J-S12036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT GREY                                :
                                               :
                        Appellant              :   No. 2351 EDA 2019

                Appeal from the PCRA Order Entered July 8, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0002085-2017


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 13, 2020

        Appellant, Robert Grey, pro se, appeals from the order entered July 8,

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 in part, and remand for resentencing on the

issue of restitution.

        On January 30, 2018, Appellant pleaded nolo contendere to conspiracy

to commit burglary2 and was immediately sentenced to 18 to 36 months of


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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. § 903 (to commit id. § 3502(a)(2) (“enters a building or occupied
structure, or separately secured or occupied portion thereof that is adapted
for overnight accommodations in which at the time of the offense no person
is present”)).
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confinement.    During his sentencing hearing, the trial court asked if the

Commonwealth was going to request restitution, and the Commonwealth

answered that it would “just ask for $1.00 now.” N.T., 1/30/2018, at 3-4.

The written sentencing order did not include any mention of restitution.

Appellant did not file a direct appeal.

      On March 1, 2018, the trial court entered a separate order for restitution

in the amount of $67,398.48. No hearing was held on the issue of the amount

of restitution. Appellant again did not file an appeal following the entry of this

order.

      On January 18, 2019, Appellant filed his first, pro se, timely PCRA

petition, alleging ineffective assistance of counsel for failing to advise him that

he would owe restitution, amongst other issues. On January 23, 2019, the

PCRA court appointed counsel to represent Appellant. On May 28, 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). Neither the petition to

withdraw nor the “no merit” letter addressed the issue of restitution.

      On June 4, 2019, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907. On July 8, 2019,

the PCRA court granted counsel’s motion to withdraw and dismissed

Appellant’s petition. On August 2, 2019, Appellant filed this timely appeal.




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      On August 9, 2019, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

no later than 21 days from the date of the order – i.e., by August 30, 2019.

Appellant filed a handwritten, one-page motion for extension of time to file his

Rule 1925(b) statement, requesting an additional 45 days (“the Motion”).

According to the Motion:

      [Appellant] has submitted multiple requests to [State Correctional
      Institution] Forrest’s Law Library with the importance of the
      situation and sensitivity to time with no response. Without the
      use of the Law Library[, Appellant] has no way to look up case law
      or the Pa.R.A.P. codes.        [Appellant] is therefore blind and
      unknowing what it is the court is asking of him also making it
      impossible to reply properly. Also without the use of the Law
      Library[, Appellant] has to write out every page to every court
      official individually because he has no access to a printer. These
      issues are beyond the control of [Appellant.]

The date on the Motion itself was August 18, 2019; the postmark on the

envelope in which it was mailed to the Clerk of Judicial Records was

September 4, 2019. There is no evidence of when the Motion was placed in

the hands of prison authorities for mailing. On September 17, 2019, the PCRA

court denied the Motion, deeming it to be untimely and finding that Appellant

had not established “good cause” for an extension of time, without further

explanation.   On September 24, 2019, the PCRA court entered an opinion

stating that all of Appellant’s claims had been waived for failure to comply with

the court’s order to file a Rule 1925(b) statement; the trial court opinion made

no mention of restitution.




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      Preliminarily, we must address whether Appellant’s issues were waived

for failure to file a Rule 1925(b) statement. As noted above, Appellant filed

the Motion for extension of time to file his Rule 1925(b) statement. If the

handwritten date on the Motion -- August 18, 2019 -- were considered the

date of the Motion, then the Motion was timely. However, if the postmark on

the Motion’s envelope -- September 4, 2019 -- were considered the date of

the Motion, then the Motion was untimely. “[U]nder the ‘prisoner mailbox

rule’ a document is deemed filed when placed in the hands of prison authorities

for mailing.” Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa.

Super. 2016). Nevertheless, there is no evidence of when the Motion was

placed in the hands of prison authorities for mailing. Without such proof, we

cannot unequivocally stated that the Motion was untimely.

      Additionally, “Rule 1925 require[s] our courts to consider carefully an

appellant’s request for an extension of time within which to file a Rule 1925(b)

statement.”   Commonwealth v. Hopfer, 965 A.2d 270, 273 (Pa. Super.

2009). In Hopfer, id. at 272, the appellant had filed a motion for extension

of time to file his Rule 1925(b) statement, which the PCRA court denied

without providing any analysis as to why it did not find the appellant’s

justification for needing the extension to be reasonable. This Court held that

when an appellant “files for an enlargement or extension of time within which

to file his Rule 1925(b) statement, the trial court must explain why it finds

that good cause was not shown before it may deny the request.” Id. at 271.


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Accordingly, this Court determined that “remand [was] necessary for the

proper filing of a Rule 1925(b) statement and Rule 1925(a) opinion.” Id. at

274.

       Analogously, in the current action, Appellant filed the Motion for

extension of time to file a Rule 1925(b) statement, which the PCRA court

denied without providing justification for its finding that good cause had not

been show.      Consequently, in the interests of justice, we would normally

remand to allow Appellant to file a Rule 1925(b) statement in order to preserve

his appellate challenges and to allow the PCRA court then to file a

supplemental Rule 1925(a) opinion.

       Nonetheless, we are aware that one of Appellant’s issues is the legality

of the award of restitution, because he raised it in his pro se PCRA petition

and his appellate brief.      Appellant’s Brief at 3.   “[A]n award of restitution

relates to the legality of a sentence[.]” Commonwealth v. Tanner, 205 A.3d

388, 398 (Pa. Super. 2019).3           A “court may entertain a challenge to the



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3      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 his direct sentence.

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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. 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


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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.

2002)) (same); see Walker, 666 A.2d at 310 (citing Commonwealth v.

Reed, 543 A.2d 587, 589 (Pa. Super. 1988); Balisteri, 478 A.2d 5) (“an

order of restitution that was not supported by the record was illegal”).

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

restitution at the time of sentencing, the trial court subsequently entered an

order for the amount of restitution due. As the trial court failed to comply

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

486-87 (“[T]he 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




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

§ 1106(c).4

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

to appoint counsel to represent Appellant at his resentencing hearing within

21 days of the date that the certified record is returned 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.

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

        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.

Commonwealth v. Lekka, 210 A.3d 343, 358 (Pa. Super. 2019) (internal
brackets, quotation marks, and some citations omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/20




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