J-S53045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LOUIS ANGEL GONZALEZ,                      :
                                               :
                       Appellant               :   No. 1337 EDA 2019

       Appeal from the Judgment of Sentence Entered February 19, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0003907-2018


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 13, 2019

        Appellant Louis Angel Gonzalez appeals from the judgment of sentence

imposed following his guilty plea to receiving stolen property. 1       Appellant

argues that the restitution portion of his sentence is illegal.        We vacate

Appellant’s sentence and remand for resentencing.

        The trial court opinion set forth the relevant facts of this appeal as

follows.

        [Appellant’s] conviction stemmed from an incident that occurred
        on or about August 17, 2018 at the BB&T Bank located at 850
        Commons Drive, West Sadsbury Township. . . . Approximately
        [$2,755.88] was taken from the bank when [Appellant] cashed a
        computer-generated counterfeit check, made payable to
        [Appellant] from a compromised account.

Trial Ct. Op., 6/28/19, at 2.


____________________________________________


1   18 Pa.C.S. § 3925(a).
J-S53045-19



        On February 19, 2019, Appellant executed a written guilty plea colloquy

for the offense of receiving stolen property.     In relevant part, the written

colloquy indicated that the Commonwealth agreed to a sentence of time

served to eighteen months’ imprisonment.             The colloquy included a

handwritten notation that restitution was “payable per judge’s order not to

exceed $2,755.88.” Written Colloquy, 2/19/19, at 3.         The Commonwealth

further agreed to withdraw all remaining charges in exchange for Appellant’s

plea.

        Also on February 19, 2019, the trial court conducted an oral colloquy.

During the oral colloquy, Appellant’s counsel clarified the issue surrounding

the imposition of restitution:

        THE COURT: Now, it says restitution payable per judge’s order.
        Does that mean I have to have a hearing to determine the amount
        of the restitution?

        [Appellant’s Counsel]: No, your Honor. We’re just asking you to
        make a determination if [Appellant] owes it or not. And then
        based on that decision, we can decide what we have to do. We’re
        not looking for a restitution hearing.

N.T., 2/19/19, at 19.      Thereafter, Appellant’s counsel made the following

argument opposing the imposition of restitution:

        I believe this criminal incident happened August of 2018. At that
        point, Commonwealth vs. Veon[, 150 A.3d 435 (Pa. 2016),]
        was the prevailing law in the land, saying that restitution could
        not be ordered to a company. In this case, a bank would fit that
        bill.

        And just because they have now fixed that with legislation in
        October of 2018 doesn’t rectify the fact that it was the prevailing


                                       -2-
J-S53045-19


       law.[2] [I] think it’s ex post facto, and I would ask that you not
       order it, please, your Honor.

Id. at 25-26.

       At the conclusion of the oral colloquy, the trial court accepted Appellant’s

negotiated guilty plea. The trial court imposed the agreed-upon sentence of

time served to eighteen months’ imprisonment. The trial court also ordered

Appellant to pay $2,755.88 in restitution to BB&T Bank. In a separate order

also entered on February 19, 2019, the trial court granted Appellant’s

immediate release on parole.

       The Court of Common Pleas docket entries do not indicate that Appellant

filed a post-sentence motion with the clerk of courts.3           The trial court,

however, entered an order denying a post-sentence motion on March 29,

2019. In its order, the trial court repeated its conclusion from the sentencing

hearing that “BB&T Bank does qualify as a person entitled to restitution,”

pursuant to Section 1106.          Order, 3/29/19.   The trial court subsequently
____________________________________________


2 Section 1106 of the Crimes Code governs the imposition of restitution.
Effective October 24, 2018, the Pennsylvania General Assembly amended the
statute to reflect that a “business entity” could be a “victim” entitled to
restitution. See 18 Pa.C.S. § 1106(h). We emphasize that “this Court has
already held that these specific amendments to [Section] 1106 should not be
effective in criminal cases that began before the effective date of the
legislation. . . .” Commonwealth v. Hunt, ___ A.3d ___, 2019 PA Super
296, 2019 WL 4783495, *3 (Pa. Super. filed Oct. 1, 2019) (citing
Commonwealth v. Tanner, 205 A.3d 388, 396 n.7 (Pa. Super. 2019)).

3 Appellant claims that he filed his post-sentence motion, but it “was lost by
all parties in the matter, with no record of the date it was submitted.”
Appellant’s Brief at 5 n.1. The Commonwealth does not dispute Appellant’s
contention. See Commonwealth’s Brief at 2-3.



                                           -3-
J-S53045-19



entered an order to clarify that Appellant timely submitted a post-sentence

motion “to chambers only within 10 days of Appellant’s guilty plea and

sentence on February 19, 2019.” Order, 5/10/19 (footnote omitted). The

trial court’s order included a copy of Appellant’s post-sentence motion as an

attachment.

       Appellant filed a notice of appeal on April 26, 2019.4 The trial court

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, which Appellant timely filed on May 13, 2019. The

____________________________________________


4 If a defendant files a timely post-sentence motion, the notice of appeal must
be filed within thirty days of the entry of the order deciding the motion.
Pa.R.Crim.P. 720(A)(2)(a). Absent a timely post-sentence motion, the notice
of appeal shall be filed within thirty days of imposition of sentence.
Pa.R.Crim.P. 720(A)(3). Here, the record indicates that Appellant did not
timely file a post-sentence motion with the clerk of courts.                    See
Commonwealth v. Laskaris, 561 A.2d 16, 19 (Pa. Super. 1989) (plurality)
(explaining that “[d]ocuments in criminal matters must be filed with the Clerk
of Courts, as required by 42 Pa.C.S.A. § 2756(a)(1)”); see also
Commonwealth v. Tedesco, 550 A.2d 796, 798 (Pa. Super. 1988) (stating
that even if local custom requires a copy of a motion to be filed with the trial
judge, the original must still be filed with the clerk of courts in timely fashion).
Here, however, the record reveals that (1) Appellant raised his challenge to
the imposition of restitution at the sentencing hearing; (2) Appellant served a
copy of the post-sentence motion to the trial judge within ten days of the
sentencing hearing; (3) the trial court considered the motion to be timely
submitted and addressed it on the merits; (4) Appellant filed a notice of appeal
within thirty days of the order deciding the motion; and (5) the trial court
subsequently entered an order to clarify the procedural history of the matter,
which included a copy of the post-sentence motion as an attachment. Under
the narrow circumstances of this case, we will engage in a review of the merits
of Appellant’s appeal. See Tedesco, 550 A.2d at 798 (reviewing the merits
of the appeal, even though the defendant did not properly file his post-verdict
motion with the clerk of court within ten days of sentencing, where the
defendant presented the motion to the trial judge in chambers and the judge
characterized the motion as “timely”).

                                           -4-
J-S53045-19



trial court filed a responsive opinion, reiterating that BB&T Bank qualifies as a

“person” entitled to restitution under Section 1106. See Trial Ct. Op. at 7.

      Appellant now raises two questions for our review:

      [1.] Was the order for restitution unconstitutional pursuant to the
      Pennsylvania Supreme Court’s holding in Commonwealth v.
      Veon, 150 A.3d 435 (Pa. 2016)?

      [2.] Does the restitution requirement imposed by judgment of
      sentence constitute ex post facto implementation of 18 Pa.C.S. §
      1106?

Appellant’s Brief at 4.

      In his first issue, Appellant contends that he committed his offense on

August 16, 2018, and the version of Section 1106 in effect on that date

governs the propriety of restitution in this case. Id. at 9. Appellant insists

that the Veon Court interpreted the word “victim” in the prior version of

Section 1106 to mean “individuals” or “human beings,” but not business

entities. Id. at 24. Appellant acknowledges that our legislature subsequently

amended Section 1106, expanding the definition of victim to include business

entities. Id. “This amendment, however, took effect on October 24, 2018,

months after [Appellant’s] offense occurred under the old statute.”          Id.

Appellant concludes that the trial court erred by ordering him to pay restitution

to the bank because the trial court’s order violated the holding in Veon. Id.

at 18-19.

      The relevant standard and scope of review are as follows:

      We note that in the context of criminal proceedings, an order of
      restitution is not simply an award of damages, but, rather, a


                                      -5-
J-S53045-19


      sentence. As such, an appeal from an order of restitution based
      upon a claim that a restitution order is unsupported by the record
      challenges the legality, rather than the discretionary aspects, of
      sentencing. Accordingly, the determination as to whether the trial
      court imposed an illegal sentence is a question of law; our
      standard of review in cases dealing with questions of law is
      plenary. This case will also necessarily call upon us to engage in
      statutory construction, which similarly presents a pure question of
      law and also implicates the legality of [the] sentence. Thus, our
      standard of review is de novo and our scope of review is plenary.

Hunt, ___ A.3d at ___, 2019 WL 4783495 at *2 (citations and internal

alterations omitted).

      The version of Section 1106 in effect at the time of Appellant’s offenses

provided, in pertinent part, as follows:

      (a) General rule.―Upon conviction for any crime wherein
      property has been stolen, converted or otherwise unlawfully
      obtained, . . . 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.

                                  *     *    *

      (c) 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. . . .

                  (ii) If restitution to more than one person is set at the
                  same time, the court shall set priorities of payment.
                  However, when establishing priorities, the court shall
                  order payment in the following order:

                        (A) The victim.

                        (B) The Crime Victim’s Compensation Board.


                                      -6-
J-S53045-19



                        (C) Any other government agency which has
                        provided reimbursement to the victim as a
                        result of the defendant’s criminal conduct.

                        (D) Any insurance company which has provided
                        reimbursement to the victim as a result of the
                        defendant’s criminal conduct.

                                  *    *    *

      (h) Definitions.―As used in this section, the following words and
      phrases shall have the meanings given to them in this subsection:

                                  *    *    *

      “Victim.” As defined in section 479.1 of the act of April 9, 1929
      (P.L. 177, No. 175), known as The Administrative Code of 1929.
      The term includes the Crime Victim’s Compensation Fund if
      compensation has been paid by the Crime Victim’s Compensation
      Fund to the victim and any insurance company that has
      compensated the victim for loss under an insurance contract.

18 Pa.C.S. § 1106(a), (c), and (h) (repealed Oct. 24, 2018, P.L. 891, No. 145,

§ 1, effective Jan. 31, 2005) (internal footnote omitted).

      Regarding the statutory reference in the definitions section, “Section

479.1, formerly codified at 71 P.S. § 180–9.1, since has been recodified in the

Crime Victims Act, 18 P.S. §§ 11.101, et seq. (the ‘CVA’).” Veon, 150 A.3d

at 449 (citation omitted). The CVA defines “victim” as follows:

      (1) A direct victim.

      (2) A parent or legal guardian of a child who is a direct victim,
      except when the parent or legal guardian of the child is the alleged
      offender.

      (3) A minor child who is a material witness to any of the following
      crimes and offenses under 18 Pa.C.S. (relating to crimes and



                                      -7-
J-S53045-19


      offenses) committed or attempted against a member of the child’s
      family:

            Chapter 25 (relating to criminal homicide).

            Section 2702 (relating to aggravated assault).

            Section 3121 (relating to rape).

      (4) A family member of a homicide victim, including stepbrothers
      or stepsisters, stepchildren, stepparents or a fiance, one of whom
      is to be identified to receive communication as provided for in this
      act, except where the family member is the alleged offender.

18 P.S. § 11.103. “A ‘[d]irect victim’ is defined by the same section as ‘[a]n

individual against whom a crime has been committed or attempted and who

as a direct result of the criminal act or attempt suffers physical or mental

injury, death or the loss of earnings under this act.’” Veon, 150 A.3d at

449 (emphases in original).

      In Veon, our Supreme Court’s review of the relevant statutes,

legislative histories, and prior case law led to its holding that a government

agency,   the   Pennsylvania   Department      of   Community   and   Economic

Development, was “neither a ‘direct victim’ nor a reimbursable compensating

government agency under Section 1106.”          Id. at 455 (footnote omitted).

Importantly, the Supreme Court scrutinized the language in Section 11.103

and determined that it applied to human beings only:

      Notwithstanding any legislative expansion of the definition of
      “victim,” it is clear that the plain text of Section 11.103 still
      envisages “victims” as “persons” commonly understood.              A
      “victim” under Section 11.103 must be “a direct victim,” i.e., an
      “individual” who has suffered injury, death, or loss of earnings; or
      a “child,” “parent,” “guardian,” or “family member.”          Every
      relevant noun unequivocally describes a human being, not a

                                     -8-
J-S53045-19


        government agency, and nowhere else is there a relevant
        definition that persuades us to broaden the common
        understanding of these words.

Id. at 454.

        In light of the holding in Veon, this Court subsequently concluded that

        the inter-related definitions of “direct victim,” “individual,” and
        “natural person” pursuant to the pre-amendment version of
        [Section] 1106 do not include corporate entities. . . . Such a
        conclusion is necessitated by a plain reading of these statutes, and
        has the additional virtue of giving full weight to the Supreme
        Court’s discussion of these same provisions in Veon.

Hunt, ___ A.3d at ___, 2019 WL 4783495 at *7 (footnotes omitted and

emphasis added).

        Instantly, the trial court ordered Appellant to pay restitution to BB&T

Bank. Based upon this Court’s holding in Hunt, the definition of “victim” under

the pre-amendment version of Section 1106 does not include a corporate

entity such as BB&T Bank. Therefore, the restitution portion of Appellant’s

sentence is illegal, and we vacate that portion of Appellant’s judgment of

sentence. See Veon, 150 A.3d at 453; Hunt, ___ A.3d at ___, 2019 WL

4783495 at *7. Accordingly, we remand this case for resentencing consistent

with this decision.5

        Judgment of sentence vacated.            Case remanded with instructions.

Jurisdiction relinquished.




____________________________________________


5   Due to our disposition, we need not address Appellant’s second issue.

                                           -9-
J-S53045-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




                          - 10 -
