J-A08023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
        Appellee

                        v.

JOHN MICHAEL PERZEL,

        Appellant                                   No. 1382 MDA 2014


                   Appeal from the PCRA Order July 16, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002589-2010


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 05, 2017

        This case is before us on remand from the Pennsylvania Supreme

Court. On August 31, 2011, Appellant, John Michael Perzel, pled guilty to

four counts of criminal conspiracy,1 two counts of restricted activities,2 and

two counts of theft by failure to make required disposition of funds.3,   4
                                                                              On


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 903.
2
    65 Pa.C.S. § 1103(a).
3
    18 Pa.C.S. § 3927(a).
4
   We note that there is some discrepancy between the parties’ briefs, the
trial court opinion, this Court’s earlier Memorandum, and the certified
record. In the briefs, the trial court opinion, and our earlier Memorandum, it
was stated that Appellant pled guilty at six counts: two counts each of
conspiracy, restricted activities, and theft. However, the record makes clear
that Appellant pled guilty at eight separate counts: 1, 10, 54, 55, 68, 69,
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March 21, 2012, the trial court sentenced Appellant to an aggregate term of

thirty to sixty months of incarceration, sixty months of probation, $30,000 in

fines, and $1,000,000 in restitution to the Commonwealth of Pennsylvania.

Appellant did not file a direct appeal.

        On March 21, 2013, Appellant filed a timely petition for relief pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The

PCRA court appointed counsel, and counsel filed an amended PCRA petition.

On July 16, 2014, the PCRA court denied Appellant’s amended petition, and

Appellant appealed to this Court.

        On appeal, Appellant averred that the trial court imposed an illegal

sentence of restitution to the Commonwealth because the Commonwealth

cannot be a victim for purposes of restitution.      He also claimed that trial

counsel was ineffective for failing to raise this issue at sentencing. 5 In an




70, and 77. Guilty Plea Agreement, 8/31/11, at 1-3; Guilty Plea Colloquy,
8/31/11, at 1; and N.T., Sentencing, 3/21/12, at 29-32. Counts 68, 69, 70,
and 77 were conspiracy charges. Thus, contrary to the briefs, the trial court
opinion, and our previously filed Memorandum, there were four counts of
conspiracy instead of two.
5
    The PCRA enumerates the issues that are cognizable under the Act:

        (i) A violation of the Constitution of this Commonwealth or the
        Constitution or laws of the United States which, in the
        circumstances of the particular case, so undermined the truth-
        determining process that no reliable adjudication of guilt or
        innocence could have taken place.

        (ii) Ineffective assistance of counsel which, in the circumstances
        of the particular case, so undermined the truth-determining


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opinion filed on May 4, 2015, this Court affirmed the order denying PCRA

relief. Commonwealth v. Perzel, 116 A.3d 670 (Pa. Super. 2015). In that

opinion, this Court concluded that the Commonwealth could be a direct

victim of a crime as defined in 18 Pa.C.S. § 1106 for purposes of restitution,

and we relied on Commonwealth v. Veon, 109 A.3d 754, 772 (Pa. Super.

2015) (“Veon I”). Perzel, 116 A.3d at 673. Appellant filed a petition for

reconsideration that we denied on June 16, 2015.

      On July 10, 2015, Appellant petitioned for allowance of appeal to the

Pennsylvania Supreme Court. In an order filed on November 4, 2015, the

Pennsylvania Supreme Court held Appellant’s petition in abeyance pending



      process that no reliable adjudication of guilt or innocence could
      have taken place.

      (iii) A plea of guilty unlawfully induced where the circumstances
      make it likely that the inducement caused the petitioner to plead
      guilty and the petitioner is innocent.

      (iv) The improper obstruction by government officials of the
      petitioner's right of appeal where a meritorious appealable issue
      existed and was properly preserved in the trial court.

      (v) Deleted.

      (vi) The unavailability at the time of trial of exculpatory evidence
      that has subsequently become available and would have
      changed the outcome of the trial if it had been introduced.

      (vii) The imposition of a sentence greater than the lawful
      maximum.

      (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).


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the disposition of Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016)

(“Veon II”).

      The Supreme Court filed its opinion in Veon II on November 22,

2016, and held, inter alia, that the Commonwealth cannot be considered a

direct victim or a reimbursable compensating government agency under 18

Pa.C.S. § 1106. Veon II, 150 A.3d at 455. Therefore, a restitution order

directing payment to the Commonwealth as the victim of a crime constitutes

an illegal sentence. Id. at 456.

      On February 9, 2017, the Pennsylvania Supreme Court granted

Appellant’s petition for allowance of appeal, vacated this Court’s earlier

decision, and remanded the instant case to our Court for reconsideration in

light of the holding in Veon II.   This matter is now ripe for disposition.

      As noted above, Appellant argues that his sentence of restitution to

the Commonwealth is illegal because the Commonwealth cannot be deemed

a victim under 18 Pa.C.S. § 1106 in this instance.       Additionally, Appellant

claims trial counsel was ineffective for failing to raise this issue at

sentencing. Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, we are

limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in



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the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

     For ease of disposition, we address Appellant’s claim of ineffective

assistance of counsel first.   When considering an allegation of ineffective

assistance of counsel, counsel is presumed to have provided effective

representation unless the PCRA petitioner pleads and proves that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable basis

for his or her conduct; and (3) Appellant was prejudiced by counsel’s action

or omission. Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa.

1987).   “In order to meet the prejudice prong of the ineffectiveness

standard, a defendant must show that there is a ‘reasonable probability that

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’”   Commonwealth v. Reed, 42 A.3d 314, 319 (Pa.

Super. 2012).    An allegation of ineffective assistance of counsel will fail if

the petitioner does not meet all three prongs.            Commonwealth v.

Williams, 863 A.2d 505, 513 (Pa. 2004).             “The burden of proving

ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d

997, 1018 (Pa. 2007).

     At the time of our original decision, this Court’s opinion in Veon I was

controlling and provided that the Commonwealth could be a victim for

purposes of restitution under 18 Pa.C.S. § 1106. Veon I, 109 A.3d at 772.

However, our Supreme Court subsequently reversed that decision. Veon II,



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150 A.3d at 455.     Nevertheless, it is well settled that counsel cannot be

deemed    ineffective   for   failing   to    predict   a   change   in   the   law.

Commonwealth v. Baumhammers, 92 A.3d 708, 729 (Pa. 2014).

Accordingly, we will not deem counsel ineffective in this regard.

      With respect to Appellant’s challenge to the legality of the restitution

order however, we are constrained to agree with Appellant. In the case at

bar, the Commonwealth is not a victim or a reimbursable compensating

government agency under 18 Pa.C.S. § 1106. Veon II, 150 A.3d at 455.

Thus, Appellant’s sentence of restitution to the Commonwealth in the

amount of $1,000,000 is illegal, and an illegal sentence is subject to

correction.   Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super.

2014); see also Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. Super.

2015) (a challenge to the legality of a sentence may be raised in a timely

filed PCRA petition) (citing 42 Pa.C.S. § 9542)).

      Additionally, we conclude that the Supreme Court’s decision in Veon

II may be applied retroactively because the Supreme Court did not

announce a new rule of law. Rather, the Supreme Court concluded that this

Court’s decision in Veon I was wrongly decided, and the Supreme Court

interpreted and applied 18 Pa.C.S. § 1106 concerning whether the

Commonwealth can be a victim.           See Commonwealth v. Concordia, 97

A.3d 366, 369 (Pa. Super. 2014) (stating that a first-time interpretation of a

statute is not a new rule of law and generally would apply retroactively)



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(citing Fiore v. White, 757 A.2d 842, 848 (Pa. 2000) (“[W]hen we have not

yet answered a specific question about the meaning of a statute, our initial

interpretation does not announce a new rule of law.”).

        Accordingly, while we do not disturb Appellant’s convictions, we vacate

Appellant’s entire judgment of sentence.        We vacate the sentence in its

entirety because vacating Appellant’s restitution sentence may disrupt the

trial court’s overall sentencing scheme of incarceration and fines imposed.

Commonwealth v. Hill, 140 A.3d 713, 718 (Pa. Super. 2016). Thus, we

remand for resentencing in toto.

        Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

        Judge Wecht did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/5/2017




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