J-S69007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CRAIG E. MOSS,

                         Appellant                    No. 1210 MDA 2018


             Appeal from the PCRA Order Entered July 6, 2018
             In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0001036-1996


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:             FILED: JANUARY 3, 2019

     Appellant, Craig E. Moss, appeals pro se from the July 6, 2018 order

denying his “Motion to Vacate and Correct Illegal Sentence,” which the trial

court treated as an untimely petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part,

vacate in part, and remand for further proceedings.

     The facts of Appellant’s case are unnecessary to our disposition of his

present appeal. We need only note that on January 13, 1997, Appellant pled

nolo contendere to one count of arson, 18 Pa.C.S. § 3301(a)(1)(i). On March

5, 1997, the court sentenced him to 42 to 240 months’ incarceration, as well

as restitution in the amount of $81,535.51. Appellant filed a timely appeal,

and this Court affirmed his judgment of sentence on December 5, 1997. See

Commonwealth v. Moss, 706 A.2d 1256 (Pa. Super. 1997) (unpublished
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memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court and, thus, his judgment of sentence became final on

January 5, 1998. See 42 Pa.C.S. § 9545(b)(3) (directing that a judgment of

sentence becomes final at the conclusion of direct review or the expiration of

the time for seeking the review); Pa.R.A.P. 1113(a) (stating that “a petition

for allowance of appeal shall be filed with the Prothonotary of the Supreme

Court within 30 days of the entry of the order of the Superior Court sought to

be reviewed”).

      Between 1998 and 2005, Appellant filed six PCRA petitions, all of which

were denied.     Then, on September 29, 2017, he filed a pro se document

entitled, “Motion to Vacate and Correct Illegal Sentence,” which underlies the

present appeal. Therein, Appellant requested that the trial court modify or

vacate allegedly illegal aspects of his sentence of restitution under 18 Pa.C.S.

§ 1106. Additionally, Appellant averred that he was not given adequate credit

for time served prior to his sentencing hearing in March of 1997. Accordingly,

he requested that the court vacate his illegal sentence and conduct a new

sentencing hearing.

      The court treated this document as a PCRA petition and issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss it. Appellant filed a pro se

response, but on July 6, 2018, the PCRA court entered an order formally

dismissing his petition as being untimely filed. Appellant filed a timely, pro se

notice of appeal, and he also timely complied with the PCRA court’s order to




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file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

The court filed a Rule 1925(a) opinion on August 16, 2018.

      In his pro se brief to this Court, Appellant raises one question for our

review: “Dose [sic] the rule of stare decisis require the trial court to entertain

Appellant’s motion?”       Appellant’s Brief at 1 (unnecessary capitalization

omitted).

      Appellant contends that the trial court erred by treating his “Motion to

Vacate and Correct Illegal Sentence” as a PCRA petition.            According to

Appellant, this Court has “ruled that the [p]rovisions of 18 Pa.C.S.[] § 1106

[p]ermit[] a defendant to seek a modification or amendment of the restitution

order at any time directly from the trial [c]ourt.” Appellant’s Brief at 3. In

support, he relies on several cases, including Commonwealth v. Stradley,

50 A.3d 769 (Pa. Super. 2012). There, Stradley was sentenced on February

16, 2010, to a term of imprisonment and $7,900 in restitution. Id. at 771.

He did not file a post-sentence motion or a direct appeal; thus, Stradley’s

judgment of sentence became final in March of 2010. Id. at 771-72. Over

one year later - in April of 2011 - Stradley filed a motion challenging his

sentence of restitution.    Id. at 772.   The trial court dismissed Stradley’s

motion, and he appealed. Id.

      Initially, the Stradley panel clarified that the “underlying claim on

appeal challenges the legality of [Stradley’s] sentence….”        Id.   Next, we

examined “whether the trial court had jurisdiction to address [Stradley’s]

motion to vacate restitution, which was filed approximately fourteen months

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after [his] judgment of sentence was entered.” Id. In concluding that the

trial court did have jurisdiction, we explained:

      Section 1106 of the Crimes Code, which governs restitution for
      injuries sustained to person or property, provides in relevant part:

         (3) 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.

      18 Pa.C.S. § 1106(c)(3) [(emphasis added)]. This provision has
      been interpreted by our Court to permit a defendant to seek a
      modification or amendment of the restitution order at any time
      directly from the trial court. See Commonwealth v. Mitsdarfer,
      837 A.2d 1203 (Pa. Super. 2003) (holding that proper remedy for
      defendant requesting a reduction in the amount of restitution,
      entered following no contest plea to unauthorized use of an
      automobile, eleven months after judgment of sentence was
      entered, was through trial court, pursuant to 18 Pa.C.S. § 1106,
      and not PCRA; since statute afforded trial court authority to
      amend or alter restitution order at any time, defendant was not
      time-barred from filing an appropriate motion with the trial court).

Id. (emphasis in original). Thus, the Stradley panel did not treat the petition

challenging the legality of Stradley’s restitution as a PCRA petition but,

instead, as a motion under section 1106.

      Here, Appellant unequivocally sought modification of his restitution

amount under the authority of section 1106.         In light of Stradley and

Mitsdarfer, as well as the plain language of section 1106, we agree with

Appellant that the trial court erred by treating his restitution claim as


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cognizable under the PCRA and deeming it untimely. Accordingly, we vacate

the court’s order to the extent that it denied Appellant’s motion for restitution

modification, and we remand for the court to assess the merits of that issue.

However, we affirm the court’s order in regard to Appellant’s time-credit

claim.1

       Order affirmed in part, vacated in part.    Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/03/2019




____________________________________________


1 Appellant does not challenge the court’s denial of his time-credit claim on
appeal. Notwithstanding, the court clearly did not err in this regard. We have
deemed such legality-of-sentencing claims as cognizable under the PCRA.
See Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004). Thus,
Appellant’s attempt to raise this issue approximately 20 years after his
judgment of sentence became final is untimely, and he has made no effort to
plead or prove the applicability of any timeliness exception. See 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii) (directing that any PCRA petition must be filed within one
year of the judgment of sentence becoming final, unless the petitioner pleads
and proves the applicability of a timeliness exception). Accordingly, we affirm
the court’s order to the extent that it denied Appellant’s time-credit claim.

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