J-S22045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JACOB AMENUVOR                              :
                                                :
                       Appellant                :   No. 18 MDA 2020

             Appeal from the PCRA Order Entered December 5, 2019
       In the Court of Common Pleas of Centre County Criminal Division at
                         No(s): CP-14-CR-0000456-2017


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                      FILED: JUNE 22, 2020

        Appellant, Jacob Amenuvor, pro se, appeals from the order entered

December 5, 2019, that dismissed his first petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We reverse the PCRA order,

vacate the underlying judgment of sentence, and remand for resentencing.

        On June 25, 2018, Appellant pleaded guilty to aggravated assault2 and

was immediately sentenced to four to eight years of confinement.

        As part of [Appellant]’s sentence, the [trial c]ourt included an
        order of restitution to [the victim] in the amount of $1.00 and
        directed that a payment schedule be established by the Centre
        County Probation and Parole Department. Although it was known
        at the time of sentencing that the victim incurred treatment-
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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. § 2702(a)(3).
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       related expenses properly reimbursable through restitution, the
       amount of those expenses had not yet been determined.

       On July 25, 2018, the Commonwealth filed a Motion to Modify the
       Restitution. The [trial c]ourt scheduled a hearing on the Motion
       for August 31, 2018. Following the August 31, 2018 hearing, the
       Court granted the Commonwealth’s Motion and amended the
       sentencing order to reflect $11,968.56 in restitution.

PCRA Court Opinion, dated February 19, 2020, at 1. Appellant did not file a

direct appeal.

       On June 27, 2019, Appellant filed his first, pro se, timely PCRA petition

challenging the restitution award. On July 9, 2019, the PCRA court appointed

counsel to represent Appellant. On October 7, 2019, PCRA counsel filed a

petition to withdraw and a “no merit” letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On October 7, 2019, the PCRA court granted

counsel’s motion to withdraw and entered a notice of intent to dismiss all

claims without a hearing pursuant to Pa.R.Crim.P. 907.          On November 8,

2019, Appellant filed a response that did not request to amend the PCRA

petition.

       On December 5, 2019, the PCRA court dismissed Appellant’s petition.

On December 23, 2019, Appellant filed this timely appeal.3

       Appellant presents the following issue for our review:

       Whether the PCRA court erred under Com[monwealth] v.
       Gentry, 101 A.3d 813 (Pa.Super.2014)?
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3 Appellant filed his statement of errors complained of on appeal on
January 29, 2020. The PCRA court entered its opinion on February 19, 2020.


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Appellant’s Brief at 4 (unnecessary capitalization omitted) (some additional

formatting).

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

       “[A]n award of restitution relates to the legality of a sentence[.]”

Commonwealth v. Tanner, 205 A.3d 388, 398 (Pa. Super. 2019).4 A “court

may entertain a challenge to the legality of the sentence so long as the court

has jurisdiction to hear the claim.” Commonwealth v. Berry, 877 A.2d 479,

482 (Pa. Super. 2005) (en banc); see also Commonwealth v. Hoffman,

198 A.3d 1112, 1123 (Pa. Super. 2018) (“challenge to the legality of sentence

is never waived”); Commonwealth v. Walker, 666 A.2d 301, 307 (Pa.

Super. 1995) (citing Commonwealth v. Balisteri, 478 A.2d 5 (Pa. Super.




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4      Restitution is authorized under both the Crimes Code and under
       the Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106,
       controls restitution as a direct sentence. The Sentencing Code, in
       42 Pa.C.S. § 9754, permits a sentence of probation and offers a
       non-exclusive list of permissible conditions of probation, including
       restitution.

Commonwealth v. Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004). As
the trial court in the current action did not order probation, the restitution
award consequently must be pursuant to the Crimes Code under 18 Pa.C.S.
§ 1106 and, ergo, part of Appellant’s direct sentence.

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1984) (legality of sentence of restitution is not a waivable issue and, therefore,

we must address appellant’s contention)).

      “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210

A.3d 343, 355 (Pa. Super. 2019) (citation omitted).

      Our Supreme Court has explained:

      [R]estitution must properly be included in a sentence.
      Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa. Super.
      2002); Commonwealth v. Torres, 579 A.2d 398, 401 (Pa.
      Super. 1990). Section 1106(c)(2) provides that “[a]t the time
      of sentencing the court shall specify the amount and method of
      restitution.” 18 Pa.C.S. § 1106(c)(2). Further, “[i]t 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; ...
      based upon information solicited by the district attorney and
      received from the victim.” Id., [18 Pa.C.S.] § 1106(c)(4)(i). In
      Dinoia, the Superior Court held these requirements “provide[ ]
      the defendant with certainty as to his sentence, and at the same
      time allow[ ]for subsequent modification [pursuant to § 1106(c)],
      if necessary.” Dinoia, at 1257.

Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (emphasis

added) (some additional formatting added). Failure to comply with Section

1106(c)(2) results in an illegal sentence. Commonwealth v. Mariani, 869

A.2d 484, 485-86 (Pa. Super. 2005) (invalidating trial court’s order at the

sentencing hearing which failed to specify both the amount and method of

restitution and postponed determining same until after sentencing hearing);

Commonwealth v. Deshong, 850 A.2d 712, 715–16 (Pa. Super. 2004)

(citing Commonwealth v. Dinoia, 801 A.2d 1257, 1257 n.1 (Pa. Super.


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2002)) (same); see also Commonwealth v. Gentry, 101 A.3d 813, 818 n.6

(Pa. Super. 2014) (characterizing Mariani and Deshong as cases in which

this Court “invalidated restitution orders which postposed determining any

restitution amount until after sentencing”).

        In the current appeal, rather than setting the amount and method of

restitution at the time of sentencing, the trial court held a separate,

subsequent hearing on the amount of restitution due and entered an order

distinct from the judgment of sentence. As the trial court failed to comply

with Section 1106(c)(2), Appellant’s sentence is illegal. Mariani, 869 A.2d at

487 (“Because the sentence here was an integrated one intended from the

outset to consist of both confinement and monetary elements, and because

both were not imposed contemporaneously, the illegality of one part

invalidates the whole.”).

        When a disposition by an appellate court alters the sentencing scheme,

the entire sentence should be vacated, and the matter remanded for

resentencing.      Deshong, 850 A.2d at 714 (citing Commonwealth v.

Goldhammer, 517 A.2d 1280 (Pa. 1986); Commonwealth v. Farone, 808

A.2d 580 (Pa. Super. 2002)).            Accordingly, we vacate the judgment of

sentence and remand for resentencing in compliance with 18 Pa.C.S.

§ 1106(c).5 Upon remand, the PCRA court must appoint counsel to represent

____________________________________________


5   Upon resentencing, we advise the trial court to consider the following tenets:



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Appellant or, if Appellant indicates that he wishes to represent himself, hold a

Grazier6 hearing.

       For the reasons set forth above, we remand this matter to the trial court.

While we would normally include a date by which the resentencing hearing

must occur, we are reluctant to issue a specific timeline given the coronavirus

disease 2019 (“COVID-19”) pandemic.              Instead, we relinquish panel

jurisdiction at this time so that the parties and the trial court may begin the

sentencing process anew, and we direct the court and the parties to comply

with the standard timing requirements as much as possible.

       PCRA order reversed. Judgment of sentence vacated. Case remanded

for additional proceedings consistent with this decision.      Panel jurisdiction

relinquished.




____________________________________________




       Pursuant to Section 1106, the Commonwealth is responsible for
       making a recommendation to the sentencing court as to the
       amount of the restitution to be ordered based on information
       provided by the victim or other available information. 18 Pa.C.S.
       § 1106(c)(4)(i)-(ii). Restitution is proper only if there is a direct
       causal connection between the crime and the loss. Because
       restitution is a sentence, the amount ordered must be supported
       by the record, and may not be speculative. In addition, the
       amount of restitution awarded must be determined under the
       adversarial system with considerations of due process.

Lekka, 210 A.3d at 358 (internal brackets, quotation marks, and some
citations omitted).
6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/22/2020




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