J-S79029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
WILLIAM L. MESSICK                             :
                                               :
                Appellant                      :   No. 2075 EDA 2017

                   Appeal from the PCRA Order June 13, 2017
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0000667-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 03, 2018

        William L. Messick appeals from an order denying his motion to strike

his probation revocation sentence, treated as a petition filed pursuant to the

Post Conviction Relief Act (PCRA).1 After careful review, we reverse in part.

        On June 20, 2011, Messick entered a negotiated guilty plea to theft by

failing to make required disposition of funds (M-1), after he solicited a

$250,000 investment “loan” from the victim to fund a proposed development

in New Britain Township, Bucks County.2 Beginning in April 2010, a county

detective and New Britian Township police detective conducted an extensive

investigation into Messick’s questionable business practices that ultimately led


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1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 3927(a).
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to the Commonwealth charging Messick with various theft offenses for having

converted the victim’s funds to his own personal use.3 On August 22, 2011,4

the court held a guilty plea hearing and imposed the following sentence on the

record:

       On Commonwealth v. William L. Messick, 667 of 2011, it’s
       directed as follows: You’re to pay the costs of prosecution. You’re
       placed on probation for a period of five years, to be supervised by
       the Bucks County Probation and Parole Department. Conditions
       of that probation are that you pay restitution in the amount
       of $250,000 to [the victim,] Joseph Logan.

       In addition, I’ll direct that pursuant to the terms of the agreement
       [Messick] be permitted to travel outside of the Commonwealth of
       Pennsylvania in order to carry out business, with the anticipated
       purpose of securing sufficient financial resources to pay this
       restitution as soon as possible.

N.T. Guilty Plea Hearing, at 8/22/11, 5-6 (emphasis added).          At the plea

hearing, defense counsel noted that the parties agreed the restitution “would

be paid off during the period of the five[-]year probation.” Id. at 4.




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3 Messick was also originally charged with receiving stolen property, theft by
deception, deceptive business practices, dealing in proceeds of unlawful
activities. The Commonwealth, however, agreed to nolle pros these charges
in exchange for Messick’s negotiated guilty plea.

4 We note that on March 9, 2016, Pennsylvania Rule of Criminal Procedure
705.1 (Restitution) was adopted; the rule became effective July 1, 2016, after
Messick’s guilty plea sentence was entered. Under Rule 705.1(B)(6), a judge
is now required “[i]n any case in which restitution is imposed, . . . [to] state
in the sentencing order . . . whether the restitution has been imposed as a
part of the sentence and/or as a condition of probation.”




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       In January 2012, a Gagnon I5 hearing was held after Messick failed to

make his court-ordered restitution payments. Following the hearing, the court

found probable cause existed to show that Messick had failed to make the

restitution payments; as a result, he was ordered to make $500 payments for

January, February, and March 2012, and also directed to obtain legitimate

employment within 30 days of the hearing. Gagnon I Order, 1/5/12, at 2.

In September 2012, the Probation Office requested another probation

violation hearing be held after Messick again failed to pay restitution on his

2011 guilty plea sentence.          In January 2014, the court reset Messick’s

restitution payment plan to $1,000/month, effective February 10, 2014.

       In October 2016, the Adult Probation Officer/District Attorney of Bucks

County praecipied the trial court for another probation violation hearing,

alleging that Messick violated his probation by once again failing to make the

required restitution payments to the victim by his supervision maximum date.

On November 16, 2016, the parties entered into a stipulation noting the

following: Messick had violated the terms of his probation by failing to pay

his restitution in full by his supervision maximum date (8/22/16); no one had

opposed the stipulation; and restitution must be paid in full to close the case.

Stipulated Violation of Probation Agreement, 12/8/16, at 1. Messick signed

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5 Gagnon v. Scarpelli, 411 U.S. 778 (1973). A Gagnon I hearing is a pre-
revocation hearing where, based upon due process principles, a determination
is made regarding whether probable cause exists to believe that a probation
or parole violation has been committed. Commonwealth v. Ferguson, 761
A.2d 613 (Pa. Super. 2000).

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the stipulation, acknowledged the facts, waived his right to a formal probation

violation hearing, and agreed that he would be sentenced as follows:

       AND NOW, this 18th day of November, 2016, in view of the
       attached, it is hereby ordered and directed that William Messick
       be found in violation of probation pursuant to the attached
       stipulation, probation be revoked, and he be re[]sentenced to
       five (5) years[’] probation, with the following agreed[-]upon
       special conditions:

          1. Continue to pay restitution[;]

          2. Probation shall be non-reporting[; and]

          3. Case may close once restitution is paid in full with no
          further violations.

Id. at 2 (emphasis added). On November 18, 2016, the trial court entered

an order setting forth the same terms of Messick’s probation revocation

sentence as indicated in the parties’ Stipulated Violation of Probation

Agreement.

       On February 15, 2017, Messick filed a “Motion to Strike Resentence

Order of November 18, 2016,” challenging the legality of his probation

violation sentence on the bases that the trial court lacked jurisdiction and

statutory authority to impose the sentence. The trial court treated Messick’s

motion as a timely-filed PCRA petition.6 On May 18, 2017, the court filed a

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6 The PCRA remains the sole method for obtaining post-trial collateral relief,
regardless of the manner in which the petition is titled. See Commonwealth
v. Hutchins, 760 A.2d 50, 52 n.1 (Pa. Super. 2000). Moreover, we do not
interpret Messick’s motion as one requesting modification or amendment of
restitution, which is permissible at any time. See Commonwealth v.
Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (under 18 Pa.C.S. §
1106(c)(3), defendant may seek modification or amendment of restitution
order at any time directly from trial court).

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Pa.R.Crim.P. 907 notice of its intent to dismiss Messick’s petition; Messick

responded to the notice on June 5, 2017.        On June 13, 2017, the court

dismissed Messick’s petition. This timely appeal follows.

      On appeal, Messick raises the following issues for our consideration:

      (1)   Whether a sentencing court creates an ambiguity that must
            be resolved in favor of the defendant where the court does
            not inform the defendant at the time of sentencing that a
            probationary sentence with restitution was imposed under
            the statutory authority of title 18 [of the] Crimes Code
            instead of title 42 [of the] Sentencing Code.

      (2)   Whether a probationary sentence with restitution imposed
            for the primary purpose of making the victim whole does, in
            effect, create a debtor–creditor relationship between
            defendant and victim tantamount to an award of damages
            in a civil case, thus constituting an illegal sentence because
            it derogates the authority of both the [C]rimes [C]ode and,
            more significantly, the Sentencing Code.

Appellant’s Brief, at 5.

      We first note that the standard of review of an order denying a PCRA

petition is whether that determination is supported by the evidence of record

and is free of legal error.   The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

      Messick argues that the sentencing court lacked the authority to

resentence him to another 5-year term of probation or impose continued

restitution, after the five-year maximum date for which he could have been

sentenced for his original crime had expired.

      In the context of a criminal case, restitution may be imposed
      either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a condition

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       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. See 18 Pa.C.S.A. § 1106(a);
       [Commonwealth v.] Harner, [] 617 A.2d [702,] 704 [(Pa.
       Super. 1992)7]. 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.
       Harner, [] 617 A.2d at 706. As this Court stated in Harner:

          Such sentences are encouraged and give the trial court the
          flexibility to determine all the direct and indirect damages
          caused by a defendant and then permit the court to order
          restitution so that the defendant will understand the
          egregiousness of his conduct, be deterred from repeating
          this conduct, and be encouraged to live in a responsible
          way.

       [Id.] at 707; see also Commonwealth v. Walton, [] 397 A.2d
       1179, 1185 ([Pa.] 1979). Thus, the requirement of a nexus
       between the damage and the offense is relaxed where restitution
       is ordered as a condition of probation. See Harner, [] 617 A.2d
       at 707 & n.3; see also 42 Pa.C.S. § 9754(c)(8).

Commonwealth v. Holmes, 155 A.3d 69 (Pa. Super. 2017) (en banc)

(opinion in support of affirmance).

       Restitution, imposed as a direct sentence, is set forth at 18 Pa.C.S §

1106 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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7Harner predates the 1995 amendments to the Sentencing Code which now
do not require that a sentencing court consider “what loss or damage has been
caused, and what amount of restitution [a defendant] can afford to pay, and
how it should be paid” when ordering restitution under the Code. See
Commonwealth v. Colon, 708 A.2d 1279, 1282 (Pa. Super. 1998).

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

18 Pa.C.S. § 1106(a). In addition, “[w]henever restitution has been ordered

pursuant to subsection (a) and the offender has been placed on probation or

parole, his compliance with such order may be made a condition of such

probation or parole.”     18 Pa.C.S. § 1106(b) (“Condition of probation or

parole”).

      Here, the trial court’s original 2011 oral and written sentence

characterizes restitution as a condition of Messick’s probation. However, in

its Rule 907 notice and Pa.R.A.P. 1925(a) opinion, the trial court states that it

imposed restitution as a direct sentence, not a condition of Messick’s

probation. See Pa.R.Crim.P. 907 Notice, 5/18/17, at ¶ 14; Pa.R.A.P. 1925(a)

Opinion, 8/10/17, at 4.    Specifically, the court noted that the true intent

behind its restitution sentence was penal in nature, not rehabilitative, as it

was intended to compensate the victim for his loss, which was a “direct result”

of the offense (theft) for which Messick had pled guilty. See Commonwealth

v. Wright, 722 A.2d 157, 160 (Pa. Super. 1998) (victim’s loss is direct result

of defendant’s offense when it “flows from the conduct that is the basis of the

crime for which . . . [the] defendant is held criminally accountable.”); see

also Commonwealth v. Wood, 446 A.2d 948, 950 (Pa. Super. 1982)

(sentence of restitution is designed to impress “upon the offender the loss he

has caused and his responsibility to repair that loss as far as it is possible to

do so.”) (citation and internal quotations omitted).



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      As the restitution statute states, a defendant’s compliance with an order

of restitution as a direct sentence under section 1106 may be made a condition

of his or her probation. See 18 Pa.C.A. § 1106(b). That was the case here.

The amount of restitution ordered is exactly the amount of funds that Messick

converted from the victim. Commonwealth v. Harriott, 919 A.2d 234, 238

(Pa. Super. 2007) (citation omitted) (restitution is a proper sentence only if

there is a “direct causal connection between the crime and the loss.”).

Moreover, the intent behind the court’s restitution order was to compensate

the victim for his loss. See N.T. Negotiated Guilty Plea Hearing, 8/22/11, at

4 (defense counsel stating, “I promise you I will stay on top of Mr. Messick to

get this thing repaid quickly.”); id. (defendant stating, “I want to get it paid

off as soon as possible as well.”).

      Therefore, because restitution was a component of Messick’s direct

sentence, not a condition of his probation under section 9754, the court had

no basis upon which to conclude that he had committed a technical violation

of his probation and resentence him to an additional five-year term of

probation. See 18 Pa.C.S. § 1104(1) (“person who has been convicted of a

misdemeanor may be sentenced to imprisonment for a definite term which

shall be fixed by the court and shall be not more than . . . [f]ive years in the

case of a misdemeanor of the first degree.”). Thus, we reverse that portion




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of the PCRA order denying Messick relief from his probationary resentence.

See 42 Pa.C.S. § 9754.8

       With regard to the propriety of the court’s order mandating Messick

continue to pay restitution, we note that when restitution is issued under

section 1106(a), it is enforceable until paid.                 See 18 Pa.C.S.A. §

1106(c)(1)(ii); see also Commonwealth v. Griffiths, 15 A.3d 73, 75 (Pa.

Super. 2010). In Griffiths, our Court held that the trial court retained the

authority to enforce its restitution order and find the defendant in contempt

for non-compliance with his restitution payments even after the defendant

had finished his term of incarceration.          There, the trial court had similarly

imposed restitution as a direct sentence under section 1106(a). When the

defendant had paid less than half of the ordered amount by the time his

sentence     expired    and   the    defendant    repeatedly    ignored   the   court’s

delinquency notices, the court, through its contempt power, ordered the

defendant to serve six months of incarceration, make a $2,500 lump sum

payment, and pay $500/month until the full amount of restitution was paid.

Id. at 75.    In affirming the trial court’s contempt order, our Court noted that
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8 We also recognize that, despite the fact that Messick signed a stipulation
with regard to this resentence, a criminal defendant cannot agree to an illegal
sentence. Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)
(finding sentencing order which imposed $1.00 of restitution “as an interim
value for Probation to determine at a later date” was illegal under 18 Pa.C.S.
§ 1106; defendant’s agreement to term as part of negotiated plea was of “no
legal significance.”).




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the current version of section 1106(c)(2)(ii), “deleted the time limits originally

contained in subsection (c)(2)(ii).”9 Id. at 78. “Now, an order of restitution

is enforceable until paid.” Id. Cf. Commonwealth v. James, 771 A.2d 33

(Pa. Super. 2001) (under pre-1998 version of section 1106(c)(2)(ii), trial

court’s power to enforce restitution order as part of direct sentence limited to

maximum period of time to which defendant could have been sentenced).

       Because Messick was sentenced in 2011, the current version of section

1106(c)(2)(ii) applied to his sentence. Accordingly, the trial court retains the

authority to enforce Messick’s order of restitution, attached to his direct

sentence of probation under section 1106, until it is fully paid. 18 Pa.C.S. §

1106(c)(2)(ii); Griffiths, supra.

       Thus, we conclude that the court had no basis upon which to impose an

additional term of probation when Messick did not violate his probation, as his

restitution sentence was part of his direct sentence and not a condition of his

probation. Such a sentence is illegal and he is entitled to relief under the
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9The General Assembly amended section 1106(c)(2)(ii), effective December
3, 1998, by deleting the following highlighted text:

       (ii) May order restitution in a lump sum, by monthly installments
       or according to such other schedule as it deems just, provided
       that the period of time during which the offender is ordered
       to make restitution shall not exceed the maximum term of
       imprisonment to which the offender could have been
       sentenced for the crime of which he was convicted.

See Act 1998-121 (H.B. 413), P.L. 933, § 1 (emphasis added).




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PCRA. See 42 Pa.C.S. § 9543(a)(1)(i); id. at § 9543(a)(2) (vii). However,

with regard to the court’s resentencing order mandating Messick to continue

to pay restitution, we conclude that the trial court retains the continuing

authority to enforce its direct order of restitution against Messick until it is

fully paid. See 18 Pa.C.S. § 1106(c)(2)(ii). It may use its full contempt power

as a means to enforce that portion of his original sentence. Griffiths, supra;

18 Pa.C.S. § 1106(f).

       Order reversed in part.10 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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10In particular, we only reverse that portion of the PCRA court’s order denying
Messick relief on the trial court’s 5-year probationary resentence. The portion
of the resentencing order subjecting Messick to continue to pay restitution,
however, is proper as we have discussed infra.

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