J-S09040-16


                                   2016 PA Super 29

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DAVID ZRNCIC

                            Appellant                 No. 764 MDA 2015


            Appeal from the Judgment of Sentence March 30, 2015
             in the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0002531-2008


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY JENKINS, J.:                           FILED FEBRUARY 09, 2016

        Michael David Zrncic (“Appellant”) appeals pro se from the judgment

of sentence entered in the Court of Common Pleas of Cumberland County on

March 30, 2015, following this Court’s January 29, 2015 remand. 1           We

vacate the judgment of sentence and remand the matter for further

proceedings consistent with this opinion.

        Between February 14 and April 15, 2008, Appellant had inappropriate

contact with a 15-year-old female student at the karate school he owned.2
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1
  Appellant purports to challenge the trial court’s April 10, 2015 denial of his
post-sentence motion for modification of the restitution imposed on March
30, 2015. Appellant actually appeals the restitution imposed, which is the
sentence, not the April 10, 2015 denial of his motion for modification of that
sentence. We have amended the caption to reflect the correct procedural
posture of this matter.
2
    Appellant also taught high school mathematics.
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This conduct included, inter alia, Appellant having the victim perform oral

sex on him.       Appellant was 31 years old at the time.      Police charged

Appellant with one count each of involuntary deviate sexual intercourse

(“IDSI”)3 and unlawful contact with a minor,4 two counts each of aggravated

indecent assault5 and corruption of minors,6 and three counts of indecent

assault.7 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.

        On January 8, 2009, Appellant entered into a negotiated guilty plea to

one consolidated count of aggravated indecent assault with application of a

five-year mandatory minimum sentence. At sentencing on April 28, 2009,

the Commonwealth requested, and the trial court entered, an order ordering

restitution generally, but without a specific amount, with the understanding

the Commonwealth would later file a motion to modify the sentence to




____________________________________________


3
    18 Pa.C.S. § 3123(a)(7).
4
    18 Pa.C.S. § 6318(a)(1).
5
    18 Pa.C.S. § 3125(a)(8).
6
    18 Pa.C.S. § 6301(a)(1).
7
    18 Pa.C.S. § 3126(a)(8).



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specify the amount of restitution owed.          Accordingly, Appellant’s sentence

ordered restitution to be determined at a yet-to-be scheduled hearing.

        The Commonwealth filed its Motion to Modify Restitution Pursuant to

18 Pa.C.S. § 1106(c)(3) (“Motion to Modify”) on May 11, 2009. On May 12,

2009, without conducting a hearing, the trial court modified Appellant’s

sentence to include restitution payable to the victim’s mother in the amount

of $2,598.14.8 The trial court order included a handwritten note that stated:

“If [Appellant] contests this order of restitution he should request a hearing

within 10 days of this date.”          Order, May 12, 2009.     Appellant did not

request a hearing, nor did he appeal 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 aggravated indecent assault, and

therefore his sentence was illegal.9 The trial court treated this motion as a

petition pursuant to the Post Conviction Relief Act (“PCRA”)10 and appointed

counsel, who filed an amended petition on November 30, 2012. The court

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8
   The court based this figure on the cost of a replacement computer,
unreimbursed karate lessons, and unreimbursed counselling sessions for the
victim. See Motion to Modify, p. 2.
9
  Appellant raised no issue regarding the restitution order in his June 27,
2012 Motion for Correction of Illegal Sentence.
10
     42 Pa.C.S. § 9541-9546.




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held a hearing on January 23, 2013, and denied the petition on February 20,

2013. Appellant did not appeal this denial.

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

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

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

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

He filed an amended motion on January 2, 2014. On January 31, 2014, the

trial court treated the motion as a second PCRA petition, determined the

restitution issue was waived, and denied the petition as untimely. Appellant

filed a Motion for Reconsideration of Court’s Ruling on Restitution on

February 12, 2014, which the court denied on February 21, 2014. Appellant

filed a timely notice of appeal on February 28, 2014.

      On January 29, 2015, this Court determined the trial court erred in

treating Appellant’s motion for modification as a PCRA petition and that the

court’s original sentence of restitution with the amount to be determined at

a future hearing was illegal. This Court reversed the trial court’s restitution

order and remanded, directing the trial court to conduct a new sentencing

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

and relevant Pennsylvania case law.

      The trial court conducted the new sentencing hearing on March 30,

2015, and ordered Appellant to pay restitution in the amount of $1,527.26




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to the Victims Compensation Assistance Program and $1,038.77 to the

victim.11   Appellant timely appealed.

       Appellant raises the following issues for our review:

       1. The trial court erred by assigning an initial amount of
       restitution through a post-sentence hearing.         Since the
       Commonwealth failed to adhere to their responsibilities
       delineated in § 1106(c)(3), a restitution amount was not
       determined at sentencing, and the statute does not allow for an
       amendment of restitution in such an instance. Thus the [c]ourt’s
       April 10, 2015 ruling was violative of § 1106.

       2. The trial court violated the Superior Court opinion filed
       January 29, 2015 which specifically states that any new
       restitution result must be compliant with § 1106.

       3. The trial court erred by assigning restitution, as it is violative
       of the general rule of § 1106. There was no damaged or altered
       property as a direct result of the conviction offense, and there
       was no personal injury as defined by this section.

       4. The trial court erred in denying [Appellant] appointed counsel
       during the sentencing phase of his trial, specifically during his
       restitution hearing on March 30, 2015 where it became apparent
       that [Appellant] would have to cross-examine a witness.

Appellant’s Brief, p. 6.

       Initially, this Court addressed Appellant’s first two claims in its January

29, 2015 memorandum decision that remanded the matter to the trial court

to conduct a new sentencing hearing. See Commonwealth v. Zrncic, 420

MDA 2014 (unpublished memorandum), filed January 29, 2015, pp. 6-16

(determining proper remedy where trial court did not set definite restitution
____________________________________________


11
   The trial court ordered Appellant to pay $150.00 per month towards
restitution, fines, and costs.



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amount at sentencing was to vacate trial court’s restitution order and

remand for new sentencing hearing pursuant to 18 Pa.C.S. § 1106 and

relevant case law).     We need not address these claims anew.             See

Commonwealth v. Starr, 664 A.2d 1326, 1331-32 (Pa.1995) (noting the

“law of the case” doctrine embodies the concept that a court involved in the

later phases of a litigated matter should not reopen questions decided by

another judge of that same court or by a higher court in the earlier phases

of the matter).

      We address Appellant’s fourth claim next, as it is dispositive.

Appellant argues he deserves a new sentencing hearing, as he was not

represented at the March 30, 2015 resentencing. See Appellant’s Brief, pp.

20-22. Appellant is correct.

      Appellant’s claim presents a question of pure law.       Accordingly, this

Court’s standard of review is de novo and our scope of review is plenary.

Commonwealth v. Williams, 84 A.3d 680, 684 (Pa.2014).

      “The right to counsel is enshrined in both the United States and

Pennsylvania Constitutions. See U.S. Const. Amend. VI; Pa. Const. Art. 1, §

9.” Commonwealth v. Smith, 69 A.3d 259, 265 (Pa.Super.2013). Over

fifty years ago, the Supreme Court of the United States conferred the right

to   counsel   upon   indigent   defendants   in   state   proceedings.     See

Commonwealth ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa.1966)

(citing Gideon v. Wainwright, 372 U.S. 335, 337, 83 S. Ct. 792, 793

(1963)).

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        Due process requires counsel be provided at all “critical stages”
        of a criminal prosecution. Coleman v. Alabama, 399 U.S. 1, 7,
        90 S.Ct. 1999 [] (1970). A “critical stage” is one in which the
        accused’s substantive rights may be affected. Commonwealth
        v. D’Amato, [] 856 A.2d 806, 821 ([Pa.]2004).

Commonwealth v. Wright, 961 A.2d 119, 133 (Pa.2008); see also

Cavell, 220 A.2d at 614 (“This rule applies whenever a critical stage is

reached, where rights may be preserved or lost.”). “A hearing on a guilty

plea or at the time of sentencing is a ‘critical stage’ in the proceedings

against the accused, at which the accused is entitled to be represented by

[c]ounsel.”     Cavell, 220 A.2d at 614; see also Smith, 69 A.3d at 265

(“[t]here is no disputing that there exists a constitutional right to counsel at

sentencing.” (citations omitted)).             Further, as this Court has explained,

“restitution is simply not an award of damages but, rather, a sentence.”

Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.Super.2007).

        Here, Appellant, an indigent, filed a Motion to Appoint Counsel for

Sentencing requesting the appointment of counsel following this Court’s

remand for a new sentencing hearing limited to the imposition of restitution.

The trial court denied Appellant’s request for counsel by order dated March

13, 2015,12 and later further explained the denial in open court as follows:


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12
     The trial court’s order reads:

              AND NOW, this 13th day of March, 2015, upon
        consideration of Defendant’s Motion to Appoint Counsel for
        Sentencing, despite the fact that it would be easier to acquiesce
(Footnote Continued Next Page)


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      I denied your request in my order of March 13, 2015, because,
      frankly, I don’t believe you’re entitled to have counsel for this
      proceeding.

N.T. 3/30/2015, p. 4.13         This was error.   The proceeding ordered by this

Court’s memorandum decision of January 29, 2015 was not simply a

“hearing”, as termed by the trial court, nor was it a 18 Pa.C.S. § 1106

hearing regarding already-imposed restitution.            The March 30, 2015

proceeding was a sentencing, albeit limited to restitution.         Accordingly,

Appellant was entitled to representation by counsel.        See Pleger, Cavell,

Wright, supra.

      The trial court is correct that it would have been easy to acquiesce to

Appellant’s request for counsel at the ordered resentencing on restitution.

See Order, 3/13/2015.           It also would have been proper.   The trial court

committed error by not appointing counsel at this critical stage. Accordingly,

we must vacate the restitution portion of Appellant’s sentence and remand

for another resentencing limited to the issue of restitution at which Appellant

                       _______________________
(Footnote Continued)

      in the request and be done with it, we are decidedly convinced
      that the appointment of counsel is neither required by law nor is
      it practically necessary for a hearing solely on the matter of
      restitution. Finding that the interests of justice do not require
      this appointment, Defendant’s motion for the appointment of
      counsel is DENIED.

Order, 3/13/2015.
13
    We note the trial court’s Pa.R.A.P. 1925(a) opinion for the instant appeal,
filed April 10, 2015, is silent on Appellant’s denial of counsel claim.




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has representation, if requested, or a full hearing, if he wishes to proceed

pro se.14

       Restitution portion of judgment of sentence vacated. Case remanded

for trial court to hold a new sentencing hearing limited to the question of

restitution. All other aspects of judgment of sentence affirmed. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




____________________________________________


14
   Because our determination on Appellant’s counsel claim is dispositive in
this matter and will result in a new sentencing hearing, we need not address
Appellant’s remaining claim regarding the restitution awarded at the March
30, 2015 resentencing.




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