J-S66020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellee        :
                                        :
            v.                          :
                                        :
MICHAEL DAVID ZRNCIC,                   :
                                        :
                        Appellant       :     No. 420 MDA 2014


              Appeal from the Order Entered January 31, 2014,
            In the Court of Common Pleas of Cumberland County,
              Criminal Division, at No. CP-21-CR-0002531-2008.


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED JANUARY 29, 2015

      Appellant, Michael David Zrncic, appeals pro se from the order denying

his Motion for Modification of Sentence. For the reasons that follow, we are

constrained to reverse the order and remand to the trial court for

proceedings consistent with this memorandum.1

      The facts of the crime were briefly summarized at the January 8, 2009

guilty plea hearing as follows:

            The facts of the case are that in the time period between
      Tuesday, February 14, 2008, and Tuesday, April 15, 2008, the
      defendant did have inappropriate contact with a minor who was
      under the age of 16. That inappropriate contact included having
      the minor perform oral sex on him. So the penetration was of
      him into her mouth.



1
   We note with disapproval the Commonwealth’s failure to file an appellate
brief in this case.
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N.T. (Guilty Plea), 1/8/09, at 2. The fifteen-year-old victim was a student at

the karate school owned by thirty-one-year-old Appellant and his wife.

Appellant also taught mathematics at Cedar Cliff High School.           Id. at 3;

Presentence Investigation Report, at 2.         Appellant was charged with one

count each of involuntary deviate sexual intercourse (“IDSI”) and unlawful

contact with a minor, both first-degree felonies, two counts each of

aggravated indecent assault, second-degree felonies, and corruption of a

minor, first-degree misdemeanors, and three counts of indecent assault

graded as a second-degree misdemeanor.             On November 24, 2008, the

Commonwealth      gave   notice    it   would   proceed   under   the   mandatory

sentencing provisions of 42 Pa.C.S. § 9718 and seek a ten-year mandatory

minimum sentence for IDSI and a five-year mandatory minimum sentence

for aggravated indecent assault.

      Pursuant to a negotiated guilty plea, Appellant pled guilty on January

8, 2009, to one consolidated count of aggravated indecent assault with

application of a five-year mandatory minimum sentence. N.T. (Guilty Plea),

1/8/09, at 2.     At sentencing, on April 28, 2009, the Commonwealth

requested deferral of a restitution order, indicating it “will then file a motion

to modify related specifically to restitution” after providing the specific

information to defense counsel. N.T. (Sentencing), 4/28/09, at 4. The trial

court stated, “I will order restitution generally without a specific amount




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with the understanding that you will file a motion to modify. We will either

have a hearing or an agreed amount of restitution set.”           Id. at 4–5

(emphasis added). The judgment of sentence provided, in pertinent part, as

follows:   “Restitution is ordered to be determined at a hearing to be

scheduled.” Order, 4/28/09 (emphasis added).

      On May 11, 2009, the Commonwealth filed a Motion to Modify

Restitution Pursuant to 18 Pa.C.S. § 1106(c)(3). On May 12, 2009, the trial

court filed an order directing “that the sentence order of April 28, 2009, be

modified to include restitution,” payable to the victim’s mother, in the

amount of $2598.14 (emphasis added).2 In that order, the trial court added

a handwritten notation stating, “If defendant contests this order of

restitution he should request a hearing within 10 days of this date.” Order,

5/12/09.

      Appellant asserts that he was not represented by counsel at the time

the Commonwealth filed its Motion to Modify Restitution Pursuant to 18

Pa.C.S. § 1106(c)(3) and that he was not served with either the motion or




2
   In its Motion to Modify Restitution Pursuant to 18 Pa.C.S. §1106(c)(3), the
Commonwealth averred that this amount represented the cost of a
replacement computer, unreimbursed karate lessons, and unreimbursed
counseling sessions for the victim. Motion to Modify Restitution, 5/11/09, at
2.



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the modified order of restitution.3 Appellant’s Brief at 4. Appellant did not

file a request for a hearing, and the court did not hold a hearing. 4 Appellant

did not file an appeal from the judgment of sentence.

      On June 27, 2012, Appellant filed a pro se Motion for Correction of

Illegal Sentence asserting that a mandatory minimum sentence pursuant to

42 Pa.C.S. § 9718 was inapplicable to the crime to which he pled guilty,

aggravated indecent assault, 18 Pa.C.S. § 3125(a)(8), thereby rendering his

sentence illegal.5   The lower court treated the filing as a Post Conviction

Relief Act (“PCRA”) petition and appointed counsel, who filed an amended

petition on November 30, 2012.      Order, 9/26/12.     The PCRA court held a

hearing on January 23, 2013, and on February 20, 2013, denied the

petition.6 Appellant did not file an appeal.




3
   The order indicates service of guilty plea counsel, who allegedly was no
longer retained by Appellant. Appellant’s Brief at 17.
4
  Thus, this is not a case where an amount of restitution was set by the
Court after a full hearing. See e.g., Commonwealth v. Ortiz, 854 A.2d
1280, 1282 (Pa. Super. 2004).
5
  Appellant raised no issue regarding the order of restitution in his June 27,
2012 Motion for Correction of Illegal Sentence.
6
   The PCRA court determined that the mandatory minimum sentence of 42
Pa.C.S. § 9718(a)(1) did not apply to the specific crime to which Appellant
pled guilty, 18 Pa.C.S. § 3125(a)(8). PCRA Court Opinion, 2/20/13, at 2.
Appellant elected not to withdraw his plea because “five years was
nevertheless the bargained for sentence between the parties.” Id. at 4–5.

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      On December 2, 2013, after allegedly learning on November 18, 2013,

that his income was to be garnished due to the outstanding restitution,

Appellant filed a pro se Motion for Modification of Sentence challenging the

legality of his sentence relating only to the amount of restitution ordered.

He filed an amended motion on January 2, 2014. The trial court treated the

motion as a second petition pursuant to the PCRA, determined the

restitution issue was waived, and denied the petition as untimely on January

31, 2014. Appellant filed a Motion for Reconsideration of Court’s Ruling on

Restitution on February 12, 2014, which the trial court denied on February

21, 2014. This timely appeal followed on February 28, 2014. Both the trial

court and Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal, which we have

reordered for ease of disposition:

      1. Did the trial court err by violating 18 PA C.S.A. §1106(a)(3)—
      which allows for modification of restitution at any time—when it
      ruled [Appellant’s] motion filed December 2, 2013 and
      subsequent related motions as untimely filed?

      2. Did the trial court err in treating [Appellant’s] post-sentence
      motion to modify restitution as a second PCRA petition when in
      fact a post-sentence motion is the proper vehicle for this issue?

      3. Did the trial court err in finding [Appellant’s] claim that a
      post-sentence initial determination of a restitution amount (i.e.
      an illegal sentence) is a waivable matter?

      4. Did the trial court err by not ruling in a manner consistent
      with the previous finding of the state intermediate court which
      show [Appellant’s] actions to be timely, unwaivable, and


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      meritorious, and which also show the Commonwealth’s motion to
      modify restitution and the trial court’s granting of said motion,
      are violative of §1106?

      5. Did the trial court err by modifying Appellant’s sentence after
      his sentencing hearing when he no longer retained private
      counsel, was not made aware of Commonwealth’s motion to
      modify his sentence, and was not present to object to such
      modification?

Appellant’s Brief at 6.

      Initially, we must determine whether this matter is properly before us.

We begin by addressing the first four issues together, as they are all related

to   the   trial court’s ability to   entertain Appellant’s motion and our

consideration of whether the trial court correctly determined Appellant’s

Motion for Modification of Sentence to be an untimely second PCRA petition

in which the restitution issue raised was waived. We conclude that the trial

court erred.

      In Commonwealth v. Stradley, 50 A.3d 769 (Pa. Super. 2012), we

addressed the propriety of a restitution award entered following the

defendant’s guilty plea to driving under the influence of alcohol. Therein, at

sentencing, the appellant was ordered to pay $7,900.00 in restitution for

property damage resulting from a motor vehicle accident.      He did not file

post-sentence motions or a direct appeal. Nearly fourteen months after the

judgment of sentence, the appellant filed a Motion to Vacate Restitution

Order, which the trial court dismissed as an untimely motion to modify




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sentence.   On appeal to this Court, we first determined whether the trial

court had jurisdiction to address Appellant’s motion.

      We noted in Stradley that “[i]n the context of criminal proceedings,

an order of ‘restitution is not simply an award of damages, but, rather, [it is]

a sentence.’” Stradley, 50 A.3d at 771 (quoting Commonwealth v. C.L.,

963 A.2d 489, 494 (Pa. Super. 2008)).        Moreover, appeal of a restitution

order challenges the legality of sentencing. Stradley, 50 A.3d at 772. In

addressing the common pleas court’s jurisdiction to entertain the motion to

vacate restitution, we stated as follows:

             Section 1106 of the Crimes Code, which governs
      restitution for injuries sustained to person or property, provides
      in relevant 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 and the
            probation section of the county or other agent
            designated by the county commissioners of the
            county with the approval of the president judge to
            collect restitution, 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. § 1106(c)(3).       This provision has been
      interpreted by our Court to permit a defendant to seek a
      modification or amendment of the restitution order at any
      time directly from the trial court. See Commonwealth v.
      Mitsdarfer, 837 A.2d 1203 (Pa. Super. 2003) (holding that
      proper remedy for defendant requesting a reduction in the
      amount of restitution, entered following no contest plea to
      unauthorized use of an automobile, eleven months after


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     judgment of sentence was entered, was through trial court,
     pursuant to 18 Pa.C.S. § 1106, and not PCRA; since statute
     afforded trial court authority to amend or alter restitution
     order at any time, defendant was not time-barred from
     filing an appropriate motion with the trial court).

Stradley, 50 A.3d at 772 (emphasis added).        Thus, we determined that

despite the fact that Mr. Stradley filed his motion to vacate restitution

fourteen months after judgment of sentence was entered, the trial court

erred in finding the appellant’s motion was untimely. Id.

     The lower court in the case sub judice, despite Appellant’s assertion of

the applicability of Stradley and Commonwealth v. Mitsdarfer, 837 A.2d

1203 (Pa. Super. 2003), cited therein, without any reference to the

applicability of 18 Pa.C.S. §1106, and without any asserted basis to do so,

treated Appellant’s motion as a PCRA petition.         Based on the above

precedent, we conclude the court erred.

     That, however, does not end the inquiry regarding the trial court’s

jurisdiction to entertain Appellant’s challenge to the restitution order.   As

noted above, the restitution statute, section 1106 of the Crimes Code,

“permit[s] a defendant to seek a modification or amendment of the

restitution order at any time directly from the trial court.”   Stradley, 50

A.3d at 772 (emphasis added) (citing Mitsdarfer, 837 A.2d at 1205).

Accord Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009) (18

Pa.C.S. §1106 indicates legislative intent that courts have jurisdiction to




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modify restitution orders at any time without regard to when the

information should have been presented for consideration, provided court

states its reasons for the record); Commonwealth v. McKee, 38 A.3d 879

(Pa. Super. 2012) (trial court had jurisdiction to modify restitution order

where the defendant challenged it nearly two year after order’s imposition).

      Recently, in Commonwealth v. Gentry, 101 A.3d 813 (Pa. Super.

2014), this Court reiterated that our case law establishes that 18 Pa.C.S.

1106 “creates an independent cause of action for a defendant to seek a

modification of an existing restitution order.” Id. at 816. Citing Stradley

and Mitsdarfer, we acknowledged that a defendant could seek modification

or amendment of restitution at any time directly from the trial court. Id.

      Moreover, the fact that Appellant herein previously filed a Motion for

Correction of Illegal Sentence assailing the imposition of the mandatory

minimum sentence without challenging the order of restitution does not

result in waiver.     In McKee, the trial court imposed a sentence of

imprisonment followed by a period of probation, ordered immediate parole,

and imposed a $500.00 order of restitution. The defendant filed an appeal

from the judgment of sentence based on insufficient evidence, and the

defendant’s judgment of sentence was reversed.            When the defendant

sought return of the restitution previously paid, by filing a Petition for Return

of Restitution and Court Costs, the trial court declined on the basis it lacked




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jurisdiction.    While the focus of that decision was on the trial court’s

jurisdiction, which we ultimately ruled was not lost, we did not determine

that Mr. McKee’s failure to assail the restitution order in his direct appeal

resulted in a waiver of his motion seeking reimbursement of restitution two

years later. As we have noted in a multitude of cases, cited supra, and as

we emphasized herein based on our jurisdictional analysis, the “broad

language” of Section 1106 indicating that “courts have jurisdiction to modify

restitution orders at any time without regard to when information should

have been present for consideration” compels our conclusion that waiver is

not appropriate herein. McKee, 38 A.3d at 882 (emphasis in original). We

conclude, pursuant to 18 Pa.C.S. § 1106, that Appellant’s motion is not

untimely, it is not waived, and we are satisfied that we have jurisdiction to

address it.7

      Thus, we address the merits.        “Questions regarding the court’s

authority with respect to ordering restitution implicate the legality of a

sentence.       Challenges to the legality of a sentence are not waivable.”

Commonwealth v. Burwell, 58 A.3d 790, 792–793 (Pa. Super. 2012)

(citations omitted). Further, issues related to the legality of a sentence are

questions of law; thus, our standard of review is de novo, and our scope of


7
   In light of the fact that the lower court erred in considering Appellant’s
motion as a PCRA petition, it goes without saying that we did not utilize
waiver and jurisdictional concepts pertinent to the PCRA, as did the trial
court.

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review is plenary. Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super.

2014).

       Our recent decision in Gentry, 101 A.3d 813, which was filed

subsequent to the filing of Appellant’s brief and the trial court’s Rule 1925

opinion in this case, provides guidance. In Gentry, the appellant pled guilty

to possession with intent to deliver a controlled substance and receiving

stolen property on August 6, 2009.            Pursuant to a negotiated plea

agreement, the trial court imposed an aggregate sentence of ten to twenty-

three months of imprisonment followed by two years of probation.             At

sentencing, the Commonwealth requested that the trial court set restitution

at $1.00 to be refined by the York County Adult Probation Office. 8 The trial

court ordered that “restitution is in favor of the victim at one dollar subject

to review and adjustment.” Id. at 815. Appellant did not file a direct appeal

with this Court.




8
    The restitution statute provides that restitution may be imposed:

       either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a
       condition of probation, 42 Pa.C.S. § 9754. When imposed as a
       sentence, the injury to property or person for which restitution is
       ordered must directly result from the crime. However, when
       restitution is ordered as a condition of probation, the sentencing
       court is accorded the latitude to fashion probationary conditions
       designed to rehabilitate the defendant and provide some
       measure of redress to the victim.

Commonwealth v. Hall, 80 A.3d 1204, 1215 (Pa. 2013).

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      The   Gentry       record   contained   a   probation   document   entitled,

“Restitution,” which was filed nearly six months after the judgment of

sentence, on January 22, 2010.            It contained handwritten notations

indicating, inter alia, a restitution amount of $49,000.00. Three years later,

on February 20, 2013, the probation office filed a violation report based on

the appellant’s failure to pay his court fees, costs, and restitution. The trial

court held a hearing, the appellant admitted the violation, and agreed with

the probation office’s recommended sentence.          As a result, the trial court

revoked the appellant’s probation and imposed a new sentence of four years

of probation. Appellant did not file a motion for reconsideration of sentence

or a notice of appeal.

      On June 11, 2013, the appellant filed a “Motion for Restitution to be

Discharged.”   The trial court conducted a hearing on December 17, 2013,

reduced the amount of restitution, but dismissed the motion as untimely.

Appellant then filed a notice of appeal. On appeal, we concluded that the

initial restitution order was illegal and thus, invalid, and we remanded for

reconsideration of whether restitution was an appropriate remedy.

      In pertinent part, the restitution statute provides as follows:

      § 1106. Restitution for injuries to person or property

      (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


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     resulting from the crime, the offender shall be sentenced to
     make restitution in addition to the punishment prescribed
     therefor.

                                   * * *

     (c) Mandatory restitution.--

                                  * * *

       (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 as
          presented to the district attorney in accordance with
          paragraph (4) and such other matters as it deems
          appropriate.

          (ii) May order restitution in a lump sum, by monthly
          installments or according to such other schedule as it
          deems just.

          (iii) Shall not order incarceration of a defendant for
          failure to pay restitution if the failure results from
          the offender’s inability to pay.

          (iv) Shall consider any other preexisting orders
          imposed on the defendant, including, but not limited
          to, orders imposed under this title or any other title.

       (3) The court may, at any time or upon the
       recommendation of the district attorney that is based on
       information received from the victim and the probation
       section of the county or other agent designated by the
       county commissioners of the county with the approval of
       the president judge to collect restitution, 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


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18 Pa.C.S. § 1106 (emphasis added).

      In Gentry, at sentencing, the trial court imposed a restitution order of

$1.00 as an interim value subject to review and adjustment at a later date.

We determined that this valuation was not permitted under Section 1106 or

relevant case law. Referring to Section 1106, we noted that the plain text of

the statute required the trial court to specify the amount of restitution at the

time of the original sentencing as well as a method of payment. 18 Pa.C.S.

§ 1106(c)(2).    We concluded that the original $1.00 restitution order was

illegal; it was merely an interim value because restitution had not been

determined at the sentencing hearing, and further the trial court was

delegating determination of restitution to the probation office, which was

impermissible.

      In the present case, at the sentencing hearing, the trial court

stated, “I have nothing on restitution. Go ahead.” N.T., 4/28/09, at 4. In

response, the Commonwealth advised as follows:

             There has been restitution requested that has come in
      since the PSI was prepared. I’ve discussed this with [defense
      counsel]. What I would propose to do is review that information.
      I was going to ask for some today; but since you have not had
      the benefit of looking at it, what I would propose to do is review
      that information to see what is I believe recoverable and what is
      not. I will then file a motion to modify related specifically to
      restitution within ten days of today’s date, and I will share that
      information with [defense counsel] prior to the filing.

           THE COURT:      I will order restitution generally
      without a specific amount with the understanding that you


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        will file a motion to modify. We will either have a hearing or an
        agreed amount of restitution set.

Id. (emphasis added).      The trial court then imposed sentence and added,

“Restitution is ordered to be determined at a hearing to be scheduled.” Id.

at 6.    As noted supra, on May 12, 2009, after the Commonwealth filed a

Motion to Modify Restitution, the trial court “directed that the sentence of

April 28, 2009, be modified to include restitution . . . . to [the] mother of the

victim, in the total amount of $2,598.14. Order, 5/12/09. Contrary to the

trial court’s representation at sentencing, the court did not hold a hearing

nor was there evidence of “an agreed amount.” See N.T., 4/28/09, at 4.

        Much like the $1.00 order in Gentry, the initial order of restitution

here, in that it failed to indicate a specific amount, “was itself illegal,” and

thus, “there was no valid restitution for the trial court to amend” on May 12,

2009.     Gentry, 101 A.3d at 819.      As we noted in Commonwealth v.

Dinoia, 801 A.2d 1254 (Pa. Super. 2002):

        Although the statute provides for amendment or modification of
        restitution “at any time,” 18 Pa.C.S.A. § 1106(c)(3), the
        modification refers to an order “made pursuant to paragraph
        (2)...” Id. Thus, the statute mandates an initial determination
        of the amount of restitution at sentencing. This provides the
        defendant with certainty as to his sentence, and at the same
        time allows for subsequent modification, if necessary.

Ortiz, 854 A.2d at 1283.

        We turn to the question of remedy.        We do not know what the

Commonwealth would suggest as a remedy, as it wholly failed to file a brief


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in this matter.   Appellant suggests “that a new sentence be forged sans

restitution.”   Appellant’s Brief at 20.   Once again, we find guidance in

Gentry, where this Court determined that “the appropriate remedy is for the

trial court to have an opportunity to impose a new restitution order.”

Gentry, 101 A.3d at 819. Thus, as in Gentry, on remand, the trial court

shall vacate the restitution order and conduct a new sentencing hearing,

limited to the issue of restitution consistent with 18 Pa.C.S. § 1106 and our

case law.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2015




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