Com. v. Mistkowski, A. ( 2017 )


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  • J-S46043-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                              :
    :
    :
    ANTHONY MISTKOWSKI                         :
    :
    Appellant                :   No. 1667 MDA 2016
    Appeal from the Order Entered September 6, 2016
    In the Court of Common Pleas of Luzerne County
    Criminal Division at No(s): CP-40-CR-0004395-2013
    BEFORE:        BOWES, OLSON, JJ., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 16, 2017
    Appellant, Anthony Mistkowski, appeals from the order entered on
    September 6, 2016, in the Court of Common Pleas of Luzerne County
    denying his motion to vacate the court’s earlier order of December 11, 2014,
    which had granted the Commonwealth’s motion to modify Mistkowski’s
    criminal sentence by including an award of restitution. We affirm the order
    of the court, albeit on different grounds.
    On October 6, 2014, Mistkowski pled guilty to third-degree felony
    receiving stolen property for his involvement with an $18,000.00 motorcycle
    stolen from a garage. As part of the plea, Mistkowski agreed to pay costs in
    exchange for the withdrawal of other charges and the Commonwealth’s
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S46043-17
    agreement to a sentence of five years’ probation. The plea did not address
    restitution.
    Sentencing commenced on the same date. During the proceeding, the
    court asked whether Mistkowski owed restitution, to which counsel for both
    Mistkowski and the Commonwealth mistakenly responded that restitution
    was not required because the property had been recovered.         Trial Court
    Opinion, filed 12/22/16 at 1. In fact, the motorcycle had been destroyed.
    Accordingly, the court imposed a sentence of five years’ probation consistent
    with the terms of the plea agreement.
    On December 11, 2014, the Commonwealth filed a motion to modify
    the sentence in which it requested restitution for the first time. The motion
    advised that defense counsel agreed with the motion and would not oppose
    it. The court granted the motion on the same date and entered an order of
    restitution in the amount of $18,000.00.
    On April 18, 2016, Mistkowski filed a motion to vacate the order
    granting restitution as having resulted in an illegal sentence.   Specifically,
    Mistkowski argued that the court lacked jurisdiction to grant the motion
    seeking restitution for the first time where the Commonwealth neither
    satisfied its statutory duty to recommend restitution at or prior to the time
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    of sentencing, see 18 Pa.C.S. § 1106(c)(4),1 nor filed the motion to modify
    sentence within 10 days after judgment of sentence, as is required under
    ____________________________________________
    1
    Section 1106, Restitution for injuries to person or property, 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:
    ***
    (2)    At the time of sentencing the court shall specify the
    amount and method of restitution.
    ***
    (3)    The court may, at any time . . . 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.
    (4)    (i) It shall be the responsibility of the district attorneys of
    the respective counties to make a recommendation to the
    court at or prior to the time of sentencing as to the
    amount of restitution to be ordered. This recommendation
    shall be based upon information solicited by the district
    attorney and received from the victim.
    (Footnote Continued Next Page)
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    Pa.R.Crim.P. 721(b)(1) (providing Commonwealth shall file a motion for
    modification of sentence no later than 10 days after imposition of sentence).
    The court convened a hearing on May 18, 2016, and took the matter under
    advisement.     On September 6, 2016, the court entered its order denying
    Mistkowski’s request to vacate the order.
    Herein, Mistkowski contends that the sentencing court erred in denying
    his motion to vacate an order for which it lacked jurisdiction to grant in the
    first place. Both the Commonwealth and sentencing court now agree with
    Mistkowski’s appellate position that the order granting the Commonwealth’s
    motion to add restitution to Mistkowski’s sentence must be vacated for
    jurisdictional reasons.      Disagreement between the parties, however, arises
    with respect to whether this Court must reinstate the original sentencing
    order or remand the matter for resentencing.
    _______________________
    (Footnote Continued)
    (ii) Where the district attorney has solicited information
    from the victims as provided in subparagraph (i) and has
    received no response, the district attorney shall, based on
    other available information, make a recommendation to
    the court for restitution.
    (iii) The district attorney may, as appropriate, recommend
    to the court that the restitution order be altered or
    amended as provided in paragraph (3).
    ****
    18 Pa.C.S.A. § 1106(1), (2), (3), and (4)(i),(ii), and (iii).
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    Mistkowski argues for reinstatement, as the original sentencing order
    containing no restitution was lawful as entered, such that the court’s
    sentencing scheme will not be altered by removal of the belated award of
    restitution made in contravention of Section 1106(c).    The Commonwealth
    counters that the court’s sentencing order should be vacated and the case
    remanded for resentencing because the parties mistakenly informed the trial
    court at sentencing that the stolen property was returned, obviating the
    need for restitution.
    Before we may address the merits of the appeal as presented,
    however, we are compelled to examine, sua sponte, whether Mistkowski’s
    April 18, 2016, motion to vacate the December 11, 2014, order modifying
    his sentence was untimely, as this question implicates our jurisdiction. 2 The
    record establishes that the trial court imposed judgment of sentence on
    October 6, 2014, and Mistkowski filed no direct appeal.        Therefore, his
    judgment of sentence became final on November 5, 2014.3 Consequently,
    ____________________________________________
    2
    Even where neither party nor the court has addressed the matter, it is
    well-settled that we may raise the question of timeliness of a motion
    implicating the jurisdiction of our Court. See, e.g., Commonwealth v.
    Gandy, 
    38 A.3d 899
     (Pa.Super. 2012) (holding this Court may sua sponte
    address timeliness of PCRA petition, as question implicates jurisdiction of
    court).
    3
    Where a defendant fails to file a direct appeal from his conviction, his
    judgment of sentence becomes final thirty days after imposition of the
    sentence. Commonwealth v. Jerman, 
    762 A.2d 366
    , 368 (Pa.Super.
    2000).
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    although Mistkowski’s April 18, 2016, motion to vacate the court’s December
    11, 2014, order modifying his sentence for want of jurisdiction raised a
    meritorious claim, the trial court was required to review the motion under
    the rubric of the Post Conviction Relief Act, 42 Pa.C.S.A §§ 9541-9546. See
    42 Pa.C.S.A. § 9542; Commonwealth v. Fowler, 
    930 A.2d 586
    , 591
    (Pa.Super. 2007) (recognizing courts are to construe as PCRA petitions all
    motions a defendant files after his judgment of sentence has become final);
    Commonwealth v. Johnson, 
    803 A.2d 1291
    , 1293 (Pa.Super. 2002)
    (“[T]he [PCRA] provides the sole means for obtaining collateral review, and
    … any petition filed after the judgment of sentence becomes final will be
    treated as a PCRA petition.”).
    The trial court, however, failed to apply the PCRA to Mistkowski’s
    motion to vacate and, instead, assessed the filing independent of the PCRA
    and its rules pertaining to issues of timeliness and the right to counsel.4
    Mistkowski was represented by counsel at all times during the PCRA phase of
    his case, such that we discern no need to remand for the appointment of
    counsel. We inquire, then, into the timeliness of Mistkowski’s motion as a
    PCRA petition.
    ____________________________________________
    4
    A first-time PCRA petitioner has a rule-based right   to counsel throughout
    the post-conviction proceedings, including any appeal   from disposition of the
    PCRA petition. Commonwealth v. Figueroa, 
    29 A.3d 1177
     (Pa.Super.
    2011). See also Commonwealth v. White, 
    871 A.2d 1291
     (Pa.Super.
    2005).
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    The timeliness of a PCRA petition is a jurisdictional requisite.
    Commonwealth v. Turner, 
    73 A.3d 1283
     (Pa.Super. 2013).                A PCRA
    petition must be filed within one year of the date the underlying judgment
    becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at
    the conclusion of direct review or at the expiration of time for seeking
    review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
    timeliness provisions in the PCRA allow for very limited circumstances under
    which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
    Therefore, Mistkowski’s counseled motion, which we construe as a
    collateral challenge to the legality of his modified sentence, failed to meet
    the timeliness requirements applicable to a PCRA petition. 5        Moreover,
    neither his motion to vacate nor his counseled appeal invoked any of the
    three exceptions to the PCRA’s one-year time-bar.        Accordingly, we are
    constrained to affirm the order denying Appellant’s motion to vacate, albeit
    on different grounds.
    Order is AFFIRMED.
    ____________________________________________
    5
    Although an issue relating to the legality of a sentence cannot be waived, it
    nevertheless must be presented in a timely PCRA petition. Commonwealth
    v. Fahy, 
    737 A.2d 214
    , 223 (Pa. 1999) (“Although legality of sentence is
    always subject to review within the PCRA, [such a claim] must still first
    satisfy the PCRA's time limits or one of the exceptions thereto.”).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/16/2017
    -8-