J-A09031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW WAYNE MITCHELL

Appellant No. 1804 EDA 2014

Appeal from the Order dated May 21, 2014

In the Court of Common Pleas of Pike County

Criminal Division at No: CP-52-CR-0000406-2013

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015

Appellant Matthew Wayne Mitchell appeals from the May 21, 2014 

order of the Court of Common Pleas of Pike County (“trial court”), which 

granted the Commonwealth’s motion to modify the amount of restitution 

imposed. Upon review, we vacate the order and remand the matter to the 

trial court for issuance of a new order in compliance with Pa.C.S.A. 

§ 1106(c)(3). 

The facts and procedural history underlying this case are uncontested. 

Briefly, in addition to breaking into a residential structure, Appellant along 

with his co-defendants “stole a silver in color 2005 GMC Canyon . . . and 

drove it away[.]” Affidavit of Probable Cause, 8/14/13, at ¶ 4. Appellant 

and his co-defendants “then traveled in the stolen GMC pickup truck to a

tributary water near Lake Wallenpaupack[,] placed a rock on the gas pedal 
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of the vehicle and watched the vehicle travel into the water and submerge 

out of sight.” Id. January 2, 2014, Appellant pled guilty to burglary under 

Section 3502(a)(2) of the Crimes Code (“Code”), 18 Pa.C.S.A. § 3502(a)(2), 

and two counts of theft by unlawful taking under Section 3921(a) of the 

Code, 18 Pa.C.S.A. § 3921(a) at docket no. 406-2013.1 On February 21, 

2014, the trial court sentenced Appellant to an aggregate term of 18 to 36 

months’ imprisonment for the foregoing crimes at docket no. 406-2013. 

Additionally, the trial court imposed upon Appellant, jointly and severally 

with his co-defendants, restitution for $800.00. Appellant did not appeal the 

judgment of sentence. On April 8, 2014, the Commonwealth filed a motion 

titled “Recommendation of Restitution” under 18 Pa.C.S.A. § 1106(c)(3), 

requesting the trial court to modify the amount of restitution imposed to 

include $25,445.59 to the victim Nationwide Insurance (“Nationwide”) in 

connection with the GMC truck. Following a hearing, on May 21, 2014 the 

trial court granted the Commonwealth’s modification request. Appellant filed 

a timely appeal. Following Appellant’s filing of a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, the trial court issued its 

Pa.R.A.P. 1925(a) opinion, addressing, inter alia, Appellant’s challenge to the 

trial court’s modification of restitution imposed.

____________________________________________

1 Appellant also pled guilty to theft by unlawful taking at docket no. 413-

2013 and theft by unlawful taking and defiant trespass at docket no. 567-

213.
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On appeal, Appellant essentially raises two arguments for our review. 

First, Appellant argues the trial court erred in granting the Commonwealth’s 

motion for modification of restitution because the Commonwealth could have 

known at the time of sentencing that the amount of restitution sought was 

subject to modification. Second, Appellant argues the trial court failed to 

comply with 18 Pa.C.S.A. § 1106(c)(3) to the extent it did not provide on 

the record its reasons for modification of restitution imposed.

Because Appellant’s arguments relate solely to the legality of 

sentence, our standard of review is de novo and our scope of review is 

plenary. See Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 

2014).

Appellant first argues the trial court erred in modifying the restitution 

imposed because the Commonwealth could have ascertained prior to, or at 

the time of, sentencing Nationwide’s claim for restitution. In support of his 

argument, Appellant relies on Commonwealth v. Ortiz, 854 A.2d 1280 

(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1145 (Pa. 2004). In 

Ortiz, we determined an amendment to a restitution sentence entered more 

than 30 days after the original sentence imposed is appropriate only where it 

is based on “something that was not known and could not have been 
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reasonably ascertained at the time of the original order was entered.”2 Id.

at 1283. 

In Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009), however, 

our Supreme Court expressly rejected the notion that facts supporting a 

restitution amendment “must embody something that was not known and 

could not have been reasonably ascertained at the time the original order 

was entered.” Dietrich, 970 A.2d at 1135. The Court explained:

The plain language of § 1106(c)(3) provides courts with broad 

authority to modify restitution amounts at any time if the court 

states reasons for doing so as a matter of record. 18 Pa.C.S.[A.] 

§ 1106(c)(3) (emphasis added). There is no statutory 

requirement the reasons for modification be 

undiscoverable at the time of sentencing. Section 

1106(c)(3)’s broad language indicates a legislative intent that 

courts have jurisdiction to modify restitution orders at any time 

without regard to when information should have been present 

for consideration. Id.; cf. 42 Pa.C.S.[A.] § 5505.

Id. (bolded emphasis added). Based on the Court’s rationale in Dietrich, 

Appellant first argument is devoid of merit. The trial court was not required 

to deny the Commonwealth’s motion for modification of restitution imposed 

simply because the Commonwealth could have ascertained Nationwide’s loss 

prior to, or at the time of, sentencing. 

Appellant next argues the trial court erred in modifying the amount of 

restitution imposed without providing its reasons for so doing as a matter of 

record. We agree. 

____________________________________________

2 Appellant does not argue the trial court lacked jurisdiction to modify the 

amount of restitution imposed 30 days after sentencing.
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The Crimes Code provides restitution may be altered or amended at 

any time provided that the court gives its reasons and conclusions for 

any change on the record.

3

 See 18 Pa.C.S.A. § 1106(c)(3); see also 

Dietrich, 970 A.2d at 1135 (noting “a sentencing court may modify 

restitution orders at any time if the court states its reasons as a matter of 

record”). The Supreme Court in Dietrich applied Section 1106(c)(3) and 

concluded that the trial court erred in failing to give its reasons for 

modification of restitution on the record. Id. As a result, the Court vacated 

the restitution order and remanded the matter to the trial court for 

resentencing. Id. 

Instantly, the record plainly reveals the trial court, like the trial court 

in Dietrich, failed to provide on the record its reasons for modifying the 

amount of restitution imposed to include restitution in favor Nationwide for 

$25,445.59. Accordingly, under Dietrich, we must vacate the May 21, 2014 

order and remand this case to the trial court for issuance of a new order in 

____________________________________________

3 Section 1106(C), relating to mandatory restitution, provides in pertinent 

part:

(3) The court may, at any time or upon the recommendation of 

the district attorney that is based on information received from 

the victim . . . 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). 
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accordance with 18 Pa.C.S.A. § 1106(c)(3). Specifically, on remand, the 

trial court is directed to provide its reasons for modification on the record.

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015