J-S63021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD E. NACHAJSKI

                            Appellant                 No. 119 MDA 2014


                Appeal from the PCRA Order December 17, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000794-2011


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 10, 2014

        Appellant, Richard E. Nachajski, appeals from the order entered

December 17, 2013, by the Honorable Scott D. Keller, Court of Common

Pleas of Berks County, which denied his joint petition under the Post

Conviction Relief Act (PCRA) and for modification of restitution. We affirm.

        On August 6, 2012, Nachajski entered an open guilty plea to one count

of Theft by Failure to Make Required Disposition of Funds Received,1 arising

out the misappropriation of parish funds during Nachajski’s tenure as the

priest at St. Anthony of Padua Roman Catholic Church in Berks County. At

the sentencing hearing on September 27, 2012, the parties represented to

the court that restitution had been agreed to in the amount of $425,000.00.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 PA.CONS.STAT.ANN. § 3927(a).
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See N.T., Sentencing, 09/27/12 at 3.        Thereafter, the court sentenced

Nachajski to two to seven years’ imprisonment and ordered Nachajski to pay

$425,000.00 in restitution. Nachajski did not file post-sentence motions or

pursue a direct appeal.

      On August 20, 2013, Nachajski filed a Motion Under the Post-

Conviction Relief Act and for Modification of Restitution.   The lower court

held a hearing on Nachajski’s motion on November 4, 2013. On December

17, 2013, the court denied Nachajski’s petition for PCRA relief and for

modification of restitution. This timely appeal followed.

      Nachajski raises the following issues on appeal:

      1) Whether the [l]ower [c]ourt erred in denying [Nachajski]
         relief under the Post Conviction Relief Act in that [Nachajski]
         did show that guilty plea counsel did not properly inform
         [Nachajski] that he could challenge the restitution amount?
         Specifically[,] [guilty] [p]lea [c]ounsel never informed
         [Nachajski] that he would have a right to seek a restitution
         determination from the [c]ourt and that [Nachajski] was not
         obligated to accept the determination of the District Attorney.

      2) Whether the [c]ourt erred in not permitting [Nachajski] to
         present evidence of the inaccuracies of the restitution
         determination made by the District Attorney at the time of
         the hearing in this matter? If [Nachajski] had been permitted
         to present evidence of same he could have shown that more
         than half of the restitution claimed was actually spent on
         legitimate purposes and had not been stolen….

      3) Whether the [l]ower [c]ourt erred in not granting [Nachajski]
         a restitution hearing pursuant to 18 Pa. C.S.A. 1106(c)(3) as
         a [c]ourt has the ability to modify a restitution amount at any
         time for good cause shown? Specifically[,] [Nachajski] did
         show good cause as he was never informed of his right to a
         restitution hearing and was never given a chance to present
         evidence of the inaccuracy of the restitution figure.


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Appellant’s Brief at 6.

       We review the lower court’s denial of a PCRA petition as follows. “On

appeal from the denial of PCRA relief, our standard and scope of review is

limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d

339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.

Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most    favorable   to    the   prevailing   party   at   the   PCRA   court   level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).    “[T]his Court applies a de novo standard of review to the

PCRA court’s legal conclusions.”      Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

       To determine whether the PCRA court erred in dismissing the claims of

ineffective assistance of counsel, we turn to the following principles of law:

       In order for Appellant to prevail on a claim of ineffective
       assistance of counsel, he must show, by a preponderance of the
       evidence, ineffective assistance of counsel which, in the
       circumstances of the particular case, so undermined the truth-
       determining process that no reliable adjudication of guilt or
       innocence could have taken place … Appellant must


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      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

      Moreover, “[w]e presume counsel is effective and place upon Appellant

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008).         “This Court will grant relief only if

Appellant satisfies each of the three prongs necessary to prove counsel

ineffective.” Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007).

Thus, we may deny any ineffectiveness claim if “the evidence fails to meet a

single one of these prongs.” Id. at 321.

      “A criminal defendant has the right to effective counsel during a plea

process….” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super.

2002). “Claims challenging the effectiveness of plea counsel’s stewardship

during a guilty plea are cognizable under 42 [PA.CONS.STAT.ANN.] §

9543(a)(2)(ii).” Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super.

2003) (citation omitted). In Commonwealth v. Morrison, 878 A.2d 102

(Pa. Super. 2005), the panel explained that we review allegations of

counsel’s ineffectiveness in connection with a guilty plea as follows:

      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of plea counsel,
      see generally Commonwealth v. Kimball, 555 Pa. 299, 312,
      724 A.2d 326, 333 (1999), under which the defendant must
      show that counsel’s deficient stewardship resulted in a manifest

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      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea. See, e.g., [Commonwealth
      v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [(1999)]
      (“Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the
      ineffectiveness caused appellant to enter an involuntary or
      unknowing plea.”)….

Id. at 105 (quoting Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa.

2004)) (brackets in original). “This standard is equivalent to the ‘manifest

injustice’ standard applicable to all post-sentence motions to withdraw a

guilty plea.” Id. (citation omitted).

      In Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009), our

Pennsylvania Supreme Court noted that Section 1106(c)(3) of the Crimes

Code authorizes a sentencing court to modify restitution orders at any time

provided the court states its reasons as a matter of record.       Id. at 1135

(emphasis in original) (citing 18 PA.CONS.STAT.ANN. § 1106(c)(3)). The Court

further determined that “Section 1106(c)(3)’s broad language indicates a

legislative intent that courts have jurisdiction to modify restitution orders at

any time without regard to when information should have been present for

consideration.” Id. Section 1106(c)(3) of the Crimes Code states that:

      The court may, at any time or upon the recommendation of the
      district attorney that is based on information received from the
      victim and the probation section of the county or other agent
      designated by the county commissioners of the county with the
      approval of the president judge to collect restitution, alter or
      amend any order of restitution made pursuant to paragraph (2),
      provided, however, that the court states its reasons and
      conclusions as a matter of record for any change or amendment
      to any previous order.


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18 PA.CONS.STAT.ANN. § 1106(c)(3). We note that Section 1106(c)(3) does

not require a court alter or amend a restitution order, but merely empowers

the trial court to do so.

      Although section 1106(c)(3) allows the judge to alter restitution,
      this does not mean that in every case the judge can alter the
      restitution award at any time for any reason. There must be
      justifiable reasons for the modification, and other principles of
      law must be followed. At some point, finality is needed.

Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004).

      With our standards in mind, we have examined the certified record,

the briefs of the parties, Judge Keller’s memorandum opinion, and the

applicable law, and we find that the lower court ably and methodically

addressed the issues Nachajski presented on appeal.       We agree with the

court that Nachajski fails to establish that counsel was ineffective.      We

additionally note that although Nachajski raises a general challenge to the

agreed upon restitution amount, he alludes to no specific reasons –

justifiable or otherwise – why modification of the restitution amount to which

he previously stipulated is warranted.    Accordingly, we affirm on the basis

of Judge Keller’s memorandum opinion. See Trial Court Opinion, 3/13/14.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




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