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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 1997) (unpublished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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