J-A07026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL R. VEON                            :
                                               :
                       Appellant               :   No. 749 MDA 2019

      Appeal from the Judgment of Sentence Entered November 19, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0004274-2009


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 17, 2020

       Appellant, Michael R. Veon, appeals from the November 19, 2018

Judgment of Sentence entered in the Court of Common Pleas of Dauphin

County following remand from the Pennsylvania Supreme Court for

resentencing. After careful review, we quash this appeal.

       On March 5, 2012, a jury convicted Appellant of one count each of

Conflict of Interest and Criminal Conspiracy, and two counts each of Theft by

Unlawful Taking, Theft by Deception, Theft by Failure to Make Required

Disposition of Funds, and Misapplication of Entrusted Property. 1 On June 19,

2012, the trial court sentenced Appellant to a term of 12 to 48 months’

incarceration, followed by 48 months of intermediate punishment. The court


____________________________________________


1 65 Pa.C.S. § 1103(a); and 18 Pa.C.S. §§ 903(a), 3921(a), 3922(a)(1),
3927(a), and 4113(a), respectively.
J-A07026-20



also sentenced Appellant to pay restitution to the Commonwealth of

Pennsylvania.

       On November 22, 2016, the Pennsylvania Supreme Court, concluding

that the Commonwealth of Pennsylvania cannot be a “victim” under 18 Pa.C.S.

§ 1106, vacated Appellant’s sentence and remanded to the trial court for

resentencing.

       The trial court held a resentencing hearing on November 19, 2018,

following which it reimposed Appellant’s original sentence of incarceration and

supervision and ordered Appellant to pay $19,000 in restitution. The certified

docket contains a docket entry reflecting that, on November 19, 2018, the

court ordered, inter alia, “$19,000 to be paid in [restitution.]” Docket Entry,

11/19/18.

       The lower court clerk entered a Resentencing Order on the docket one

week later, on November 26, 2018.                That Order confirmed the court’s

reimposition of Appellant’s June 19, 2012 sentence of incarceration and order

that Appellant pay restitution to the Pennsylvania Department of Community

and Economic Development (“DCED”) “as a condition of probation under 42

Pa.C.S.[] § 9754(c)(8).”        Alternatively, the court ordered Appellant to pay

restitution under the Pension Forfeiture Act, 43 P.S. § 1314(a). 2

       On December 5, 2018, Appellant filed a Post-Sentence Motion

challenging the legality of imposing restitution payable to the DCED, a division
____________________________________________


2 The Order also contained a typographical error, which the court corrected by
issuing an Amended Resentencing Order on June 3, 2019.

                                           -2-
J-A07026-20



of the Commonwealth of Pennsylvania, and of imposing restitution as a

condition of probation. Appellant also challenged the imposition of restitution

pursuant to the Pension Forfeiture Act, arguing that the Act does not provide

for the assessment of restitution beyond the amount of a public official’s

crimes.

        On April 5, 2019, the court notified Appellant that his Post-Sentence

Motion had been denied by operation of law. On May 2, 2019, Appellant filed

a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises the following three issues on appeal:

        1. Whether the [l]ower [c]ourt properly sentenced [Appellant] to
           pay restitution in any amount because the Commonwealth
           cannot be a victim under the statutory scheme in this case[?]

        2. Whether the [l]ower [c]ourt properly sentenced [Appellant] to
           pay restitution as a condition of probation when the
           Commonwealth failed to request restitution as a condition of
           probation at the time of [Appellant’s] sentencing[?]

        3. Whether the [l]ower [c]ourt property ordered [Appellant] to
           pay restitution under the Pension Forfeiture Act since
           [Appellant] was not an employee of the Commonwealth at the
           time of his sentencing[?]

Appellant’s Brief at 5.

        Before we address Appellant’s issues, we must consider whether he

timely filed the instant appeal. The timeliness of an appeal implicates our

jurisdiction, therefore, we may raise the issue sua sponte. Commonwealth

v. Dreves, 839 A.2d 1122, 1126 n.4 (Pa. Super. 2003 (en banc); see



                                      -3-
J-A07026-20



Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (sua sponte

raising timeliness of an appeal where defendant filed Pa.R.Crim.P. 720(A)(1)

post-sentence motion more than 10 days after imposition of sentence and did

not toll appeal period).

       The trial court docket reflects that the court resentenced Appellant at

his resentencing hearing on November 19, 2018.3 See Commonwealth v.

Duffy, 143 A.3d 940, 943-44 (Pa. Super. 2016) (explaining that the court

imposes a defendant’s sentence on the day it is pronounced, not on the day

the court enters its sentencing order); Commonwealth v. Green, 862 A.2d

613, 615-18 (Pa. Super. 2004) (en banc) (construing the time period set forth

in Rule 720(A)(1) for filing a post-trial motion as running from the date

sentence is imposed and not the date the clerk of court dockets its sentencing

order). Thus, the period in which Appellant could file a timely post-sentence

motion began to run on November 19, 2018. Id.

       Appellant filed his Post-Sentence Motion on December 5, 2018, more

than 10 days after his resentencing. Accordingly, Appellant’s Post-Sentence

Motion was untimely.

       Pa.R.Crim.P. 720 provides, in relevant part, that “if the defendant does

not file a post-sentence motion, the defendant’s notice of appeal shall be filed

within 30 days of imposition of sentence.” Pa.R.Crim.P 720(A)(3). Because

the filing of an untimely post-sentence motion does not toll the running of the
____________________________________________


3Appellant did not provide this Court with the Notes of Testimony from his
November 19, 2018 resentencing hearing.

                                           -4-
J-A07026-20



appeal period, the instant appeal, filed more than five months after imposition

of sentence, was, likewise, untimely. We, thus, lack jurisdiction to entertain

it.   See Duffy, supra at 944; Green, supra at 618.        We are, therefore,

constrained to quash Appellant’s appeal.

       Appeal quashed.

       Judge Olson joins the memorandum.          Judge McLaughlin did not

participate.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2020




                                     -5-
