taken during the course of [Cary’s] crime. Th[e 

Inventory] was attached to the victim impact statement that was 

provided by the victim[s] to the district attorney. The [I]nventory 

included jewelry that was not calculated into the original restitution 

amount.” 

Brief for the Commonwealth at 16-17 (emphasis added); cf. Brief for 

Appellant at 19 (asserting that Cary “was neither charged with nor pled 

guilty to any criminal offense involving jewelry or any other items taken 

from the [victims’] house.”) (emphasis omitted). The Inventory is not 

contained in the certified record.
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two separate occasions, that although the $5,800.00 in restitution that the 

Commonwealth had demanded at sentencing was more than the amount 

listed on the criminal information, “[Cary] indicate[d] that he’s willing to 

take responsibility for the restitution that’s being demanded.” N.T., 

2/18/15, at 3; see also id. 

Even assuming, arguendo, that the amount of restitution imposed was 

illegal, Cary waived any challenge to the amount of restitution imposed by 

expressly and unequivocally agreeing to it at sentencing. See, e.g., 

Commonwealth v. Byrne, 833 A.2d 729, 736 (Pa. Super. 2003) (where 

the defendant had expressly waived his statutory right to credit for time 

served as part of his guilty plea agreement, stating that “[w]e are aware of 

no authority that provides an impediment to a defendant’s express, 

knowing, and voluntary waiver of a statutory right if that waiver is key in 

obtaining a bargained-for exchange from the Commonwealth.”) (citing, inter 

alia, Peretz v. U.S., 501 U.S. 923, 936 (1991) (stating that “[t]he most 

basic rights of criminal defendants are ... subject to waiver.”)).

Accordingly, as we discern no abuse of discretion by the court in 

sentencing Cary, and he is not entitled to relief on his legality of sentence 

challenge, we affirm Cary’s judgment of sentence.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2015