J-S79026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
          v.                            :
                                        :
                                        :
ALDEN LEANIER                           :
                                        :
               Appellant                :   No. 571 EDA 2017

               Appeal from the PCRA Order January 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012100-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 24, 2018

      Alden Leanier appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed under the Post

conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, without a hearing. We

affirm.

      On May 1, 2011, Leanier assaulted his then-girlfriend, Deborah Taylor,

in the bedroom of her house. Leanier restrained and repeatedly hit Taylor.

The next day, Taylor changed the locks on the doors of her house. A few days

later, while Taylor was at work, Leanier broke into her house, stopped up the

bathtub drain, turned on the water and left. When Taylor returned, her house

was flooded. The cost of repair was $119,226.00.
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       Leanier entered a negotiated plea of nolo contendere to criminal

mischief, unlawful restraint and simple assault.1 The court sentenced Leanier

to 9 to 23 months’ incarceration, followed by five years’ probation. The court

also awarded restitution in the amount of $119,226.00 ($2,500.00 to the

victim and $116,726.00 to the victim’s insurance company).

       Leanier did not file post-sentence motions.         He filed a timely pro se

notice of appeal on July 5, 2012. The court appointed counsel, who filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, stating there

were no non-frivolous issues preserved for appeal. The trial court filed a Rule

1925(a) opinion, and counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), seeking to withdraw.           This Court affirmed Leanier’s judgment of

sentence and granted counsel leave to withdraw. Commonwealth v.

Leanier, 1953 EDA 2012 (unpublished memorandum, filed July 26, 2013).

       On July 24, 2014, Leanier filed a PCRA petition.           The PCRA court

appointed counsel. Counsel filed an amended petition on October 23, 2015,

claiming trial counsel was ineffective for failing to file a post-sentence motion

challenging the restitution award.             The Commonwealth filed a motion to

dismiss the petition and, on December 2, 2016, the court issued notice of

intent to dismiss pursuant to Pa.R.Crim. 907. On January 30, 2017, the PCRA

court denied the petition and Leanier filed a notice of appeal. The trial court
____________________________________________


118   Pa.C.S.A. §§ 3304, 2902, and 2701.


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filed an order directing Leanier to file a Rule 1925(b) statement. Leanier filed

his Rule 1925(b) statement on March 17, 2017.

      On appeal, Leanier raises one issue: did the PCRA court err in denying

him an evidentiary hearing when he raised a material issue of fact that trial

counsel was ineffective in failing to file post-sentence motions requesting

reconsideration of the restitution award of $116,726.00?

      Pennsylvania Rule of Criminal Procedure 907 provides that

      [i]f the judge is satisfied . . . that there are no genuine issues
      concerning any material fact and that the defendant is not entitled
      to post-conviction collateral relief, and no purpose would be
      served by any further proceedings, the judge shall give notice to
      the parties of the intention to dismiss the petition and shall state
      in the notice the reasons for the dismissal.

Pa.R.Crim.P. 907(1). “[T]he PCRA court can decline to hold a hearing if there

is no genuine issue concerning any material fact and the petitioner is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035,

1040 (Pa. Super. 2007). See also Commonwealth v. Morrison, 878 A.2d

102, 109 (Pa. Super. 2005) (“A PCRA hearing is not a matter of right, and the

PCRA court may decline to hold a hearing if there is no genuine issue

concerning any material fact and the defendant is not entitled to relief as a

matter of law.”); Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super.

2002) (“The right to an evidentiary hearing on a post-conviction petition is not

absolute. A PCRA court may decline to hold a hearing if the petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

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from other evidence.”).       A PCRA court’s decision to deny a request for an

evidentiary hearing will not be overturned absent an abuse of discretion.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

       Leanier claims counsel was ineffective for failing to file a post-sentence

motion challenging the restitution award. As this Court noted on direct appeal,

any claim that restitution is excessive is a challenge to discretionary aspects

of sentencing[.]” Commonwealth v. Leanier, supra at *8, n.5. See

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006) (when court’s

authority to impose restitution is challenged, it concerns legality of sentence;

when challenge is based on excessiveness, it concerns discretionary aspects

of sentence). Here, Leanier entered a negotiated plea, which limits his claims

on appeal to 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,

770 (Pa. Super. 2012), citing Commonwealth v. Boyd, 835 A.2d 812, 819

(Pa. Super. 2003).        The legality of a sentence is a non-waivable issue.

Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007). The fact that counsel

failed to file post-sentence motions to preserve a discretionary challenge is,

therefore, inconsequential, and Leanier’s claim of ineffectiveness is clearly

meritless. The PCRA court correctly denied relief without a hearing.2


____________________________________________


2 With respect to the legality of the restitution order, we emphasize that
restitution is authorized by 18 Pa.C.S.A. § 1106, which specifically mandates
full restitution where a defendant’s crimes directly resulted in loss of property.



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____________________________________________


Section 1106 of the Crimes Code, restitution for injuries to person or property,
provides:

       (a) General rule.—Upon conviction for any crime wherein
       property has been stolen, converted or otherwise unlawfully
       obtained, or its value substantially decreased as a direct result of
       the crime, or wherein the victim suffered personal injury directly
       resulting from the crime, the offender shall be sentenced to make
       restitution in addition to the punishment prescribed therefor.



18 Pa.C.S.A. § 1106 (emphasis added). Subsection (c)(1)(i) of section 1106
pertains to mandatory restitution and states in pertinent part that the court
“shall order full restitution . . . so as to provide the victim with the fullest
compensation for the loss,” and that the court “shall not reduce a restitution
award by any amount that the victim has received from an insurance company
but shall order the defendant to pay any restitution ordered for loss previously
compensated by an insurance company to the insurance company.” 18
Pa.C.S.A. § 1106(c)(1)(i) (emphasis added). See also 18 Pa.C.S.A. §
1106(h) (“Victim” includes “any insurance company that has compensated the
victim for loss under an insurance contract.”).

As this Court stated on direct appeal:

       The statute specifically mandates restitution to the victim, as well
       as any insurance company which provided reimbursement to the
       victim as a result of the appellant’s criminal conduct. See 18
       Pa.C.S.A. § 1106. That is precisely what occurred in this case,
       and therefore, . . . the trial court had the statutory authority to
       order full restitution to the victim and the insurance company.

Commonwealth v. Leanier, supra at *8.                    The Commonwealth
demonstrated that Taylor’s insurance company assessed the damage to be
worth a specific sum of money, for which Taylor was paid. Thus, a clear factual
basis was established for awarding restitution in the amount paid by the
insurance to compensate Taylor for the damage caused by Leanier’s criminal
conduct. See also 18 Pa.C.S.A. § 1106(c)(1)(i) (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.”); Commonwealth v. Leber, 802 A.2d 648, 652
(Pa. Super. 2002) (recent amendments to Sentencing and Crimes Codes



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       Order affirmed.

       Judge Ott joins the Memorandum.

       President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/18




____________________________________________


establish that restitution in criminal case is mandatory and defendant’s ability
to pay is irrelevant unless and until he defaults on restitution order), citing
Commonwealth v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998).




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