J-S16036-18

                                   2018 PA Super 131

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    JEREMY MICHAEL BANEY                       :
                                               :      No. 1530 MDA 2017
                       Appellant               :


               Appeal from the Order Entered September 7, 2017
                in the Court of Common Pleas of Clinton County
               Criminal Division at No.: CP-18-CR-0000109-2002


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

OPINION BY PLATT, J.:                                      FILED MAY 18, 2018

       Appellant, Jeremy Michael Baney, appeals from the trial court’s order

denying his motion for resentencing after it vacated his sentence of restitution.

We affirm.

       We take the following pertinent factual and procedural background from

the trial court’s September 7, 2017 opinion and our independent review of the

certified record. On May 19, 2003,1 Appellant entered a negotiated guilty plea

to twenty-one counts of possession with intent to deliver (PWID), five counts

of dealing in proceeds of unlawful activity, and one count each of criminal




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1Appellant entered the guilty plea on May 19, 2003, in open court. It was
docketed on May 20, 2003.


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* Retired Senior Judge assigned to the Superior Court.
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conspiracy and criminal use of a communication facility.2 The charges arose

from Appellant’s involvement in a multiple county drug ring in central

Pennsylvania, from 1997 to 2001.               On August 11, 2003, pursuant to the

agreement, the trial court sentenced Appellant to an aggregate term of

incarceration of not less than twenty nor more than thirty-nine years,3 plus

$50,000.00 in fines, and an aggregate restitution amount of $12,621.93,

payable to the Pennsylvania Office of the Attorney General (OAG) and the

Pennsylvania State Police (PSP). This Court affirmed Appellant’s judgment of

sentence on September 3, 2004, and the Pennsylvania Supreme Court denied

permission for further review on June 7, 2005.4 (See Commonwealth v.

Baney, 860 A.2d 127 (Pa. Super. 2004), appeal denied, 877 A.2d 459 (Pa.

2005)).

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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 5111(a)(1), 903(a), and
7512(a), respectively.

3  As observed by a previous panel of this Court in Appellant’s appeal from the
denial of his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546: “[T]he departure of the trial court from
the general rule of sentencing that the minimum sentence be one-half the
maximum sentence was due to the applicability of mandatory minimum
sentences. See Commonwealth v. Hockenberry, 689 A.2d 283, 289 (Pa.
Super. 1997), appeal denied, 695 A.2d 784 (Pa. 1997).” Commonwealth v.
Baney, No. 419 MDA 2008, unpublished memorandum, at *1 n.1 (Pa. Super.
filed Oct. 16, 2008) (some citation formatting provided).

4 Thereafter, between July 2005 and August 2016, Appellant filed myriad
petitions, motions, and appeals, which we will not include herein, except to
the extent necessary for our review.




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       Appellant filed a petition to modify restitution on March 3, 2017. (See

Petition to Modify Restitution, 3/03/17).        On June 9, 2017, after holding a

conference with counsel, allowing the parties to brief the issue, and with the

Commonwealth’s agreement, the court vacated the restitution payable to the

OAG and PSP.5        On June 23, 2017, Appellant filed a pro se motion for

modification of sentence,6 in which he sought resentencing on all counts of

the complaint.        (See Motion to Modify Prison Sentence, 6/23/17, at

unnumbered page 2 ¶ 10). The court denied the motion on September 7,




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5 On November 22, 2016, our Supreme Court held that the Pennsylvania
Department of Community and Economic Development was “neither a ‘direct
victim’ nor a reimbursable compensating government agency under section
1106[ of the Crimes Code].” Commonwealth v. Veon, 150 A.3d 435, 455
(Pa. 2016) (footnote omitted).

6  “In this Commonwealth, hybrid representation is not permitted. . . .
[I]ndeed, pro se motions have no legal effect and, therefore, are legal
nullities.” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super.
2016) (citations omitted). Here, in his pro se filing, Appellant represented
that counsel failed to file the requested motion before leaving on vacation,
and counsel appeared at the hearing to argue the motion on Appellant’s
behalf. Under these circumstances, the trial court acted within its discretion
in addressing the merits of the hybrid filing. See Commonwealth v. Pursell,
724 A.2d 293, 302 (Pa. 1999), cert. denied, 528 U.S. 975 (1999) (“[D]ecision
whether to allow [] hybrid representation is within the sound discretion of the
trial court.”) (citation omitted).




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2017, after a hearing.7 Appellant filed a motion for reconsideration that the

court denied, and Appellant timely appealed.8

       Appellant raises one question for our review: “Whether the [trial] court

committed an error of law and/or abuse of discretion in failing to re-sentence

the Appellant after modifying the restitution aspect of [his] sentence?”

(Appellant’s Brief, at 6) (unnecessary capitalization omitted).      Appellant’s

issue lacks merit.

       “In the context of criminal proceedings, an order of restitution is not

simply an award of damages, but, rather, a sentence.” Commonwealth v.

Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) (citation and internal quotation

marks omitted).

       Pursuant to section 1106(c)(3) of the Crimes Code:

       The court may, at any time or upon the recommendation of the
       district attorney that is based on information received from the
       victim . . . alter or amend any order of restitution . . . provided,
       however, that the court states its reasons and conclusions as a
       matter of record for any change or amendment to any previous
       order.

18 Pa.C.S.A. § 1106(c)(3) (emphasis added).


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7  The motion also sought argument on Appellant’s request to view sealed
documents. (See Motion, 6/23/17, at unnumbered pages 1-2). Because this
is not pertinent to this appeal, we mention it only for completeness.

8 Appellant filed a timely court-ordered statement of errors raised on appeal
on November 8, 2017. The court filed an opinion on November 15, 2017 in
which it relied on the reasons stated in its September 7, 2017 opinion and
order. See Pa.R.A.P. 1925.


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             Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

      Here, Appellant maintains that, because it vacated his restitution, the

court was required to “resentence [him] on all counts to which he entered

guilty pleas[.]” (Appellant’s Brief, at 9; see id. at 9-12). We disagree.

      It is well-settled that:

      [I]f a trial court errs in its sentence on one count in a multi-count
      case, then all sentences for all counts will be vacated so that the
      court can restructure its entire sentencing scheme. This has been
      held true even where Appellant specifically limits his appeal to one
      particular illegal sentence based upon one bill of information and
      does not appeal sentences based upon other bills of information,
      where those sentences are part of a common sentencing scheme.

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999), appeal

denied, 747 A.2d 896 (Pa. 1999) (citations omitted) (holding that, under

circumstances, PCRA court did not abuse its discretion in vacating entire

sentence before resentencing, rather than addressing only illegal part of

sentence); see also Veon, supra at 456 (remanding for resentencing where

vacating sentence of imprisonment and restitution left the “comprehensive

sentencing scheme unmoored from its foundation.”).

      Here, as observed by the trial court:

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       This court must conclude that the restitution in and of itself was
       not a major consideration of the sentencing judge . . . , that the
       vacation of the restitution portion of the sentencing order did not
       unmoor the foundation of the comprehensive sentencing scheme
       . . . , and finally that it was not a critical part of the sentencing
       scheme . . . .

(Trial Court Opinion, 9/07/17, at 6) (unnecessary capitalization omitted).

       We agree with the trial court.            It is uncontested that, with the

Commonwealth’s agreement, the trial court vacated Appellant’s restitution

based on Appellant’s motion contesting the legality of the restitution order.

(See id. at 3; Appellant’s Brief, at 7, 9; Commonwealth’s Brief, at 5). The

court did not disturb the overall sentencing scheme of not less than twenty

nor more than thirty-nine years’ imprisonment by vacating restitution.

Therefore, the court was not required to resentence Appellant on all counts,

and it did not abuse its discretion in denying Appellant’s motion requesting

that it do so. See Antidormi, supra at 760; see also Veon, supra at 455;

Bartrug, supra at 1289.9 Appellant’s issue does not merit relief.




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9 We note that, in Commonwealth v. Berry, 167 A.3d 100 (Pa. Super. 2017),
this Court vacated a defendant’s judgment of sentence and remanded for
resentencing where the restitution portion of the sentence was illegal. See
id. at 110. However, that case is factually distinguishable. In Berry, the
defendant only was sentenced to probation and restitution. See id. at 103-
04. Therefore, this Court concluded that vacating for resentencing was
appropriate where “the restitution was a critical part of the sentencing
scheme.” Id. at 110. Conversely, here, by vacating the order for restitution,
the court did not upset what was the critical part of the sentence, the
aggregate sentence of twenty to thirty-nine years’ imprisonment. Id.

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      Additionally, in the interest of a full analysis, we observe the following.

It appears to this Court that the issue presented by this case would not have

arisen if the trial court and counsel employed the precise use of the words,

“restitution” and “costs of prosecution.”

      It is well-established that the Commonwealth is not a victim entitled to

restitution. However, what the Commonwealth is statutorily authorized to

receive are costs of prosecution. See 18 Pa.C.S.A. § 9728(g) (“Any . . . costs

associated with the prosecution[] shall be borne by the defendant[.]”); 16

P.S.A. § 7708 (“[T]he expenses of the district attorney, in connection with

[the] prosecution, shall be considered a part of the costs of the case[] and be

paid by the defendant.”). These costs include, but are not limited to, the costs

of convening an investigating grand jury, expert witness fees, clerk costs, “buy

money,” and other expert witness costs to investigate these crimes.         See

Commonwealth v. Garzone, 993 A.2d 1245, 1258-59 (Pa. Super. 2010),

affirmed, 34 A.3d 67 (Pa. 2012).

      Instantly, it appears from review of the case file that the trial court did

not actually intend that Appellant pay true restitution, as defined by the

Crimes Code, to the Commonwealth. Instead, what was intended was that

Appellant pay the costs of prosecution incurred by the OAG and PSP in




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investigating and prosecuting his case.10        However, imprecisely using the

word, “restitution,” resulted in these costs being vacated. We caution courts

and counsel in such cases of the necessity of the accurate use of the terms,

“restitution” and “costs of prosecution” at sentencing when attempting to

recover “buy money,” grand jury costs, costs of investigations, or witness

fees.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/18




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10 This is confirmed in the order entered by the PCRA court that decided
Appellant’s second PCRA petition, and attempted to amend the “restitution”
portion of the sentence to read, “costs of prosecution.” (PCRA Ct. Order,
3/13/13, at 2). Unfortunately, this Court was required to vacate the PCRA
court’s order because Appellant’s petition was untimely, and the PCRA court
lacked jurisdiction.

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