J-A20013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY A. MASSEY :
:
Appellant : No. 1897 WDA 2019
Appeal from the PCRA Order Entered August 19, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000188-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2021
Wesley A. Massey appeals from the August 19, 2019 order dismissing
his petition for relief under the Post-Conviction Relief Act (“PCRA”).1 After
careful review, we vacate Appellant’s judgment of sentence and nolo
contendere plea, and remand with instructions.
Due to the nature of our disposition, we will review the factual and
procedural history of this case only briefly. Between May 21, 2015, and June
15, 2015, Appellant utilized a credit card issued to him by his then-employer,
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1 Appellant is pursuing a separate appeal from an unrelated PCRA petition at
Commonwealth v. Massey, 1514 WDA 2019. These proceedings are closely
related in terms of procedural history, as both were pending before the Court
of Common Pleas of Crawford County during the same period of time. The
records of both cases share major filings and significant hearing dates, as
Appellant was represented by the same counsel at both docket numbers.
However, the legal and factual issues raised in each appeal are distinct.
Furthermore, the PCRA court independently adjudicated each petition and
entered separate final orders denying them. As such, we decline to
consolidate these appeals pursuant to Pa.R.A.P. 513.
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Power Drives Incorporated (“PDI”), to purchase $42,286.19 in goods and
services that were not authorized. In connection with these events, Appellant
was charged with, inter alia, access device fraud.
Following protracted pre-trial motions practice and the appointment of
four separate attorneys to represent Appellant, he entered a negotiated open
plea of nolo contendere to the aforementioned offense in exchange for the
Commonwealth entering a nolle prosequi as to the remaining charges. On
March 27, 2018, Appellant was sentenced to an aggregate term of eighteen
to sixty months of imprisonment and was also ordered to pay fines, costs, and
restitution in the amounts of: (1) $14,491,69 to Hartford; and (2) $15,747.69
to Kazlow Fields. Specifically, these entities were identified as insurance
companies that paid out claims directly to PDI related to Appellant’s
unauthorized purchases. See N.T. Sentencing, 3/23/18, at 4-5 (“[T]here is
restitution being sought. There is actually none due to PDI. However, they
did have two insurance companies that paid out claims to them.”).
Thereafter, Appellant sought leave to represent himself in filing a direct
appeal to this Court. Following a Grazier hearing2 and after a waiver of
counsel colloquy was held, Appellant was permitted to proceed with a timely
pro se direct appeal. See Order, 4/23/18, at 1. On August 31, 2018, this
Court dismissed Appellant’s pro se appeal due to his failure to file a brief.
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant filed a timely pro se PCRA petition and the PCRA court
appointed counsel to represent Appellant. After a second Grazier hearing
was held, however, Appellant was again permitted to proceed pro se. The
PCRA court also made a provision for the potential appointment of standby
counsel “[i]n the event the [PCRA court] concludes that [Appellant] is entitled
to an evidentiary hearing on any of the issues that he will ultimately raise or
has already raised.” Order, 6/14/19, at 1. Thereafter, Appellant did not seek
leave to amend his pro se petition in the above-captioned case, but filed a
supplemental memorandum of law that the PCRA court accepted and
considered. See Memorandum and Order, 7/23/19, at 3.
The PCRA court gave notice of its intent to dismiss Appellant’s petition
without a hearing. Appellant did not tender a response, and the PCRA court
entered a final order denying and dismissing his petition. See Order, 8/19/19,
at 1. Appellant filed a timely pro se notice of appeal. Both he and the PCRA
court have complied with their obligations under Pa.R.A.P. 1925.
Appellant raises the following issues for our consideration:
1. Is the restitution component of [Appellant’s] sentence in the
amount of $14,491.[69] to Hartford Insurance and Kazlow Fields
in the amount of $15,747.69, both [of] which was paid to PDI
Corporation illegal and does his plea have to be vacated as a
matter of law as a result?[3]
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3 Appellant first raised this claim concerning the restitution portion of his
sentence on appeal in this case. As discussed further infra, this claim sounds
in legality of sentence and is, therefore, nonwaiveable. See Commonwealth
v. Weir, 239 A.3d 25, 37 (Pa. 2020) (identifying a claim that a sentencing
court has erroneously imposed restitution outside of “the statutory
circumstances” as one that “need not be preserved”).
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2. Did the PCRA [c]ourt err in denying [Appellant] relief in the
form of a new trial on the basis of ineffective assistance of
trial/plea counsel, as result of puffery, lack of
investigation/preparation, and competent strategy, induced him
to enter a nolo contedere plea [with a substantial restitution
component] to a crime he did not commit?
3. Did the PCRA [c]ourt err when it upheld a conviction given the
newly discovered evidence submitted and given that [Appellant’s]
conduct for the criminal statute of 18 Pa.C.S. § 4106(a)(1)(iv)[,]
as properly interpreted, does not prohibit the conduct of
[Appellant]?
Appellant’s brief at 4 (internal citations omitted; issues reordered).
Our standard and scope of review in this context is well-established:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. The scope of our review is limited to the findings of the
PCRA court and the evidence of record, which we view in the light
most favorable to the party who prevailed before the court. . . .
The PCRA court’s factual findings and credibility determinations,
when supported by the record, are binding upon this Court. . . .
However, we review the PCRA court’s legal conclusions de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (internal
quotation marks and citations omitted). Appellant’s first issue implicates the
legality of his sentence. “[T]he determination as to whether the trial court
imposed an illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary.” Commonwealth v.
Atanasio, 997 A.2d 1181, 1183 (Pa.Super. 2010).
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Appellant’s first claim concerns the legality of the restitution portion of
his criminal sentence.4 See Appellant’s brief at 14-17. Although disorganized
and interspersed with non-sequiturs, we readily discern that Appellant’s first
claim implicates the trial court’s statutory authority to impose restitution at
18 Pa.C.S. §§ 1106(a) and (c)(1)(i) (providing that “upon conviction for any
crime wherein property has been stolen, converted or otherwise unlawfully
obtained,” the trial court “shall order full restitution [r]egardless of the current
financial resources of the defendant, so as to provide the victim with the
fullest compensation for the loss.” (emphasis added)).5
“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 his sentence.” Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super.
2013). “[W]here restitution is imposed in addition to a statutory punishment,
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4 “In the context of criminal proceedings, an order of restitution is not simply
an award of damages, but, rather, a sentence.” Commonwealth v.
Atanasio, 997 A.2d 1181, 1182-83 (Pa.Super. 2010) (internal citation and
quotation marks omitted). “An appeal from an order of restitution based upon
a claim that a restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing.” Id. at 1183.
5 An amended version of § 1106 took effect on October 24, 2018. See
Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa.Super. 2019). However,
the pre-amendment iteration of § 1106 was in effect when Appellant’s crimes
were committed, when he entered his plea, and when he was sentenced.
Thus, we will review the legality of his sentence under the pre-amendment
version of § 1106. Id. at 586 (declining to apply the post-amendment version
of § 1106 to a case where “all of the relevant events predate the effective
date of the at-issue amendments to § 1106 by months (or years)”).
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such as imprisonment, the order must be strictly scrutinized since its purpose
is primarily punitive.” Commonwealth v. Harner, 617 A.2d 702, 704 (Pa.
1992); see also 1 Pa.C.S. § 1928(b)(1) (requiring that all “[p]enal provisions”
of Pennsylvania statutes to be “strictly construed”).
Appellant’s argument is centered upon the definition of “victim” that
appears in § 1106:
“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 1929.1
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. § 1106(h) (emphasis added). This Court has previously concluded
that this language ultimately refers to a concomitant definition in the Crime
Victims Act (“CVA”), at 18 P.S. § 11.103. See Commonwealth v. Hunt, 220
A.3d 582, 590 (Pa.Super. 2019) (“[T]he definition of ‘victim’ under the CVA .
. . is the sole definition for our purposes under § 1106.”); Commonwealth
v. Tanner, 205 A.3d 388, 396-97 (Pa.Super. 2019) (same).
Under the CVA, “victim” is defined as follows:
(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 [criminal homicide,
aggravated assault, or rape] committed or attempted against a
member of the child’s family.
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(4) A family member of a homicide victim, including stepbrothers
or stepsisters, stepchildren, stepparents or a fiancé, . . . .
18 Pa.C.S. § 11.103. The CVA defines the term “direct victim” referenced
above 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.
Viewing these statutory provisions in conjunction with one another, our
Supreme Court has previously concluded: “[I]t is clear that the plain text of
Section 11.103 still envisages ‘victims’ as ‘persons’ commonly
understood. . . . Every relevant noun unequivocally describes a human
being, . . ., and nowhere else is there a relevant definition that
persuades us to broaden the common understanding of these words.”
Commonwealth v. Veon, 150 A.3d 435, 454 (Pa. 2016) (emphasis in
original).
Consistent with Veon and in the specific context of Appellant’s claim for
relief, this Court has provided that “[a]n 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.” Tanner, supra at 398.
However, an insurance company is not a “victim” as that term is defined under
§ 11.103. Id. Therefore, “[s]tated plainly, an insurance company is entitled
to receive restitution only when it compensates a victim.” Id.
Instantly, both Hartford and Kazlow Fields were awarded restitution in
connection with claim payments that they tendered to PID, which is a
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corporate entity. See N.T. Sentencing, 3/23/18, at 4-5. This Court has held
that corporate entities do not qualify as “victims” under the pre-amendment
version of § 1106. See Hunt, supra at 591 (holding that “corporate entities”
are not included in the operative definition of “victim” that applies to § 1106).
Thus, PID also does not qualify as a victim for the purposes of restitution.
Consequently, we are constrained to conclude that the restitutionary portion
of Appellant’s sentence is illegal. Accord Tanner, supra at 398 (holding that
an insurance company was not entitled to restitution under § 1106 because it
had not compensated a victim as defined by the statute).
We must determine an appropriate remedy. Appellant has asserted that
we should vacate his entire plea and return the case to the status quo that
existed prior to his acceptance of it. The Commonwealth does not dispute
that Appellant’s sentence is illegal, but suggests in passing that Appellant
should merely be resentenced. We agree with Appellant.
Specifically, we find the holding in Tanner to be instructive on this point.
In that case, as noted above, this Court concluded that an insurance company
was not entitled to compensation under § 1106, which rendered the restitution
portion of the defendant’s sentence illegal. However, the defendant’s
obligation to pay restitution had been a critical part of his negotiated plea with
the Commonwealth. Rather than simply remand for resentencing, we vacated
the defendant’s “entire guilty plea” and restored the “status quo” prior to the
entry of the plea. Id. at 400. We discussed this holding as follows:
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Appellant and the Commonwealth entered into plea negotiations
under the shared misapprehension that the Commonwealth was a
victim entitled to restitution under [§ 1106]. This
misapprehension tainted the parties’ negotiations at the outset.
Therefore, both Appellant and the 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.
Accordingly, we vacate Appellant’s entire guilty plea and restore
the case to its status prior to the entry of the plea.
Id. (citations and quotation marks omitted); see also Commonwealth v.
Melendez-Negron, 123 A.3d 1087, 1093-94 (Pa.Super. 2015) (same).
As was evident throughout the sentencing hearing, the restitution
component of Appellant’s sentence was a vital assumption of the parties and
the trial court. See N.T. Sentencing, 3/23/18, at 4-14. Simply remanding for
resentencing would risk providing either Appellant or the Commonwealth with
a “windfall,” at the unjust expense of the other party. Accord Tanner, supra
at 400; Melendez-Negron, supra at 1093-94. Based upon the foregoing
discussion, we believe that the appropriate remedy is to return this case to
the status quo that existed prior to the entry of Appellant’s plea. Thus, we
vacate Appellant’s sentence and nolo contendere plea and remand for further
proceedings.6 Due to the nature of our holding, we will not address the
balance of Appellant’s remaining claims.
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6 But see Hunt, supra at 591-92 (finding the restitution element of a
negotiated guilty plea and sentence was illegal under § 1106 and remanding
for resentencing while leaving the plea intact).
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Judgment of sentence and nolo contendere plea vacated. Case
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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