J-S46043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANTHONY MISTKOWSKI                         :
                                               :
                      Appellant                :   No. 1667 MDA 2016

               Appeal from the Order Entered September 6, 2016
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0004395-2013


BEFORE:        BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 16, 2017

        Appellant, Anthony Mistkowski, appeals from the order entered on

September 6, 2016, in the Court of Common Pleas of Luzerne County

denying his motion to vacate the court’s earlier order of December 11, 2014,

which had granted the Commonwealth’s motion to modify Mistkowski’s

criminal sentence by including an award of restitution. We affirm the order

of the court, albeit on different grounds.

        On October 6, 2014, Mistkowski pled guilty to third-degree felony

receiving stolen property for his involvement with an $18,000.00 motorcycle

stolen from a garage. As part of the plea, Mistkowski agreed to pay costs in

exchange for the withdrawal of other charges and the Commonwealth’s


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*
    Former Justice specially assigned to the Superior Court.
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agreement to a sentence of five years’ probation. The plea did not address

restitution.

      Sentencing commenced on the same date. During the proceeding, the

court asked whether Mistkowski owed restitution, to which counsel for both

Mistkowski and the Commonwealth mistakenly responded that restitution

was not required because the property had been recovered.         Trial Court

Opinion, filed 12/22/16 at 1. In fact, the motorcycle had been destroyed.

Accordingly, the court imposed a sentence of five years’ probation consistent

with the terms of the plea agreement.

      On December 11, 2014, the Commonwealth filed a motion to modify

the sentence in which it requested restitution for the first time. The motion

advised that defense counsel agreed with the motion and would not oppose

it. The court granted the motion on the same date and entered an order of

restitution in the amount of $18,000.00.

      On April 18, 2016, Mistkowski filed a motion to vacate the order

granting restitution as having resulted in an illegal sentence.   Specifically,

Mistkowski argued that the court lacked jurisdiction to grant the motion

seeking restitution for the first time where the Commonwealth neither

satisfied its statutory duty to recommend restitution at or prior to the time




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of sentencing, see 18 Pa.C.S. § 1106(c)(4),1 nor filed the motion to modify

sentence within 10 days after judgment of sentence, as is required under
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1
    Section 1106, Restitution for injuries to person or property, provides

in relevant part:

       (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.

       ***

       (c) Mandatory restitution.--

       (1)    The court shall order full restitution:

       ***

       (2)    At the time of sentencing the court shall specify the
              amount and method of restitution.
       ***

       (3)    The court may, at any time . . . 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.

       (4)    (i) It shall be the responsibility of the district attorneys of
              the respective counties to make a recommendation to the
              court at or prior to the time of sentencing as to the
              amount of restitution to be ordered. This recommendation
              shall be based upon information solicited by the district
              attorney and received from the victim.
(Footnote Continued Next Page)


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Pa.R.Crim.P. 721(b)(1) (providing Commonwealth shall file a motion for

modification of sentence no later than 10 days after imposition of sentence).

The court convened a hearing on May 18, 2016, and took the matter under

advisement.     On September 6, 2016, the court entered its order denying

Mistkowski’s request to vacate the order.

      Herein, Mistkowski contends that the sentencing court erred in denying

his motion to vacate an order for which it lacked jurisdiction to grant in the

first place. Both the Commonwealth and sentencing court now agree with

Mistkowski’s appellate position that the order granting the Commonwealth’s

motion to add restitution to Mistkowski’s sentence must be vacated for

jurisdictional reasons.      Disagreement between the parties, however, arises

with respect to whether this Court must reinstate the original sentencing

order or remand the matter for resentencing.
                       _______________________
(Footnote Continued)


             (ii) Where the district attorney has solicited information
             from the victims as provided in subparagraph (i) and has
             received no response, the district attorney shall, based on
             other available information, make a recommendation to
             the court for restitution.

             (iii) The district attorney may, as appropriate, recommend
             to the court that the restitution order be altered or
             amended as provided in paragraph (3).

             ****

18 Pa.C.S.A. § 1106(1), (2), (3), and (4)(i),(ii), and (iii).




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       Mistkowski argues for reinstatement, as the original sentencing order

containing no restitution was lawful as entered, such that the court’s

sentencing scheme will not be altered by removal of the belated award of

restitution made in contravention of Section 1106(c).    The Commonwealth

counters that the court’s sentencing order should be vacated and the case

remanded for resentencing because the parties mistakenly informed the trial

court at sentencing that the stolen property was returned, obviating the

need for restitution.

       Before we may address the merits of the appeal as presented,

however, we are compelled to examine, sua sponte, whether Mistkowski’s

April 18, 2016, motion to vacate the December 11, 2014, order modifying

his sentence was untimely, as this question implicates our jurisdiction. 2 The

record establishes that the trial court imposed judgment of sentence on

October 6, 2014, and Mistkowski filed no direct appeal.        Therefore, his

judgment of sentence became final on November 5, 2014.3 Consequently,
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2
  Even where neither party nor the court has addressed the matter, it is
well-settled that we may raise the question of timeliness of a motion
implicating the jurisdiction of our Court. See, e.g., Commonwealth v.
Gandy, 38 A.3d 899 (Pa.Super. 2012) (holding this Court may sua sponte
address timeliness of PCRA petition, as question implicates jurisdiction of
court).
3
  Where a defendant fails to file a direct appeal from his conviction, his
judgment of sentence becomes final thirty days after imposition of the
sentence. Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super.
2000).




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although Mistkowski’s April 18, 2016, motion to vacate the court’s December

11, 2014, order modifying his sentence for want of jurisdiction raised a

meritorious claim, the trial court was required to review the motion under

the rubric of the Post Conviction Relief Act, 42 Pa.C.S.A §§ 9541-9546. See

42 Pa.C.S.A. § 9542; Commonwealth v. Fowler, 930 A.2d 586, 591

(Pa.Super. 2007) (recognizing courts are to construe as PCRA petitions all

motions a defendant files after his judgment of sentence has become final);

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002)

(“[T]he [PCRA] provides the sole means for obtaining collateral review, and

… any petition filed after the judgment of sentence becomes final will be

treated as a PCRA petition.”).

       The trial court, however, failed to apply the PCRA to Mistkowski’s

motion to vacate and, instead, assessed the filing independent of the PCRA

and its rules pertaining to issues of timeliness and the right to counsel.4

Mistkowski was represented by counsel at all times during the PCRA phase of

his case, such that we discern no need to remand for the appointment of

counsel. We inquire, then, into the timeliness of Mistkowski’s motion as a

PCRA petition.
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4
  A first-time PCRA petitioner has a rule-based right   to counsel throughout
the post-conviction proceedings, including any appeal   from disposition of the
PCRA petition. Commonwealth v. Figueroa, 29             A.3d 1177 (Pa.Super.
2011). See also Commonwealth v. White, 871              A.2d 1291 (Pa.Super.
2005).




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       The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013).                A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

       Therefore, Mistkowski’s counseled motion, which we construe as a

collateral challenge to the legality of his modified sentence, failed to meet

the timeliness requirements applicable to a PCRA petition. 5        Moreover,

neither his motion to vacate nor his counseled appeal invoked any of the

three exceptions to the PCRA’s one-year time-bar.        Accordingly, we are

constrained to affirm the order denying Appellant’s motion to vacate, albeit

on different grounds.

       Order is AFFIRMED.




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5
  Although an issue relating to the legality of a sentence cannot be waived, it
nevertheless must be presented in a timely PCRA petition. Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is
always subject to review within the PCRA, [such a claim] must still first
satisfy the PCRA's time limits or one of the exceptions thereto.”).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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