J-A07026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL R. VEON :
:
Appellant : No. 749 MDA 2019
Appeal from the Judgment of Sentence Entered November 19, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004274-2009
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 17, 2020
Appellant, Michael R. Veon, appeals from the November 19, 2018
Judgment of Sentence entered in the Court of Common Pleas of Dauphin
County following remand from the Pennsylvania Supreme Court for
resentencing. After careful review, we quash this appeal.
On March 5, 2012, a jury convicted Appellant of one count each of
Conflict of Interest and Criminal Conspiracy, and two counts each of Theft by
Unlawful Taking, Theft by Deception, Theft by Failure to Make Required
Disposition of Funds, and Misapplication of Entrusted Property. 1 On June 19,
2012, the trial court sentenced Appellant to a term of 12 to 48 months’
incarceration, followed by 48 months of intermediate punishment. The court
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1 65 Pa.C.S. § 1103(a); and 18 Pa.C.S. §§ 903(a), 3921(a), 3922(a)(1),
3927(a), and 4113(a), respectively.
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also sentenced Appellant to pay restitution to the Commonwealth of
Pennsylvania.
On November 22, 2016, the Pennsylvania Supreme Court, concluding
that the Commonwealth of Pennsylvania cannot be a “victim” under 18 Pa.C.S.
§ 1106, vacated Appellant’s sentence and remanded to the trial court for
resentencing.
The trial court held a resentencing hearing on November 19, 2018,
following which it reimposed Appellant’s original sentence of incarceration and
supervision and ordered Appellant to pay $19,000 in restitution. The certified
docket contains a docket entry reflecting that, on November 19, 2018, the
court ordered, inter alia, “$19,000 to be paid in [restitution.]” Docket Entry,
11/19/18.
The lower court clerk entered a Resentencing Order on the docket one
week later, on November 26, 2018. That Order confirmed the court’s
reimposition of Appellant’s June 19, 2012 sentence of incarceration and order
that Appellant pay restitution to the Pennsylvania Department of Community
and Economic Development (“DCED”) “as a condition of probation under 42
Pa.C.S.[] § 9754(c)(8).” Alternatively, the court ordered Appellant to pay
restitution under the Pension Forfeiture Act, 43 P.S. § 1314(a). 2
On December 5, 2018, Appellant filed a Post-Sentence Motion
challenging the legality of imposing restitution payable to the DCED, a division
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2 The Order also contained a typographical error, which the court corrected by
issuing an Amended Resentencing Order on June 3, 2019.
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of the Commonwealth of Pennsylvania, and of imposing restitution as a
condition of probation. Appellant also challenged the imposition of restitution
pursuant to the Pension Forfeiture Act, arguing that the Act does not provide
for the assessment of restitution beyond the amount of a public official’s
crimes.
On April 5, 2019, the court notified Appellant that his Post-Sentence
Motion had been denied by operation of law. On May 2, 2019, Appellant filed
a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises the following three issues on appeal:
1. Whether the [l]ower [c]ourt properly sentenced [Appellant] to
pay restitution in any amount because the Commonwealth
cannot be a victim under the statutory scheme in this case[?]
2. Whether the [l]ower [c]ourt properly sentenced [Appellant] to
pay restitution as a condition of probation when the
Commonwealth failed to request restitution as a condition of
probation at the time of [Appellant’s] sentencing[?]
3. Whether the [l]ower [c]ourt property ordered [Appellant] to
pay restitution under the Pension Forfeiture Act since
[Appellant] was not an employee of the Commonwealth at the
time of his sentencing[?]
Appellant’s Brief at 5.
Before we address Appellant’s issues, we must consider whether he
timely filed the instant appeal. The timeliness of an appeal implicates our
jurisdiction, therefore, we may raise the issue sua sponte. Commonwealth
v. Dreves, 839 A.2d 1122, 1126 n.4 (Pa. Super. 2003 (en banc); see
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Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) (sua sponte
raising timeliness of an appeal where defendant filed Pa.R.Crim.P. 720(A)(1)
post-sentence motion more than 10 days after imposition of sentence and did
not toll appeal period).
The trial court docket reflects that the court resentenced Appellant at
his resentencing hearing on November 19, 2018.3 See Commonwealth v.
Duffy, 143 A.3d 940, 943-44 (Pa. Super. 2016) (explaining that the court
imposes a defendant’s sentence on the day it is pronounced, not on the day
the court enters its sentencing order); Commonwealth v. Green, 862 A.2d
613, 615-18 (Pa. Super. 2004) (en banc) (construing the time period set forth
in Rule 720(A)(1) for filing a post-trial motion as running from the date
sentence is imposed and not the date the clerk of court dockets its sentencing
order). Thus, the period in which Appellant could file a timely post-sentence
motion began to run on November 19, 2018. Id.
Appellant filed his Post-Sentence Motion on December 5, 2018, more
than 10 days after his resentencing. Accordingly, Appellant’s Post-Sentence
Motion was untimely.
Pa.R.Crim.P. 720 provides, in relevant part, that “if the defendant does
not file a post-sentence motion, the defendant’s notice of appeal shall be filed
within 30 days of imposition of sentence.” Pa.R.Crim.P 720(A)(3). Because
the filing of an untimely post-sentence motion does not toll the running of the
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3Appellant did not provide this Court with the Notes of Testimony from his
November 19, 2018 resentencing hearing.
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appeal period, the instant appeal, filed more than five months after imposition
of sentence, was, likewise, untimely. We, thus, lack jurisdiction to entertain
it. See Duffy, supra at 944; Green, supra at 618. We are, therefore,
constrained to quash Appellant’s appeal.
Appeal quashed.
Judge Olson joins the memorandum. Judge McLaughlin did not
participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2020
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