J-S54025-18
2019 PA Super 62
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN D. TANNER :
:
Appellant : No. 211 WDA 2018
Appeal from the PCRA Order January 23, 2018
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000060-2015,
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED FEBRUARY 27, 2019
Brian D. Tanner (Appellant) appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm in part, and reverse and vacate in part.
In January 2015, Appellant, the former secretary-treasurer of Shenango
Township (Township), Lawrence County, was charged with dealing with
proceeds of unlawful activities, conspiracy to commit dealing with proceeds of
unlawful activities, forgery, corrupt organizations, access device fraud, and
theft by unlawful taking or disposition. The charges arose from Appellant’s
alleged receipt of unauthorized compensation in the amount of $650,000, in
addition to his W-2 salary, as well as his alleged unauthorized credit card
purchases using the Township’s credit card. Prior to trial, Appellant filed a
motion for change of venue, claiming that because of the immense media
coverage, he would be denied a fair and impartial trial in Lawrence County.
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After a hearing held on July 9, 2015,1 the court denied Appellant’s motion
without prejudice.
The case proceeded to trial, and following direct examination of the
Commonwealth’s third witness, affiant Lawrence County Detective Vincent
Martwinski, Appellant decided to enter a negotiated guilty plea to seven counts
of forgery,2 three counts of theft by unlawful taking or disposition,3 and two
counts of access device fraud.4 On April 6, 2016, the Honorable Dominick
Motto, sitting as the trial court, accepted the Commonwealth’s
recommendation, and imposed a sentence of 2½ to 5 years of incarceration,
five years of probation, and $449,000 in restitution ($330,000 to be paid to
Shenango Township and $119,000 to be paid to Selective Insurance Company,
the Township’s bonding company).
Appellant neither filed post-sentence motions nor a direct appeal. On
April 12, 2017, Appellant filed a timely pro se PCRA petition; counsel was
appointed and filed an amended petition. On September 26, 2017, the trial
court held an evidentiary hearing, and on November 1, 2017, held oral
argument on the petition. On January 23, 2018, the PCRA court denied
____________________________________________
1At the hearing, the trial court accepted exhibits of newspaper articles (which
are included in the certified record on appeal) and ordered the parties to
submit briefs in advance of the court’s disposition.
2 18 Pa.C.S.A. § 4101.
3 18 Pa.C.S.A. § 3921.
4 18 Pa.C.S.A. § 4106.
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Appellant’s petition. Appellant filed a timely notice of appeal and court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.
Appellant presents the following issues for our consideration:
(1) Did the PCRA [c]ourt commit error in denying Appellant
relief in the form of a new trial on the basis of ineffective
assistance of trial/guilty plea counsel, which as a result of
puffery, lack of investigation/preparation, and competent
strategy, induced him to enter a guilty plea [with
substantial restitution component] to a crime he did not
commit?
(2) Did the PCRA [c]ourt commit error in denying Appellant
relief in the form of a new trial on the basis of ineffective
assistance of trial/guilty plea counsel, as a result of the
failure to appeal the denial of transfer of venue or to
request a change of venire?
(3) Did the PCRA [c]ourt commit error in denying Appellant
relief in the form of a new trial on the basis of ineffective
assistance of trial/guilty plea counsel, as a result of failure
to pursue dismissal on the basis of selective prosecution?
(4) Is the restitution component of Appellant’s [s]entence in
the amount of $330,000 to Shenango Township illegal
and does his sentence have to be vacated as a matter of
law as a result?
Appellant’s Amended5 Brief at 4.
The standard of review of an order denying a PCRA petition is whether
the PCRA court’s determination is supported by the record and free of legal
error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations
____________________________________________
5 On June 15, 2018, this Court granted Appellant’s motion to amend his
appellate brief to include an illegality of sentence issue as it related to the
restitution portion of his sentence. See Order, 6/15/18.
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and citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, [that his] conviction or
sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A.
§ 9543(a)(2)[.]” Id.
In his first issue, Appellant contends that the PCRA court erred in failing
to grant him a new trial, where counsel was ineffective for: inducing him to
plead guilty; failing to prepare him and witnesses for trial; never hiring
investigators or reviewing the video/audio recordings of the Commonwealth’s
potential witnesses; and advising him that his wife’s arrest was imminent if
he did not plead guilty. Appellant claims that he “was ready and willing to
prove his innocence at trial through cross-examination, third-party witnesses,
documents, and his own testimony, but was thwarted by his own counsel’s
failure to adequately investigate and prepare for his trial and/or to properly
advise/strategize with him pre-trial.” Appellant’s Amended Brief at 27.
Succinctly stated, Appellant asserts that “counsel’s lack of investigation,
preparation and coherent strategy clearly led to [his] abrupt guilty plea, mid-
trial.” Id. at 29. After careful review of the parties’ briefs, the relevant case
law and the certified record, we agree with the PCRA court’s determination
that counsel was not ineffective for the above-enumerated reasons. We rely
upon the opinion, authored by Judge Motto, in affirming the denial of post-
conviction relief on these ineffectiveness of counsel issues. See PCRA Court
Opinion, 1/23/18, at 29-33 (counsel properly prepared for trial where he met
with Appellant on several occasions to review discovery, counsel explained
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discovery to Appellant, provided Appellant with opportunity to review
discovery on his own, counsel spoke with former Shenango Township
Supervisor and Appellant’s father-in-law, counsel formulated defense after
conversing with Appellant, counsel spoke with Appellant during all trial
recesses, including lunch time, to discuss aspects of trial; counsel’s failure to
subpoena witnesses would not have prevented them from testifying at trial
where counsel had spoken with those witnesses and they were willing to testify
on Appellant’s behalf if necessary; Appellant’s fatherin-law had been issued
a subpoena by the Commonwealth which ensured his attendance; counsel had
sufficient time to issue other subpoenas if necessary for trial; and other
witnesses counsel wished to call were on Commonwealth’s list and would be
available for trial); id. at 42-45 (Appellant signed written guilty plea
acknowledging he understood nature of charges, including elements of
offenses, was aware of maximum legal sentence, understood right to jury trial,
knew that Commonwealth’s sentencing recommendation was not binding upon
court, Appellant confirmed he entered guilty plea of own free will and without
coercion, had opportunity to review written colloquy with counsel, and
Appellant acknowledged it had been adequately explained to him and he was
satisfied with counsel’s representation; Appellant’s on-the-record colloquy,
during which he never voiced an objection, indicated he understood the nature
of charges and admitted to factual bases for charges, was aware of right to
jury trial and presumption of innocence, was advised of permissible sentence
ranges, knew court not bound by sentence recommendation, was satisfied
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with counsel’s representation and that counsel had addressed any questions
he had).
In his next issue, Appellant contends that counsel was ineffective for
failing to appeal the court’s decision to deny, without prejudice, his request to
transfer venue due to negative pre-trial publicity, or to request a change of
venire.
We first note that the mere existence of pre-trial publicity does not
warrant a presumption of prejudice. Commonwealth v. Chambers, 685
A.2d 96, 103 (Pa. 1996). “Our inquiry must focus upon whether any juror
formed a fixed opinion of the defendant’s guilt or innocence as a result of the
pre-trial publicity.” Commonwealth v. Marinelli, 690 A.2d 203, 213 (Pa.
1997) (quotation omitted). Normally, what prospective jurors tell us about
their ability to be impartial will be a reliable guide to whether the publicity is
still so fresh in their minds that it has removed their ability to be objective.
Commonwealth v. Briggs, 12 A.3d 291, 314 (Pa. 2011). The discretion of
the trial judge is given wide latitude in this area. Id.
For pre-trial publicity to be presumptively prejudicial, a defendant must
prove, inter alia, “that the publicity [was] so extensive, sustained, and
pervasive without sufficient time between publication and trial for the
prejudice to dissipate, that the community must be deemed to have been
saturated.” Commonwealth v. Rucci, 670 A.2d 1129, 1141 (Pa. 1996). The
publicity must be so inflammatory and slanted toward conviction “rather than
factual and objective.” Marinelli, 690 A.2d at 213 (quotation omitted).
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“Finally, even if there has been inherently prejudicial publicity which has
saturated the community, no change of venue is warranted if the passage of
time has sufficiently dissipated the prejudicial effects of the publicity.”
Chambers, 685 A.2d at 103.
With regard to the denial of Appellant’s pre-trial motion to change
venue, we note that the trial court’s denial was entered without prejudice with
a right to re-file in the event that the selection of the jury revealed a difficulty
or impossibility to seat a fair and impartial jury. Thus, whether counsel was
ineffective for failing to file an interlocutory appeal of the denial of Appellant’s
motion must be viewed in light of the entire procedural backdrop of the case
- namely, the fact that the court left open the option for Appellant to re-file
his motion if an impartial jury became an impossibility at the time of voir dire.
Appellant specifically alleges that the pre-trial publicity in the local
Lawrence County newspaper and on local television stations was “extensive
and adverse.” Appellant’s Amended Brief at 35. He claims that “[i]t would
appear that [it] would have been a competent and effective strategy” to
appeal the denial of his motion to change venire and that counsel was
ineffective for failing to do so. Id. However, Appellant qualifies this statement
with the claim that the additional time he would have gained from an appeal
would have allowed counsel to better prepare him for trial and to gain a better
understanding of issues surrounding the prosecution of Appellant’s potential
co-defendant, the Township’s auditor, Deno Delorenzo. Such assertions,
however, fall short of establishing the pervasiveness and sustained negative
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publicity required to change or transfer venue of a case. Rucci, 670 A.2d at
1141.
Having viewed the newspaper articles attached to his motion to transfer
venue, we cannot say that they contained information that actually prejudiced
Appellant or that they were so presumptively prejudicial that he could not
have received a fair trial. See Commonwealth v. Casper, 392 A.2d 287
(Pa. 1978) (to determine whether publicity precludes fair trial, courts look to
whether pre-trial publicity was factual and objective or if it consisted of
sensational, inflammatory and slanted articles). The local articles contained
factual accounts of circumstances surrounding the investigation into
Appellant’s alleged criminal dealings. Appellant states in his brief that due to
the newspaper coverage the jury “could not have had a positive viewpoint of
[Appellant].” Appellant’s Amended Brief at 37.
Again, this assertion does not fulfill Appellant’s burden of proving that a
change of venue was required as a result of “extensive, sustained, and
pervasive” pretrial publicity. First, eleven months passed from the time of the
latest article (dated March 2015) until Appellant’s trial in February 2016. See
Commonwealth v. Walter, 119 A.3d 255 (Pa. 2015) (change of venue
properly denied where 11-month period between last publicity and trial was
sufficient to dispel prejudice; even where inflammatory or inculpatory publicity
is disseminated in sustained fashion and pervasively throughout community,
where that publicity is followed by “cooling off” period sufficient to dissipate
prejudicial effect, change of venue is unnecessary). Second, the court asked
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each potential juror whether he or she was aware of the case as a result of
pre-trial publicity and, if so, whether that publicity would cloud his or her
judgment in rendering a fair and impartial verdict in the case. Of the potential
jurors that had been exposed to the pre-trial publicity in the case, only two
stated that he or she could not be completely objective. As a result, they
were struck for cause. See N.T., 2/16/16, at 144; N.T., 2/17/16, at 57.
Moreover, in an abundance of caution, the court struck a third juror for
cause, even though he indicated he could be fair and unbiased, because he
had had conversations about the case with potential trial witnesses. See N.T.,
2/16/16, at 103.
Looking at the entire record, we cannot say that counsel was ineffective
for failing to file an interlocutory appeal where the question of the jury’s
impartiality had not yet been determined, and there remained a possibility of
Appellant re-filing a motion to change venue. See Trial Court Order, 9/4/15,
at 1 (court noted that although pre-trial publicity was extensive in case, it has
been objective and related generally to progress of case through court system
procedurally or involving issues brought before Township Board of Supervisors
only collaterally related to charges in case). We also find that counsel was
not ineffective for failing to file a motion for change of venire where the court
determined that the impaneled jury could be fair and impartial, after
conducting an extensive and thorough voir dire process and striking for cause
those jurors who had been exposed to pre-trial publicity and could not be
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objective and impartial. See 42 Pa.C.S.A. § 8702 (impaneling jury from
another county).
Next, Appellant asserts that counsel was ineffective for failing to move
to dismiss the case on the basis of selective prosecution. At trial, Appellant’s
defense rested largely on his claim that the unauthorized payments had been
approved by Delorenzo and that he had trusted Delorenzo to report the correct
1099 disclosures for compensation purposes. Appellant also contends that
the Township Sewer Secretary, Mary Gay, was paying herself above and
beyond her salary and was not prosecuted.
In Commonwealth v. Murphy, 795 A.2d 997 (Pa. Super. 2002), we
explained that to establish a prima facie case of selective prosecution:
a defendant must establish, first, that others similarly situated
were not prosecuted for similar conduct, and, second, that the
Commonwealth’s discriminatory prosecutorial selection was based
on impermissible grounds such as race, religion, the exercise of
some constitutional right, or any other such arbitrary
classification. The burden is on the defense to establish the claim;
it is error to shift the burden to the prosecution to establish or
refute the claim. Because of the doctrine of separation of powers,
the courts will not lightly interfere with an executive’s decision of
whom to prosecute.
Id. at 1000 (emphasis added).
We agree with the PCRA court that the evidence at trial was insufficient
to establish a claim of selective prosecution where neither Delorenzo nor Gay
had the authority to write themselves checks or had access to signature
stamps to do so. Moreover, Appellant did not show how the Commonwealth’s
prosecution was based on impermissible grounds such as race, religion or
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some other arbitrary classification. In fact, evidence was introduced that the
impermissible Township payments were discovered by an independent state
agency (the Pennsylvania Auditor General) and there did not appear to be a
political or improper motive in alleging the criminal activity. Finally, Appellant
was aware that his cooperation would be necessary to prosecute Delorenzo;
by failing to accept his own responsibility for the criminal activity, Appellant
prevented the Commonwealth from proceeding on any criminal prosecution of
Delorenzo. Under such circumstances, Appellant’s claim lacks merit.
In his fourth and final issue, Appellant asserts that “the restitution
portion of his sentence to Shenango Township in the amount of $330,000 is
illegal and must be vacated” because the Township is not a “victim” under our
Commonwealth’s restitution statute, 18 Pa.C.S.A. § 1106(a). 6 Appellant’s
Amended Brief at 42. Appellant cites the Pennsylvania Supreme Court’s
decision in Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016), which held
that a restitution order directing payment to a Commonwealth agency as the
“victim” of a crime under Section 1106 was illegal because the Commonwealth
was not a victim as that term is used in Section 1106 of the Crimes Code, nor
had it directly or indirectly reimbursed a victim as defined by Section 11.103
of the Crime Victims Act.
____________________________________________
6 Although Appellant did not raise this issue before the PCRA court, legality of
sentence issues are always subject to review if the PCRA petition is timely
filed. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
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The statute governing restitution for injuries to person or property, 18
Pa.C.S.A. § 1106, provides in relevant part:
(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, or wherein the victim suffered personal
injury directly resulting from 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. The court shall not reduce
a restitution award by any amount that the victim has
received from the Crime Victim’s Compensation Board
or other governmental agency but shall order the
defendant to pay any restitution ordered for loss
previously compensated by the board to the Crime
Victim’s Compensation Fund or other designated
account when the claim involves a government
agency in addition to or in place of the board. The
court shall not reduce a restitution award by any
amount that the victim has received from an
insurance company but shall order the defendant to
pay any restitution ordered for loss previously
compensated by an insurance company to the
insurance company.
(ii) If restitution to more than one person is set at the
same time, the court shall set priorities of payment.
However, when establishing priorities, the court shall
order payment in the following order:
(A) The victim.
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(B) The Crime Victim’s Compensation Board.
(C) Any other government agency which has
provided reimbursement to the victim as a
result of the defendant's criminal conduct.
(D) Any insurance company which has provided
reimbursement to the victim as a result of the
defendant’s criminal conduct.
18 Pa.C.S.A. § 1106(a) & (c). Victim is defined under Section 1106 as:
“Victim.” As defined in section 479.1 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
The term includes the Crime Victim’s Compensation Fund if
compensation has been paid by the Crime Victim’s Compensation
Fund to the victim and any insurance company that has
compensated the victim for loss under an insurance contract.
18 Pa.C.S.A. § 1106(h) (defining “victim”) (repealed Oct. 24, 2018, P.L. 891,
No. 145, § 1, effective Jan. 31, 2005).7
Likewise, the Crime Victims Act, 18 P.S. § 11.103, defines “victim”:
(1) A direct victim
(2) A parent of legal guardian of a child who is a direct victim,
except when the parent or legal guardian of the child is the
alleged offender.
____________________________________________
7 Because the events that led to Appellant’s conviction occurred before
October 24, 2018, this version of the statute applies. Section 1106(h) was
subsequently updated and now defines “victim”:
As defined in section 103 of the act of November 24, 1998 (P.L.
882, No. 111), known as the Crime Victims Act. The term includes
an affected government agency, the Crime Victim’s Compensation
Fund, if compensation has been paid by the Crime Victim’s
Compensation Fund to the victim, any insurance company that
has compensated the victim for loss under an insurance contract
and any business entity.
18 Pa.C.S.A. § 1106(h) (footnote omitted).
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(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. . .
(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 (1)-(4). “Direct victim” is defined in Section 11.103, in
pertinent part, as:
An 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. The term shall not include the alleged offender.
Id. (emphasis added).
Appellant asserts that his restitution sentence payable to Shenango
Township is illegal based on the Pennsylvania Supreme Court’s holding in
Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016). In Veon, the appellant
was a member of the Pennsylvania House of Representatives and used money
he was entitled to in his capacity as a Representative to fund his non-profit
corporation. A jury convicted appellant of theft by unlawful taking, theft by
failure to make required disposition of funds received, and misapplication of
entrusted property and property of government or financial institutions. Id.
at 451. The trial court sentenced appellant to incarceration, intermediate
punishment, and restitution to the Pennsylvania Department of Community
and Economic Development (DCED). On appeal, this Court affirmed the
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judgment of sentence in part, upheld the restitution as to certain counts, and
vacated as to others. See Commonwealth v. Veon, 109 A.3d 754 (Pa.
Super. 2015).
Mr. Veon filed a timely petition for allowance of appeal to the
Pennsylvania Supreme Court, which the Supreme Court granted on August
20, 2015. In addressing Mr. Veon’s challenge to his sentence of restitution,
the Court explained:
Notwithstanding any legislative expansion of the definition of
“victim,” it is clear that the plain text of Section 11.103 still
envisages “victims” as “persons” commonly understood. A
“victim” under Section 11.103 must be “a direct victim,” i.e., an
“individual who has suffered injury, death, or loss of earnings; or
a “child,” “parent,” “guardian,” or “family member.” Every
relevant noun unequivocally describes a human being, not a
government agency, and nowhere else is there a relevant
definition that persuades us to broaden the common
understanding of these words. There can be no serious doubt that
DCED, the agency designated to receive the restitution ordered in
this case, does not qualify as a direct victim. And neither, of
course, is DCED a parent, guardian, child or family member of a
homicide victim. Although Subsection 1106(c)(1)(i)’s provisions
regarding “victims” and “other government agenc[ies]” reveals
that the General Assembly intended that restitution reach certain
Commonwealth agencies in a manner that did not depend upon
identifying such agencies as “victims,” it nonetheless required first
that the agency in question have provided compensation to a
victim so defined. That is what necessitates our determination
that DCED is not entitled to restitution in this case.
In short, to qualify for restitution under Subsection 1106(c)(1)(i),
a Commonwealth agency either must be a victim as that term is
used in that subsection or must have reimbursed a victim[,] as
defined by Section 11.103, directly or by paying a third party on
behalf of the victim. . . .
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Veon, 150 A.3d at 454 (emphasis added); see also Commonwealth v.
Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018) (“It is well-established that
the Commonwealth is not a victim entitled to restitution.”). As such, our
Supreme Court held that the restitution was illegal and vacated Mr. Veon’s
judgment of sentence.
Likewise, in the instant matter, pursuant to the reasoning in Veon,
Shenango Township is not a “victim” under Section 1106(c)(1)(i), nor an
entity that has reimbursed a victim, either directly or indirectly, as defined by
Section 11.103.8 See Veon, 150 A.3d at 454-55. Accordingly, we are
constrained to conclude that Appellant’s restitution to Shenango Township is
illegal and, therefore, void and unenforceable.
Although not raised by Appellant on appeal, we examine whether
Appellant is obligated to pay $119,000 in restitution to Selective Insurance
Company. Recognizing that an award of restitution relates to the legality of a
sentence, we note that legality of sentence issues “may be reviewed sua
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8 While this Court has not analyzed whether a township per se is a victim
entitled to restitution under Section 1106, we note that a township is one
entity that is regarded as a political subdivision of a Commonwealth. See 1
Pa.C.S.A. § 1991 (“A political subdivision is “[a]ny county, city, borough,
incorporated town, township, school district, vocational school district,
county institution district or municipal or other local authority.”). In many
provisions of the Pennsylvania Code, the Commonwealth and political
subdivisions are treated similarly. See 246 Pa. Code 312; see also 231 Pa.
Code 3159. Thus, we have used case law interpreting whether the
Commonwealth is a victim for purposes of Section 1106 to analyze the instant
issue involving a township.
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sponte by this Court.” Commonwealth v. Stradley, 50 A.3d 769, 774 (Pa.
Super. 2012) (citation omitted).
An insurance company is only entitled to restitution if it is a victim as
defined by Section 11.103, or it has compensated a victim for loss under
Section 1106. See 18 Pa.C.S.A. § 1106(c)(1)(ii)(D); 18 P.S. § 11.103. As
stated above in the context of a government agency, Section 11.103 defines
a “victim” as an individual who has been harmed by the offender. 18 P.S. §
11.103. Just as a government agency is not entitled to restitution because it
is neither an individual victim nor has it compensated an individual victim, an
insurance company is not entitled to restitution if it is not an individual victim
- which it is not - or it has not compensated an individual victim. Stated
plainly, an insurance company is entitled to receive restitution only when it
compensates a victim. Because we have determined that the Township is not
a victim, Selective Insurance Company could not have compensated the
Township as a victim. Thus, Appellant’s restitution to Selective Insurance
Company is also illegal and unenforceable.
The Commonwealth counters Appellant’s claim that his restitution is
illegal by asserting that “the restitution component of [Appellant’s] sentence
was the product of a specific, negotiated term of a plea agreement between
the Commonwealth and [Appellant].” Commonwealth’s Brief at 28. The
Commonwealth emphasizes that in exchange for Appellant agreeing to pay
restitution, which represented the full amount of stolen funds, the
Commonwealth compromised by offering Appellant a significantly lesser
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sentence of incarceration than he would have been exposed to had a jury
convicted him of the charged offenses. Id. at 31. The Commonwealth
maintains that “[a]s a matter of fundamental fairness, specific enforcement of
the terms of the plea bargain in this case is required. . . .” Id. at 32.
We are not persuaded by the Commonwealth’s argument that because
this matter involves a negotiated plea agreement, specific performance of the
plea’s terms should be enforced irrespective of our Supreme Court’s holding
in Veon. Importantly, the Commonwealth’s argument fails to recognize that
Appellant’s restitution claim implicates a legality of sentence issue. While it is
imperative to enforce a contract between two parties, it is also well-settled
law that a contract with an illegal term is void and unenforceable. Fowler v.
Scully, 72 Pa. 456, 467 (1872). “[I]llegality is a traditional, generally
applicable contract defense.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1645 (2018). Even in the civil context, “an agreement that cannot be
performed without violating a statute is illegal and will not be enforced.”
Rittenhouse v. Barclay White Inc., 625 A.2d 1208, 1211 (Pa. Super. 1993)
(citing Dippel v. Brunozzi, 74 A.2d 112 (Pa. 1950)).
Having determined that the restitution component of Appellant’s
sentence is illegal, we must determine the appropriate remedy. Finding this
case analogous to our decision in Commonwealth v. Melendez-Negron,
123 A.3d 1087 (Pa. Super. 2015), we are compelled to vacate Appellant’s
guilty plea in its entirety.
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In Melendez–Negron, the appellant was charged with a variety of
drug-related crimes. Pursuant to a negotiated plea agreement, the appellant
pled guilty to possession with intent to deliver, and on November 15, 2013,
the trial court sentenced him to 5 to 10 years in prison, pursuant to the
mandatory minimum codified at 42 Pa.C.S.A. § 9712.1. Id. at 1089. The
appellant did not file a direct appeal. However, he filed a timely PCRA petition,
and claimed that “his sentence was unconstitutional, and therefore illegal, in
light of [Alleyne9].” Id. He requested that the PCRA court vacate his
sentence and remand the case for re-sentencing; he did not request that the
PCRA court permit him to withdraw his guilty plea. Id. at 1091 n.7.
The PCRA court granted Mr. Melendez–Negron’s PCRA petition, vacated
his sentence, and remanded for re-sentencing. The Commonwealth filed a
notice of appeal and claimed, inter alia, that the PCRA court erred when it
merely vacated the sentence and remanded for re-sentencing. Id. at 1090.
According to the Commonwealth, if the PCRA court was going to grant relief,
it had to vacate Mr. 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. 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
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9 Alleyne v. United States, 570 U.S. 99 (2013).
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Commonwealth . . . [lost] the benefit of its bargain.” Id. at 1092 (internal
quotations and citations omitted).
We agreed with the Commonwealth and concluded that—even though
Mr. Melendez–Negron did not request that his guilty plea be vacated—the
PCRA court erred when it failed to vacate the entire plea and restore the case
to its status prior to the entry of the plea. Id. at 1091–1092. We explained:
[B]oth 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. . . . [T]he parties’
negotiations 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 1093–94.
In this case, as with Melendez-Negron, Appellant and the
Commonwealth entered into plea negotiations under “the shared
misapprehension” that the Commonwealth was a victim entitled to restitution
under 18 Pa.C.S.A. § 1106. Id. This misapprehension “tainted the parties’
negotiations at the outset.” Id. Therefore, both Appellant and the
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Commonwealth are entitled to receive the benefit of their bargain, and we
conclude – because “the parties’ negotiations began from [the] erroneous
premise” that the Commonwealth was a victim under Section 1106 – the PCRA
court erred when it failed to grant relief on the issue of restitution. Id.
Accordingly, we vacate Appellant’s entire guilty plea and restore the case to
its status prior to the entry of the plea.
Order affirmed in part and reversed in part. Restitution sentence
vacated. Case remanded for proceedings consistent with this decision.
Jurisdiction relinquished.
Judge Panella joins the opinion.
Judge Lazarus files a concurring and dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2019
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