J-A21021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 KWESI HUDSON                           :
                                        :
                   Appellant            :   No. 351 EDA 2019

      Appeal from the Judgment of Sentence Entered August 13, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0002814-2017,
                          CP-15-CR-0004122-2017

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 KWESI HUDSON                           :
                                        :
                   Appellant            :   No. 553 EDA 2019

      Appeal from the Judgment of Sentence Entered August 13, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0004122-2017


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 17, 2020

     Appellant, Kwesi Hudson, appeals from the judgment of sentence

entered on August 13, 2018, as made final by the denial of his post-sentence

motion on January 15, 2019. We vacate Appellant’s judgment of sentence

and guilty plea and remand.
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        On August 13, 2018, Appellant entered a negotiated guilty plea to two

counts of robbery and one count of burglary.1 During the guilty plea colloquy,

Appellant admitted to the following:

          On [January 27, 2017,] at 6:43 [a.m., Appellant] forced his
          way into the Rite-Aid Pharmacy on Phoenixville Pike in West
          Goshen Township . . . before the pharmacy was open for
          business. His intent in forcing his way in was to rob the
          pharmacy.

          He punched the store manager, who had just opened the
          front door, and forced [the manager] to provide him with
          over $4,000[.00] of Rite-Aid’s money.

          While [Appellant] was carrying what appeared to be a
          semiautomatic pistol, his conduct in the presence of what
          appeared to be a handgun caused the store manager to fear
          that he was going to be killed.

          After getting the Rite-Aid’s money, [Appellant] struck the
          store manager again, knocking [the manager] to the floor,
          before departing the Rite-Aid with Rite-Aid’s money.

                                           ...

          [On March 26, 2017,] at 9:29 [p.m., Appellant] walked into
          the Walgreens pharmacy on East Baltimore Pike in East
          Marlborough Township . . . , accosted the clerk who was in
          the store and forced her to the store office where the store
          supervisor was located.

          [Appellant] was carrying what appeared to be a
          semiautomatic pistol. He forced the store supervisor to
          provide him from the store safe with over $2,000[.00] of
          [Walgreens’] money.

          Both the clerk and the store supervisor feared that they
          would be killed.

____________________________________________


1   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3502(a)(3), respectively.

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        After getting Walgreens’ money from the safe, [Appellant]
        forced the clerk to provide him with cartons of cigarettes
        before departing the Walgreens through the door that he had
        entered to commit the robbery.

N.T. Guilty Plea Hearing, 8/13/18, at 5-7.

      The trial court accepted Appellant’s plea and immediately sentenced

Appellant to serve the negotiated sentence: a term of ten to 20 years in prison

for the Rite-Aid robbery, plus $4,199.69 in restitution to Rite Aid; a concurrent

term of ten to 20 years in prison for the Walgreens robbery, plus $2,901.00

in restitution to Walgreens; and, a concurrent term of two to 20 years in prison

for the burglary conviction. See id. at 9-12; see also Written Guilty Plea

Form, 8/13/18, at 1-4.

      On August 22, 2018, Appellant filed a timely post-sentence motion,

alleging that the above-quoted restitution provisions of his sentence were

illegal, as Rite-Aid and Walgreens are business entities and are not entitled to

restitution   under   the   relevant   statutory   scheme.     See   Appellant’s

Post-Sentence Motion, 8/22/18, at 1-3.       The trial court denied Appellant’s




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J-A21021-19



post-sentence motion on January 15, 2019 and Appellant filed timely notices

of appeal.2, 3    Appellant raises the following for our consideration:

         Was the order for restitution unconstitutional pursuant to the
         Pennsylvania Supreme Court’s holding in Commonwealth v.
         Veon, 150 A.3d 435 (Pa. 2016)? Does the restitution
         requirement imposed by [the] judgment of sentence
         constitute unconstitutional implementation of 18 Pa.C.S.A.
         § 1106?

Appellant’s Brief at 4.


____________________________________________


2 On November 26, 2019, we entered an order that stayed the current appeal
pending the en banc resolution of Commonwealth v. Johnson, ___ A.3d
___, 2020 WL 3869723 (Pa. Super. 2020), which concerned the proper
application of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) in light
of Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) (reading
Walker as a mandate to quash appeals where the notice of appeal contained
more than one trial court docket number). On July 9, 2020, the en banc panel
in Johnson overruled Creese. Hence, we lift the stay as we may now reach
the merits of the current appeal.

3  Appellant filed a timely post-sentence motion on August 22, 2018. The trial
court had 120 days to decide the post-sentence motion, but when it failed to
decide the motion within that period, the motion was deemed denied by
operation of law on December 21, 2018. See Pa.R.Crim.P. 720(B)(3)(a).
When a post-sentence motion is deemed denied, the clerk of courts must enter
an order deeming the motion denied on behalf of the trial court and serve
copies on the parties. See Pa.R.Crim.P. 720(B)(3)(c). A notice of appeal
must be filed within 30 days of the entry of the order denying the post-
sentence motion by operation of law. See Pa.R.Crim.P. 720(A)(2)(b). Here,
the clerk of courts failed to enter an order disposing of Appellant’s post-
sentence motion. Instead, the trial court entered an opinion and order
denying relief on January 15, 2019, outside the 120-day period, and Appellant
filed a notice of appeal within 30 days of that order. This Court has previously
determined that there is a breakdown in the judicial system when the clerk of
courts fails to enter a deemed denied order under Rule 720 and, thus, we may
consider the merits of Appellant’s current appeal. See Commonwealth v.
Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995); Commonwealth v.
Patterson, 940 A.2d 493, 498-499 (Pa. Super. 2007).

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      “In the context of criminal proceedings, it is well-settled that an order

of restitution is not simply an award of damages, but, rather, a sentence.”

Commonwealth v. McKee, 38 A.3d 879, 880–881 (Pa. Super. 2012)

(quotations and citations omitted). Further, as our Supreme Court has held,

“restitution is a creature of statute and, without express legislative direction,

a court is powerless to direct a defendant to make restitution as part of a

sentence.” Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992).

      Regarding challenges to the imposition of restitution, we have held:

        the appellate courts have drawn a distinction between those
        cases where the challenge is directed to the trial court's
        [statutory] authority to impose restitution and those cases
        where the challenge is premised upon a claim that the
        restitution order is excessive. When the court's authority to
        impose restitution is challenged, it concerns the legality of
        the sentence; however, when the challenge is based on
        excessiveness, it concerns the discretionary aspects of the
        sentence.

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006); see also

In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when an issue

“centers upon [the court's] statutory authority” to impose restitution, as

opposed to the “court's exercise of discretion in fashioning” restitution, the

issue implicates the legality of the sentence).

      On appeal, Appellant claims that the trial court lacked the statutory

authority to order him to pay restitution to the two business entities, Rite-Aid

and Walgreens. Appellant’s Brief at 11. This claim implicates the legality of

Appellant’s sentence.    See Oree, 911 A.2d at 173.           Since Appellant’s



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J-A21021-19



challenge goes to the legality of his sentence, “our standard of review

[regarding his challenge] is de novo and our scope of review is plenary.”

Commonwealth v. Saunders, 946 A.2d 776, 787 n.12 (Pa. Super. 2008).

       In this case, the trial court imposed restitution as a part of Appellant's

direct sentence, in accordance with 18 Pa.C.S.A. § 1106.          See Trial Court

Opinion, 1/22/19, at 1-4. In relevant part, at the time Appellant committed

his crimes, Section 1106(a) read:

         (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 . . . the offender shall be sentenced to
         make restitution in addition to the punishment prescribed
         therefor.

                                           ...

         (c) Mandatory restitution.—

              (1) The court shall order full restitution:

                  (i) Regardless of the current financial resources of the
                  defendant, so as to provide the victim with the fullest
                  compensation for the loss. . . .

18 Pa.C.S.A. § 1106 (effective January 31, 2005 to October 23, 2018).4



____________________________________________


4On October 24, 2018, the legislature amended Section 1106. Nevertheless,
as we have held, the amendments are not retroactive.          See, e.g.,
Commonwealth v. Hunt, 220 A.3d 582, 586 (Pa. Super. 2019) (“[w]e
decline to give retroactive effect to the October 24, 2018 amendments to
§ 1106”).




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J-A21021-19



       The term “property,” as used in Section 1106, means “[a]ny real or

personal property, including currency and negotiable instruments, of the

victim.” 18 Pa.C.S.A. § 1106(h) (emphasis added).5 Given that the term

“property” refers to the personal property of “the victim,” we must examine

the definition of the term “victim” to determine whether the currency taken

by Appellant in this case can properly be the subject of a restitution order

issued pursuant to Section 1106.

       At the time of the crimes, Section 1106(h) declared that the definition

of the term “victim” was: “[as that term is] defined in section 479.1 of the

act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of

1929.” 18 Pa.C.S.A. § 1106(h) (effective January 31, 2005 to October 23,

2018). Prior to its repeal, Section 479.1 defined the term “victim,” in relevant

part, as: “[a] person against whom a crime is being or has been perpetrated

or attempted.” See Commonwealth v. Holmes, 155 A.3d 69, 80 (Pa. Super.

2017) (en banc) (opinion in support of affirmance).

____________________________________________


In this case, Appellant committed his offenses in 2017 – prior to the effective
date of the amendments. Thus, in this appeal, we apply the version of Section
1106 that existed at the time Appellant committed his offenses.

5 The Commonwealth argues that Section 1106(a) does not require a “victim”
when property is stolen. See Commonwealth’s Brief at 12-13. However,
since the term “property,” as used in Section 1106, means “[a]ny real or
personal property, including currency and negotiable instruments, of the
victim,” the Commonwealth’s argument is meritless. 18 Pa.C.S.A. § 1106(h)
(emphasis added).




                                           -7-
J-A21021-19



        Nevertheless, as we have explained: “the definition of ‘victim’ set forth

in the Administrative Code of 1929 was itself repealed in 1998, and the

operative definition of the term ‘victim’ under the Crime Victims Act (‘CVA’) at

18 P.S. § 11.103 took its place.” Commonwealth v. Hunt, 220 A.3d 582,

588-589 (Pa. Super. 2019). As is relevant to the case at bar, the CVA defines

a “victim” as “[a] direct victim.”6 18 P.S. § 11.103. The CVA then defines a

____________________________________________


6   The CVA defines a “victim” as:

          (1) A direct victim.

          (2) A parent or legal guardian of a child who is a direct victim,
          except when the parent or legal guardian of the child is the
          alleged offender.

          (3) A minor child who is a material witness to any of the
          following crimes and offenses under 18 Pa.C.S. (relating to
          crimes and offenses) committed or attempted against a
          member of the child's family:

              Chapter 25 (relating to criminal homicide).

              Section 2702 (relating to aggravated assault).

              Section 3121 (relating to rape).

          (4) A family member of a homicide victim, including
          stepbrothers or stepsisters, stepchildren, stepparents or a
          fiance, one of whom is to be identified to receive
          communication as provided for in this act, except where the
          family member is the alleged offender.

18 P.S. § 11.103.

Obviously, neither Rite-Aid nor Walgreens is “a parent or legal guardian,” “a
minor child,” or “a family member of a homicide victim.” Therefore, we will



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J-A21021-19



“direct victim” as: “[a]n individual against whom a crime has been committed

or attempted and who as a direct result of the criminal act or attempt suffers

physical or mental injury, death or the loss of earnings under this act.” Id.

       In Hunt, this Court held that the definition of “victim” in Section 479.1

of the Administrative Code of 1929 and Section 11.103 of the CVA are not

“similar enough so as to render them interchangeable” – and, thus, the

definition of “victim” in Section 479.1 of the Administrative Code of 1929 did

not survive the 1998 repeal.          Hunt, 220 A.3d at 589; see also 18 P.S.

§ 11.5102 (declaring that the CVA “is a codification of the statutory provisions

repealed in section 5103 and, except where clearly different from current law,

shall be deemed to be a continuation of prior law”); 1 Pa.C.S.A. § 1962

(“[w]henever a statute is repealed and its provisions are at the same time

reenacted in the same or substantially the same terms by the repealing

statute, the earlier statute shall be construed as continued in active

operation”). Therefore, in Hunt, this Court held that “the definition of ‘victim’

under the CVA that entered force in 1998 is the sole definition for our purposes

under § 1106.” Hunt, 220 A.3d at 590.

       As applied to the case at bar, the only way the trial court had statutory

authority to order Appellant to pay Rite-Aid and Walgreens restitution for the

stolen property is if the court determined that those business entities fell

____________________________________________


only discuss whether the corporations qualify as “direct victims” under the
CVA.


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J-A21021-19



under the CVA’s definition of the term “direct victim.” However, in Hunt, this

Court specifically held that “the definition of ‘direct victim’ under the CVA (and,

consequently, the definition of ‘victim’ under the pre-amendment version of

§ 1106) does not include corporate entities.”        Id. at 591.    Therefore, in

accordance with Hunt, we conclude that the trial court did not have statutory

authority to sentence Appellant to pay restitution to Rite-Aid and Walgreens,

that this portion of Appellant’s sentence is illegal, and that Appellant’s

judgment    of   sentence    must,    therefore,   be   vacated.       See    also

Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa. Super. 2017) (“[o]ur

cases clearly state that a criminal defendant cannot agree to an illegal

sentence, so the fact that the illegality was a term of his plea bargain is of no

legal significance”) (quotations and citations omitted).

      Further, although Appellant maintains otherwise, the restitution portion

of Appellant’s sentence was clearly part of the negotiated plea in this case. To

be sure, the written guilty plea form expressly declares that, in exchange for

Appellant’s pleas of guilty, the Commonwealth would recommend: a sentence

of ten to 20 years in prison for the first robbery count, plus restitution to

Rite-Aid in the amount of $4,199.67; a concurrent sentence of ten to 20 years

in prison on the second robbery count, plus restitution to Walgreens in the

amount of $2,901.00; and, a concurrent sentence of two to 20 years in prison

on the burglary count. Written Guilty Plea Form, 8/13/18, at 3-4. The trial

court accepted Appellant’s guilty plea and sentenced Appellant in accordance

with the negotiated terms. Therefore, our vacation of the restitution portion

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J-A21021-19



of Appellant’s sentence fundamentally strips the Commonwealth of the benefit

of its bargain. This requires that we vacate Appellant’s guilty plea and return

the case to its status prior to the entry of Appellant’s guilty plea. Indeed, this

aspect of the case is controlled by our opinion in Commonwealth v.

Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015).

      In Melendez-Negron, Melendez-Negron was charged with a variety of

drug-related crimes.     In accordance with a negotiated plea agreement,

Melendez-Negron pleaded guilty to possession of a controlled substance with

the intent to deliver (“PWID”) and, on November 15, 2013, the trial court

sentenced him to serve a term of five to ten years in prison, pursuant to the

mandatory minimum sentencing statute found at 42 Pa.C.S.A. § 9712.1. Id.

at 1089.

      Melendez-Negron did not file a direct appeal from his judgment of

sentence. However, Melendez-Negron filed a timely PCRA petition, where he

claimed that “his sentence was unconstitutional, and therefore illegal, in light

of [Alleyne v. United States, 570 U.S. 99 (2013)].” Id. Melendez-Negron

requested that the PCRA court vacate his sentence and remand the case for

resentencing; he did not request that the PCRA court permit him to withdraw

his guilty plea. Id. at 1091 n.7.

      The PCRA court granted Melendez-Negron’s PCRA petition, vacated his

sentence, and remanded the case for resentencing. The Commonwealth filed

a notice of appeal and claimed, among other things, that the PCRA court erred

when it merely vacated Melendez-Negron’s sentence and remanded the case

                                     - 11 -
J-A21021-19



for resentencing. Id. at 1090. According to the Commonwealth, if the PCRA

court were going to grant Melendez-Negron relief, the PCRA court was

required to vacate Melendez-Negron’s entire guilty plea and “return[ the case]

to the status quo prior to the entry of the guilty plea.” Id. at 1091. As the

Commonwealth argued: “in consideration of agreeing to a five-to-ten-year

period of incarceration, [the Commonwealth] gave up the opportunity to seek

sentences on the drug paraphernalia and small amount of marijuana charges.

By simply allowing resentencing pursuant to the sentencing guidelines, the

Commonwealth . . . [lost] the benefit of its bargain.” Id. at 1092 (quotations

and citations omitted).

      We agreed with the Commonwealth and concluded that – even though

Melendez-Negron did not request that his guilty plea be vacated – the PCRA

court erred when it failed to vacate the entirety of Melendez-Negron’s guilty

plea and restore the case to its status prior to the entry of the guilty plea. Id.

at 1091-1092.

      Within our opinion, we analogized the case to our prior opinions in

Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002) and

Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002).                 In both

Hodges and Lenhoff, the defendants, the Commonwealth, and the trial court

judges were all under the mistaken belief that the defendants were subject to

more severe statutory maximum sentences than that which the trial court had

the authority to impose.       See Hodges, 789 A.2d at 765 (the parties

mistakenly believed that the defendant was subject to the death penalty

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J-A21021-19



when, “because of [the defendant’s] age, the death penalty was never

applicable”); Lenhoff, 796 A.2d at 342-343 (the parties mistakenly believed

that the defendant committed a second-degree felony, when the defendant

actually committed a third-degree felony).       The defendants then pleaded

guilty in order “to avoid [a] sentence . . . [that] the [trial] court did not have

the legal authority to impose.” Lenhoff, 796 A.2d at 342-343. As we held in

both Hodges and Lenhoff, the defendants were entitled to withdraw their

guilty pleas, as “[t]he entire process of [the] plea negotiations . . . was

affected by [the] . . . [statutory maximum sentencing calculation] error.”

Hodges, 789 A.2d at 767.

      Utilizing this precedent, the Melendez-Negron Court held:

        This case is fundamentally akin to Hodges and Lenhoff;
        where it differs is that it is the Commonwealth, not the
        defendant, who argues that it is being deprived of the benefit
        of its bargain. We see no reason why the rationale of Hodges
        and Lenhoff should be limited to criminal defendants.
        Indeed, both parties to a negotiated plea agreement are
        entitled to receive the benefit of their bargain.           See
        Commonwealth v. Townsend, 693 A.2d 980, 983 (Pa.
        Super. 1997) (“[W]here the parties have reached a specific
        sentencing agreement . . . the court cannot later modify the
        terms of the agreement without the consent of the
        Commonwealth” because this would deny the Commonwealth
        the full benefit of the agreement which it reached . . . and
        the defendant, in turn, would receive a windfall.”);
        Commonwealth v. Coles, 530 A.2d 453 (Pa. Super. 1987)
        (holding that granting defendant’s motion to modify
        negotiated plea sentence stripped Commonwealth of the
        benefit of its bargain). . . . Accordingly, we conclude that the
        shared misapprehension that the mandatory minimum
        sentence required by [42 Pa.C.S.A. § 9712.1] applied to
        Melendez–Negron tainted the parties’ negotiations at the
        outset. As in Hodges and Lenhoff, the parties’ negotiations

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J-A21021-19


        began from an erroneous premise and therefore were
        fundamentally skewed from the beginning. Thus, while we
        affirm the PCRA court’s order vacating Melendez–Negron’s
        sentence, we further vacate his guilty plea and remand for
        further proceedings.

Melendez-Negron, 123 A.3d at 1093-1094.

      The same is true in the case at bar. In this case, Appellant and the

Commonwealth         entered   into     plea     negotiations   under   “the     shared

misapprehension” that Appellant could lawfully be sentenced to pay restitution

to Rite-Aid and Walgreens. Id. This misapprehension “tainted the parties’

negotiations    at    the    outset.”          Id.     Therefore,   consistent     with

Melendez-Negron, we conclude that – since “the parties’ negotiations began

from [the] erroneous premise” that Appellant could be sentenced to pay

restitution to the corporate entities – we must vacate Appellant’s guilty plea

and restore the case to its status prior to the entry of the plea. Id.

      Judgment of sentence vacated. Guilty plea vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/20




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