J-A09032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTIAN PAROLINE

Appellant No. 812 EDA 2014

Appeal from the Judgment of Sentence entered February 7, 2014

In the Court of Common Pleas of Pike County

Criminal Division at Nos: CP-52-CR-0000399-2013; CP-52-CR-0000402-

2013; and CP-52-CR-0000525-2013

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

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

Appellant Christian Paroline appeals from the judgment of sentence 

entered in the Court of Common Pleas of Pike County (“trial court”), after he 

pled guilty to burglary, multiple counts of theft by unlawful taking, and 

defiant trespass.1 Upon review, we affirm the original judgment of sentence, 

but vacate the amended order of restitution. 

On February 7, 2014, following Appellant’s guilty plea to the foregoing 

crimes, the trial court sentenced Appellant to an aggregate term of 2 to 5 

years’ imprisonment and ordered him to pay $800.00 in restitution. 

Appellant did not file any post-sentence motions. On March 7, 2014, 

Appellant filed a timely appeal. Upon the trial court’s direction, Appellant 

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1 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 3503(b)(1)(ii) respectively. 
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filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, 

challenging the discretionary aspects of his sentence. On April 8, 2014, 

while the appeal was pending, 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 $25,447.59 to the victim Nationwide Insurance (“Nationwide”). 

Following a hearing, on May 21, 2014 the trial court granted the 

Commonwealth’s modification request. On July 30, 2014, Appellant filed an 

amended Rule 1925(b) statement, wherein he included a challenge to the 

trial court’s modification of restitution imposed. 

On appeal, Appellant raises two issues for our review:

[1.] Whether the [t]rial [c]ourt imposed an excessive maximum 

sentence under the circumstances when ordering that 

[Appellant] be incarcerated in a State Correctional Facility?

[2.] Whether the [t]rial [c]ourt erred in correcting [Appellant’s] 

[s]entencing [o]rder more than 3 months after the imposition of 

sentence to provide that [Appellant] pay [r]estitution in the 

amount of $25,447.59[?]

Appellant’s Brief at 8.

“Initially, we note that when a defendant enters a guilty plea, he or 

she waives all defects and defenses except those concerning the validity of 

the plea, the jurisdiction of the trial court, and the legality of the sentence 

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 

2012) (citation omitted). “Our law presumes that a defendant who enters a 

guilty plea was aware of what he was doing. He bears the burden of proving 
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otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011) (citation omitted). “However, when the plea agreement is open, 

containing no bargained for or stated term of sentence, the defendant will 

not be precluded from appealing the discretionary aspects of h[is] 

sentence.”2 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 

1999) (citation omitted).

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 

1220 (Pa. Super. 2011). Rather, where an appellant challenges the 

discretionary aspects of a sentence, an appellant’s appeal should be 

considered as a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in 

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

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part 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 

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2 The record in this case reveals that Appellant entered into open guilty pleas 

to the extent the maximum term of incarceration was subject to the trial 

court’s discretion.
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sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. 

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Instantly, we conclude Appellant failed to satisfy the Moury test. 

Although Appellant filed a timely notice of appeal, he did not preserve his 

discretionary aspects sentencing challenge either at sentencing or in a postsentence motion. See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. 

Super. 2014) (Appellate review of discretionary aspects of sentencing claims 

unavailable when the claims were not raised at sentencing or in a postsentence motion); see also Commonwealth v. Griffin, 65 A.3d 932, 935 

(Pa. Super. 2013) (“Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing or in a 

motion to modify the sentence imposed.”), appeal denied, 76 A.3d 538 

(Pa. 2013). Accordingly, Appellant’s discretionary aspects of sentence claim 

is waived. 
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Appellant next argues the trial court erred in modifying the amount of 

restitution imposed three months after the judgment of sentence.3 The crux 

of Appellant’s argument is that the Commonwealth should have known about 

the amount of restitution sought by Nationwide at the time of sentencing. 

We, however, need not address this argument.

We recently determined in Commonwealth v. Weathers, 95 A.3d 

908, 912 (Pa. Super. 2014), that a trial court is divested of jurisdiction to 

modify the amount of restitution imposed while an appeal from the 

judgment of sentence is pending. The Weathers Court reasoned: 

Despite the “at any time” language of section 1106(c)(3), we are 

compelled to conclude that in this case the trial court did not 

have jurisdiction to modify the order of restitution due to 

Appellant’s timely filing of a notice of appeal. While neither the 

Commonwealth nor Appellant focus on the jurisdictional 

implications of Appellant’s filing of a notice of appeal, it is well 

established that “questions of jurisdiction may be raised sua 

sponte.” See Commonwealth v. Coolbaugh, 770 A.2d 788, 

791 (Pa. Super. 2001) (internal citation omitted). After the trial 

court denied Appellant’s post-sentence motion, Appellant filed a 

timely notice of appeal on April 19, 2013. At that point, the trial 

court no longer had jurisdiction to proceed in this matter. See

Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these 

rules, after an appeal is taken or review of a quasijudicial order 

is sought, the trial court or other government unit may no longer 

proceed further in the matter.”); Commonwealth v. Ledoux,

768 A.2d 1124, 1125 (Pa. Super. 2001) (“Jurisdiction is vested 

in the Superior Court upon the filing of a timely notice of 

appeal.”). Nevertheless, the trial court entered an order 

amending the amount of restitution on June 3, 2013. Despite 

the flexibility granted to the court to amend orders of restitution 

under section 1106(c)(3), here the court could not modify the 

____________________________________________

3 Because such an argument relates to the legality of sentence, our standard 

of review is be de novo and our scope of review is plenary. See 

Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014).
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order of restitution during a period when it did not have 

jurisdiction over the case.

Weathers, 95 A.3d at 912 (footnotes omitted). As a result, the Weathers

Court vacated the trial court’s amended order of restitution, with instructions 

that “the trial court may subsequently amend the order of restitution when it 

regains jurisdiction, following the conclusion of this appeal, provided that the 

court states its reasons for doing so as a matter of record.” Id. at 913.

The case sub judice is similar to Weathers to the extent the trial court 

modified the amount of restitution imposed after an appeal had been filed. 

Here, as stated earlier, Appellant appealed the judgment of sentence on 

March 7, 2014, and 75 days later on May 21, 2014, the trial court issued an 

order modifying restitution. Under Weathers, the trial court did not have 

jurisdiction to modify the amount of restitution while Appellant’s appeal was 

pending in this Court. Accordingly, we vacate the trial court’s May 21, 2014 

order modifying the amount of restitution. Under Section 1106(c)(3), 

however, the trial may subsequently modify the amount of restitution 

imposed when it regains jurisdiction, following the conclusion of this appeal, 

provided that the court states its reasons for doing so as a matter of record. 

See Weathers, supra.

Judgement of sentence affirmed. May 21, 2014 order of restitution 

vacated. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015