J-S13024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JIM RONALD MILLS, JR.

                            Appellant                   No. 888 WDA 2015


               Appeal from the PCRA Order entered May 26, 2015
                 In the Court of Common Pleas of Potter County
                Criminal Division at No: CP-53-CR-0000022-2012


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED JUNE 07, 2016

        Appellant, Jim Ronald Mills, Jr., appeals from the May 26, 2015 order

of the Court of Common Pleas of Potter County, dismissing his petition for

collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

        The record shows Appellant was charged with fraud, theft, and misuse

of funds of an elderly victim.             Subsequently, on February 10, 2014,

Appellant pled guilty to one count of theft and was sentenced to time served

and payment of restitution in the amount of $60,000, with a payment

schedule of $1,000 per month. See Sentencing Order, 2/12/14.1
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    The sentencing order, in relevant part, provides:

(Footnote Continued Next Page)
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      On February 15, 2015, Appellant filed his first PCRA petition

challenging, inter alia, the legality of his plea and sentence and effectiveness

of plea counsel.       On March 5, 2015, the PCRA court issued a notice of its

intent to dismiss the PCRA petition because Appellant was not eligible for

PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(1)(i). On May 26, 2015, the

PCRA court dismissed the petition. This appeal followed.

      On appeal, Appellant raises the following issue:

      Should the Superior Court reverse and remand [sic] the trial
      court erred as a matter of law in denying the Appellant’s first
      PCRA petition without hearing in determining the Appellant was
      no longer under supervision thus denying relief available to him
      under 42 Pa.C.S.A. Section 9545 and determined that the
      restitution obligation did not constitute remaining under
      supervision such that relief from the conviction could be
      granted?

Appellant’s Brief at 9.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its



                       _______________________
(Footnote Continued)

      It is hereby ORDERED, ADJUDGED and DECREED that the
      defendant is given credit for time served. The [c]ourt directs the
      defendant to pay the victim $60,000.00 payable in the amounts
      of $1,000.00 per month commencing March 15, 2014, and each
      month thereafter. . . . Failure to comply with payments would
      subject the defendant to contempt proceedings for failing to
      comply with this [c]ourt order.

Sentencing Order, 2/12/14.




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conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

       Assuming Appellant has an underlying claim,2 we must determine

whether he is eligible for PCRA relief.          As noted, the PCRA court found

Appellant was not eligible for relief pursuant 42 Pa.C.S.A. § 9543(a)(1)(i)

because he was no longer “serving” his sentence. We agree.

       To be eligible for post-conviction relief,

       the petitioner must plead and prove by a preponderance of the
       evidence all of the following:

          (1) That the petitioner has been convicted of a crime under
          the laws of this Commonwealth and is at the time relief is
          granted:

              (i) currently serving a sentence of imprisonment, probation
              or parole for the crime;


42 Pa.C.S.A. § 9543(a)(1)(i).

       Appellant essentially argues that the order of restitution imposed in

the instant matter qualifies as a condition of probation or parole—despite the

fact he was not ever placed on probation or parole—because any other

interpretation of the sentencing order would render the restitution order

unenforceable.      Not surprisingly, Appellant provides no authority for his

contention. Indeed, the two cases Appellant relies upon are distinguishable

____________________________________________


2
 Appellant provides no discussion in his brief of the merits of his claim. The
entire argument section of the brief is devoted to the question of eligibility.



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(Commonwealth v Karth, 994 A.2d 606 (Pa. Super. 2010)) and/or directly

contradict Appellant’s contention (Commonwealth v James, 771 A.2d 33

(Pa. Super. 2001)).

      Appellant ignores that 18 Pa.C.S.A. § 1106 provides that restitution

can be ordered as direct sentence or as a condition of probation/parole.

Specifically, in relevant part, § 1106 provides:

      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.

      (b) Condition of probation or parole.--Whenever 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.A. § 1106(a)-(b).

      Here, as also acknowledged by Appellant, the sentencing court did not

impose restitution as a condition of probation or parole. Indeed, restitution

was ordered as part of the direct sentence.        The fact that restitution has

been ordered as part of the direct sentence does not mean, as Appellant

argues, that the trial court “lacked supervisor[y] ability to assure restitution

payment.”     Appellant’s Brief at 10.     Where, as in the instant matter,

restitution has not been ordered as a condition of parole or probation, the

trial court “has the continuing power to monitor and enforce that sentence.

An order of restitution is enforceable until paid. However, the monitoring


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of appellant’s restitution payments does not make him eligible for

relief under the PCRA.” James, 771 A.2d 36 (citation omitted) (emphasis

added).       James is directly on point, and Appellant provides no reason why

we should not apply James. Thus, under the circumstances, Appellant is no

longer serving his sentence. As a result, Appellant is not eligible for PCRA

relief.

          In light of the foregoing, we conclude the PCRA court correctly

dismissed the petition, and it did not abuse its discretion in denying

Appellant a hearing on his petition.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/07/2016




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