J-A26014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONALD JOSEPH DINELLO, JR.

Appellant No. 1810 MDA 2014

Appeal from the Judgment of Sentence of July 17, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0003432-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 17, 2015

Donald Dinello appeals the July 17, 2014 judgment of sentence. 

Herein, Dinello raises multiple challenges to the trial court’s exercise of its 

discretion in fashioning Dinello’s sentence. We reject those challenges, and 

we affirm the judgment of sentence.

In 2012, the Attorney General’s Office began investigating Dinello, a 

licensed dentist, for illegally prescribing oxycodone to one of his employees, 

Rachel Amato, and her husband, Mark Amato. Dinello prescribed the pills 

not for any dental procedure or condition, but instead for the Amatos’ 

complaint of back pain. In total, the Attorney General’s Office determined 

that Dinello illegally had prescribed 2700 pills. Additionally, the investigation 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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produced evidence that Dinello had stolen dental supplies, mostly dental 

implants, from Oral Surgery Associates without his partner in that office 

knowing. Dinello then sold the supplies at a discounted rate to another 

dental office, where Dinello also was employed. Dinello kept the proceeds 

from these sales for personal use.

Following a grand jury investigation, which recommended filing 

criminal charges against Dinello, and formal charges by the Attorney 

General, Dinello appeared before the trial court in this case to enter guilty 

pleas. On March 28, 2014, Dinello pleaded guilty to three counts of failure 

to keep records of disposition of controlled substances, 35 P.S. § 780-

113(a)(21), and one count of theft by failure to make required disposition of 

funds. 18 Pa.C.S. § 3927. As part of the plea agreement, the 

Commonwealth agreed that it would not make any particular 

recommendation to the trial court regarding Dinello’s sentence. 

Nonetheless, on July 9, 2014, the Commonwealth filed with the trial court a 

letter in which it detailed the crimes committed by Dinello, and requested 

permission to present oral argument at the time of sentencing. On July 10, 

2014, Dinello’s counsel filed a sentencing memorandum with the court 

detailing all of Dinello’s background, as well as other mitigating evidence 

including a large quantity of letters that were submitted on Dinello’s behalf.

On July 17, 2014, the trial court imposed an aggregate sentence of 

fifteen to thirty months’ incarceration. Even though the maximum sentence 

exceeded two years, the trial court ordered that Dinello could serve the 
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sentence in a county facility and could participate in a work release program 

while there. The Commonwealth did not object to the sentence as ordered. 

However, neither the parties nor the court considered whether the county 

jail had the current capacity to incarcerate Dinello under these 

circumstances. The trial court also ordered Dinello to pay restitution for the 

stolen goods in the amount of $84,550.

On July 22, 2014, the Commonwealth informed the trial court by letter 

that the county jail had reported to the Commonwealth that it was at 140% 

capacity, and that, under those circumstances, it could not house Dinello to 

serve his sentence. Dinello’s counsel responded by sending a letter to the 

trial court requesting that the court carry out its intended sentence by 

ordering Dinello to serve the same amount of time on intermediate 

punishment. On July 28, 2014, Dinello filed a motion to modify his 

sentence, in which Dinello contended that the amount of restitution was not 

supported by the evidence and that the sentence was excessive, and did not 

reflect the mitigating information submitted by Dinello.

On October 1, 2014, the trial court held a hearing on Dinello’s motion. 

At the hearing, despite agreeing to not make any specific recommendations 

regarding the sentence, the Commonwealth urged the trial court to modify 

the sentence from the original sentence to a sentence in a state prison. The 

trial court repeatedly stated that, at all times throughout the proceedings, 

the court believed that Dinello should be incarcerated. Thus, because the 

county jail could not house Dinello, the trial court modified the sentence to 
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be served in a state prison. The length of the actual sentence remained the 

same, fifteen to thirty months. However, Dinello no longer was permitted to 

serve the sentence in a county jail, and no longer was eligible for work 

release. However, because the sentence was modified to a state sentence, 

Dinello became eligible for the Recidivism Risk Reduction Incentive (“RRRI”) 

program, 61 Pa.C.S. §§ 4501–12. Because Dinello was RRRI-eligible, the 

trial court then reduced his minimum release date from fifteen months to 

twelve months. The trial court did not modify the restitution award.

On October 27, 2014, Dinello filed a notice of appeal. In response, the 

trial court directed Dinello to file a concise statement of errors complained of 

on appeal. On December 12, 2014, Dinello timely complied. On April 13, 

2015, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Dinello raises the following questions for our review:

A. Whether the trial court erred by imposing a sentence which 

violates the sentencing code?

B. Whether the trial court abused its discretion by imposing an 

excessive and unreasonable aggregate sentence by running 

the sentences for each count consecutive to each other?

C. Whether the trial court erred by ordering restitution in an 

amount not supported by the record evidence?

D. Whether the trial court erred by failing to rule on [Dinello’s] 

motion to strike restitution order?

Brief for Dinello at 5.

Dinello’s first two issues are challenges to the discretionary aspects of 

his sentence. See Commonwealth v. Fullin, 892 A.2d 843, 850-52 (Pa. 
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Super. 2006) (considering a challenge to a trial court’s decision to commit 

an offender to a state prison instead of a county facility as a challenge to the 

discretionary aspects of the sentence); Commonwealth v. Gonzalez–

Dejusus, 994 A.2d 595, 597-98 (Pa. Super. 2010) (holding that a claim that 

an aggregate sentence involving the imposition of consecutive sentences 

was excessive was a challenge to the discretionary aspects of sentencing). 

An appellant is not entitled to review of such challenges as of right. Instead, 

we conduct a four-part jurisdictional analysis to determine:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal 

quotation marks, citations, and modifications omitted). 

Instantly, Dinello has filed both a timely notice of appeal and a timely 

post-sentence motion to modify his sentence. Additionally, Dinello has 

complied with Rule 2119(f), and has filed a concise statement of the reasons 

why this Court should consider his challenges to the discretionary aspects of 

his sentence. See Brief for Dinello at 24-25. Thus, Dinello has complied 

with the procedural requirements to invoke our jurisdiction. The question 

then becomes whether Dinello has demonstrated within his Rule 2119(f) 
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statement that his challenges present substantial questions with regard to 

each of his challenges.

A substantial question will be found where an appellant advances 

a colorable argument that the sentence imposed is either 

inconsistent with a specific provision of the Sentencing Code or is 

contrary to the fundamental norms which underlie the 

sentencing process. At a minimum, the Rule 2119(f) statement 

must articulate what particular provision of the code is violated, 

what fundamental norms the sentence violates, and the manner 

in which it violates that norm.

Commonwealth v. Bullock, 948 A.2d 818, 826 n. 6 (Pa. Super. 2008) 

(citation omitted).

In his first challenge to his sentence, Dinello argues that the trial court 

abused its discretion by sentencing him to serve his sentence in state prison, 

instead of in the county jail, as was ordered originally. As noted, such an 

argument generally suggests a basic challenge to the trial court’s discretion, 

and would not amount to a substantial question. However, Dinello also 

argues that the court’s modification amounted to an increase in his 

sentence, one that was imposed without a formal post-sentence request to 

do so by the Commonwealth. Considering these together, we conclude that 

Dinello has presented a substantial question sufficient to invoke our 

jurisdiction to review this issue.

Dinello also argues that the trial court violated the Sentencing Code by 

failing to “effectuate its prior order of work release.” Brief for Dinello at 24. 

Essentially, Dinello maintains that the trial court should not have modified its 

original sentencing order, which included the court’s authorization for Dinello 
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to be released from the county jail for work release. Because this argument 

is dependent upon the court’s decision to sentence Dinello to a state facility, 

which we have found creates a substantial question, we will review this issue 

in conjunction with the first issue, and conclude that it too presents a 

substantial question. 

Next, Dinello argues that the trial court abused its discretion by 

refusing his request to serve his sentence on intermediate punishment, 

instead of total confinement. Dinello does not articulate how this particular 

argument either violates the Sentencing Code or represents a deviation from 

the fundamental norms of sentencing. Hence, Dinello has not presented a 

substantial question with regard to this particular argument.

Finally, Dinello argues that his aggregate sentence is excessive and 

unreasonable, was not crafted with the purpose of protecting the public and 

was not proportionate to the gravity of the offense, and was imposed 

without consideration of Dinello’s rehabilitative needs. Generally, claims of 

excessiveness and failure to consider rehabilitative needs do not, by 

themselves, raise substantial questions. However, when presented in 

conjunction with one another, they create a substantial question. 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Thus, 

based upon the argument Dinello presents in his Rule 2119(f) statement, we 

conclude that he has raised a substantial question. 

We turn now to the merits of Dinello’s claims. We begin with our 

standard of review:
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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. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) 

(quotations and citations omitted). 

The crux of Dinello’s first issue is that the trial court erred when it 

modified his sentence during the post-sentence motion hearing. More 

specifically, Dinello claims that the change of the location where he was 

ordered to serve his sentence, from a county facility to a state facility, 

constituted an increase in his sentence. Such an increase, Dinello argues, 

cannot occur unless the Commonwealth first asks the court to increase the 

sentence in a post-sentence motion. We disagree that the change 

constituted an increase, and we hold that the trial court did not abuse its 

discretion when it modified the sentence.1

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1

In his brief, Dinello presents this question as a challenge to the legality 

of his sentence. See Brief for Dinello at 26. However, earlier in his brief, he 

characterized the issue as one implicating the discretionary aspects of his 

sentence. Id. at 24. As noted earlier, this Court has characterized 

questions involving the trial court’s decision to require an offender to serve 

qualifying sentences at a county facility or a state facility as falling within a 

trial court’s discretion. See Fullin, supra. Nonetheless, because we have 

found that the issue creates a substantial question, we review the issue on 

its merits. The designation of whether this is a discretionary aspect 

challenge or a legal challenge does not impact our resolution of this case. 
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Following Dinello’s guilty plea, the trial court consistently maintained 

that it believed that Dinello must be incarcerated as punishment for his 

offenses. At the original sentencing, the court sentenced Dinello to fifteen to 

thirty months’ incarceration. At the end of the hearing, the court 

determined, without objection from the Commonwealth, that Dinello could 

serve the sentence in the county jail. Counsel for Dinello requested that 

Dinello be declared eligible, inter alia, for work release. The trial court 

accepted counsel’s requests, and fashioned the sentence accordingly. 

Shortly thereafter, the Commonwealth learned that the county jail was 

at 140% capacity and would not accept a prisoner who was serving a 

sentence that, by its length, qualified as a state sentence. The 

Commonwealth promptly informed the trial court of this development by 

letter. The letter was sent to the court on July 22, 2014, less than a week 

after sentencing. Dinello then filed a post-sentence motion. At the hearing 

on the motion, the trial court realized that the sentence could not remain as 

it was originally imposed because the jail could not certify that space was 

available to house Dinello. See 42 Pa.C.S. § 9762(b)(2)(i) (“The chief 

administrator of the county prison, or the administrator’s designee, has 

certified that the county prison is available for the commitment of persons 

sentenced to maximum terms of two or more years but less than five 

years.”). Therefore, the court imposed the same sentence as it had 

originally ordered, but required that the incarceration be spent in a state 

prison instead of a county jail. 
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Dinello contests the modification of his sentence primarily in reliance 

upon this Court’s decision in Commonwealth v. Nickens, 923 A.2d 469 

(Pa. Super. 2007). In that case, the appellant, after having violated his 

probation multiple times, received an aggregate sentence of twenty to 

seventy-two months in prison. Id. at 471. The appellant filed a postsentence motion within ten days of the sentence. After the ten-day period 

expired, the Commonwealth filed a response to the post-sentence motion, as 

well as “new matter,” in which the Commonwealth requested that the trial 

court increase the appellant’s sentence. The trial court denied the 

appellant’s motion, but granted the Commonwealth’s request and increased 

the appellant’s aggregate sentence. Id.

On appeal, we vacated the sentence and remanded for the trial court 

to reinstate the original sentence. We explained that a trial court cannot 

increase a sentence based only upon a defendant’s post-sentence motion, 

because a trial court cannot raise issues (such as increasing a sentence) sua 

sponte. Id. at 472 (citing Commonwealth v. Broadie, 489 A.2d 218, 222 

n.5 (Pa. Super. 1985)). In order for a trial court to increase a sentence, the 

Commonwealth must file its own post-sentence motion requesting as much. 

Nickens, 923 A.2d at 471-3. In Nickens, the Commonwealth raised the 

issue in “new matter” in an answer to the appellant’s post-sentence motion, 

which was filed after the ten-day period in which post-sentence motions 

must be filed. See Pa.R.Crim.P. 720(A)(1). We noted that no authority 

existed that would permit the Commonwealth to raise new issues in such a 
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manner. However, in a footnote, we explained that, because the submission 

was untimely, we need not decide the issue of whether the response and 

“new matter” could be construed together as a post-sentence motion had 

they been filed within ten days. Nickens, 923 A.2d at 472 n.4. 

Nickens undisputedly stands for the proposition that the only way in 

which a trial court can increase a sentence on post-sentence motions is by 

filing a timely post-sentence motion that requests such action. At first 

blush, it would seem that Nickens compels relief in this case, as Dinello 

contends. However, upon closer inspection, it becomes apparent that 

Nickens is distinguishable for one important reason: Dinello’s sentence was 

not increased. 

At the original sentencing hearing, the trial court imposed a sentence 

of fifteen to thirty months’ incarceration. At the second hearing, the court 

imposed a sentence of exactly the same length. The only thing that changed 

was the location at which Dinello had to serve the sentence. In other words, 

the length of his sentence did not increase; it was only the place at which 

Dinello had to serve the sentence that changed. Nothing in Nickens

indicates that “increase” means anything other than the length of the 

sentence. Presently, Dinello maintains that the sentence increased because 

he no longer is eligible for work release and will not enjoy the comforts of 

serving his sentence at a location close to his home and family. Dinello 

provides no cases from this Court, or any court, in support of such an 

expansive definition of “increase.” Nickens provides no support for the 
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notion that changing the place of incarceration is the same as increasing the 

length of the sentence. Finally, although not dispositive, it is worth noting 

that the modification in the sentence made Dinello eligible for the RRRI 

program, meaning that the date at which he is eligible for release is three 

months shorter than it was in his original sentence. Arguably, the duration 

of his sentence may actually have decreased, not increased.

For these reasons, we detect no errors or abuses of the court’s 

discretion when it modified Dinello’s sentence. Simply put, the court did not 

increase the sentence, and, therefore, Nickens does not apply here.2

Dinello’s next argument is entirely dependent upon his first. Dinello 

contends that the trial court erred by abandoning its original grant of work 

release. Work release is only an option when the defendant is sentenced to 

serve a term of incarceration in a county jail. See 42 Pa.C.S. § 9813(a) 

(providing that a person who is sentenced to serve a jail term of less than 

five years in a county jail may be approved for work release). Because we 

have concluded above that the modification from a county jail sentence to a 

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2 Notably, like the Court in Nickens, we need not decide whether the 

Commonwealth’s July 22, 2014 letter could be construed as a post-sentence 

motion. However, we note that, unlike the pleading in Nickens, the 

Commonwealth’s letter here was submitted within ten days of the date of 

sentence. 
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state sentence was not erroneous or an abuse of discretion, this argument 

necessarily fails as well.3

In his second issue, Dinello contends that the trial court “abused its 

discretion by imposing an excessive and unreasonable aggregate sentence 

by running the sentences for each count consecutive to one 

another.” Brief for Dinello at 33 (emphasis added). We have highlighted 

this particular portion of Dinello’s statement of his argument because it 

differs significantly from the argument that he suggested as presenting a 

substantial question in his Rule 2119(f) statement. In that statement, 

Dinello argued only that his sentence was excessive and was imposed 

without consideration for his rehabilitative needs. However, in the argument 

section of his brief, Dinello’s principal claim is that the trial court abused its 

discretion by imposing consecutive, rather than concurrent sentences, with 

the above-highlighted portion being only one example of many such 

assertions. Dinello did not include any discussion in his Rule 2119(f) 

statement about whether that aspect of his sentence constitutes a 

substantial question. Thus, we lack jurisdiction to review this issue.

____________________________________________

3 Dinello makes a third challenge to his sentence. He maintains that the 

trial court abused its discretion by rejecting his request to have the sentence 

modified from incarceration to intermediate punishment. However, as noted 

earlier, Dinello has not demonstrated that this argument constitutes a 

substantial question. See supra at 7. Consequently, we lack jurisdiction to 

review this issue.
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In his third issue, Dinello contests the trial court’s restitution award, 

maintaining that the amount was not supported by the evidence of record. 

“[R]estitution is not simply an award of damages, but, rather, a sentence.” 

Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008) (citation 

omitted). “An appeal from an order of restitution based upon a claim that 

the restitution order is unsupported by the record challenges the legality, 

rather than the discretionary aspects, of sentencing.” Commonwealth v. 

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

v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004)). “[T]he 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.” 

Atanasio, 997 A.2d at 1183 (quoting Commonwealth v. Hughes, 986 

A.2d 159, 160 (Pa. Super. 2009)). 

It is the Commonwealth’s burden of proving its entitlement to 

restitution. Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. 

Super. 2004) (stating that the amount of restitution must be 

supported by the record). When fashioning an order of 

restitution, the lower court must ensure that the record contains 

the factual basis for the appropriate amount of restitution. 

Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. Super. 

2007). The 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. The amount of the restitution award 

may not be excessive or speculative. Commonwealth v. Rush, 

909 A.2d 805, 810 (Pa. Super. 2006). It is well-settled that 

“[a]lthough it is mandatory under [18 Pa.C.S. § 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.” Commonwealth v. Ortiz, 854 

A.2d 1280, 1282 (Pa. Super. 2004).
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Atanasio, 997 A.2d at 1183 (citation modified).

After hearing testimony and receiving evidence at sentencing from 

both parties, the trial court calculated restitution for the theft of the dental 

implants (which were the items that Dinello stole) to be $84,550. Dinello 

contends that this total was inaccurate because the trial court “ignored the 

record evidence and issued a restitution amount based on inaccurate 

numbers, and which failed to consider the nature of the dispute regarding 

the business partnership at issue.” Brief for Dinello at 37. Dinello further 

maintains that the trial court arbitrarily used a value of $475 for each dental 

implant that he stole, instead of $239, which Dinello maintains was the 

actual cost when they were purchased in bulk. Ultimately, Dinello asserts 

that the restitution award “bears no relationship to the alleged harm caused 

to” Dinello’s dental partner. 

In large part, Dinello’s argument amounts to a plea to this Court to 

reweigh the testimony that the trial court received in his favor. We will not 

do so. 

At the sentencing hearing, because no formal audit was performed, 

both parties presented their own witnesses regarding the amount. However, 

no one could provide a specific and accurate amount of loss to the victim. 

The court first had to determine how many dental implants actually were 

stolen. The victim, Dinello’s dental partner, testified that 210 implants were 

stolen. However, the practice that was the recipient of Dinello’s stolen 

goods indicated that it had received 192 implants. Each party also 
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submitted exhibits and documentation for the court’s review. Dinello 

submitted an exhibit which indicated that 178 implants were at issue. 

From the testimony and documentation, the Commonwealth 

maintained that 223 implants were stolen. Dinello maintained that the 

correct number was 178. Initially, the trial court indicated that it would split 

the difference between the numbers, and calculate restitution based upon 

185 stolen implants. However, later, to be as fair and accommodating to 

Dinello as possible, the trial court agreed to use Dinello’s proffered number 

of 178. Thus, that portion of the court’s restitution order undoubtedly was 

supported by the record evidence. 

The court and the parties struggled with how much each implant was 

worth. Dinello argued that, because no one had submitted a precise value, 

determining the cost per implant was impossible. The court noted that the 

parties had submitted a range of values through the testimony and the 

exhibits. The low end of the range was approximately $239, which 

represented a discounted bulk price that Dinello had paid for some of the 

implants, but was not necessarily an accurate reflection of the value of each 

implant because each would have been sold at a higher value. Other 

documentation set the value between $422 to $612. The court believed that 

the high end of the range was too high. Ultimately, the court settled on 

$475 per implant, which was near the median of the range and fell within 

the ranges produced by the parties. 
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The trial court then multiplied the $475 by 178 implants, and set 

restitution at $84,550. As we explained, the number was supported by the 

evidence, and the Commonwealth met its restitution burden.

In his final argument, Dinello maintains the trial court failed to rule 

upon his motion to strike restitution. Dinello recognizes that, pursuant to 

Pa.R.Crim.P. 720(b)(3)(c), if a judge does not rule upon a post-sentence 

motion, that motion is denied automatically at the expiration of one hundred 

and twenty days by operation of law. Dinello nonetheless maintains that the 

clerk of courts never entered an order confirming that the motion was 

denied. However, Dinello does not explain what, if any, remedy would be 

available for such a misstep by the trial court or the clerk of courts, and has 

not shown that he is entitled to an specific relief. More importantly, Dinello 

was not denied review of his challenge to the restitution, and, for the 

reasons set forth above, that challenge is meritless. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2015