Com. v. Lamandre, P. ( 2015 )

J-S41006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER N. LAMANDRE,
Appellant No. 1558 MDA 2014
Appeal from the Judgment of Sentence entered July 29, 2014,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-000-1969-2013
BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JUNE 26, 2015
Peter N. Lamandre (“Appellant”) appeals from the judgment of
sentence imposed after he pled guilty plea to one count of possessing an
instrument of crime, and four counts of theft by unlawful taking.1 We affirm.
The trial court explained the factual and procedural background of this
case as follows:
On May 5, 2014, [Appellant] pled guilty to one count of
possession of an instrument of a crime and four counts of theft
by unlawful taking in the above captioned case. In exchange,
the 27 other charges pending against [Appellant] were nolle
prossed. The charges arose when [Appellant] stole funds from
several clients who had hired him to manage their rental
properties.
____________________________________________
1
18 Pa.C.S. §§ 907(a) and 3921(a).
*Retired Senior Judge assigned to Superior Court.
J-S41006-15
On July 29, 2014, a restitution hearing was held. The
parties stipulated to the amounts owed to most of the victims.
Two of the victims, Brian Gray [“Gray”] and Valerie Altuner
[“Altuner”], testified as to the amount stolen from them.
Transcript of July 29, 2014 Restitution and Sentencing Hearing.
[Gray] testified that he had hired [Appellant] to manage his four
rental properties, and he was able to obtain his financial
statements from [Appellant’s] website, and discovered that he
was not receiving rents from [Appellant], nor was [Appellant]
paying bills. Id. at 6-9. He testified that he prepared a
statement of the amount owed by [Appellant] which totaled
$45,472.96 and was attached to his victim impact statement.
Id. at 9-11. The statement was marked Court Exhibit No. 1. Id.
at 10. [Altuner] testified that she hired [Appellant] to manage
10 properties for her, with 15 units, for approximately 4 or 5
years. Id. at 18-27. She testified that she had her accountant
prepare a letter for her, and that she estimated that she was
owed $450,000. Id. at 19. The parties stipulated that the
amount owed to Brian Murray, as detailed in his victim impact
statement, was $25,067.25. Id. at 12-14.
Following the restitution hearing, [Appellant] was
sentenced. The court stated that in reviewing the presentence
file, the testimony elicited and the charges brought, it is clear
that at best his behavior was gross negligence, and at worst it
was contemplated, premeditated, repetitive criminal activity. Id.
at 42-43. The court stated that it saw no indication of remorse,
and no explanation that makes any sense. Id. The court stated
that it appeared that this was an ongoing course of conduct
designed to reap profits and was nothing short of outright
embezzlement. Id. The court noted that at least six different
clients of his were treated this way, and while it is the custom of
the court to impose sentences within the standard range of the
sentencing guidelines, the Sentencing Code mandates that if the
court finds repetitive conduct, premeditation, and efforts to
obfuscate and camouflage, then the court should sentence within
the aggravated range. Id. at 43-44. The court imposed an
aggregate sentence of 11 to 23 months, followed by 5 years of
probation. Id. at 45. The court also ordered that [Appellant]
was not to possess a realtor's license and was not to be involved
in any position or employment that would involve the
management of others’ funds. Id. The court ordered a drug and
alcohol and mental health evaluation. Id.
-2-
J-S41006-15
The court then ordered restitution. The court ordered that
[Appellant] pay the following amounts: Murray family
$25,067.25; Yoeder $3,059.65; [Bill] Milan [“Milan”] $5,148;
Altuner $285,000; Salque $12,849; and Gray $45,472.96. Id. at
45-46. The court stated that it considered the testimony given,
as well as the amounts that were stipulated to and the facts and
figures from which the court was able to extrapolate to arrive at
a fair number. Id. at 46. The court stated that it considered
[Appellant’s] testimony concerning the amount owed, but given
that [Appellant] was involved in a consistent, prolonged,
intentional, premeditated course of conduct of embezzlement
and fraud, the court attributed no credibility to his testimony or
the figures he submitted. Id. The court stated that it considered
the entire presentence file, the [Appellant’s] information and
input, the nature and gravity of the offense, and the
rehabilitative needs of [Appellant]. Id. at 47.
On August 19, 2014, [Appellant] filed an untimely motion
for reconsideration of sentence which was denied that same
date. On September 16, 2014, [Appellant] filed a Notice of
Appeal, and that same date, this court ordered [Appellant] to file
a concise statement of the matters complained of on appeal
within 21 days pursuant to Pa.R.A.P. 1925(b). On October 7,
2014, [Appellant] filed a motion for an extension of time, which
this court granted. On October 22, 2014, [Appellant] filed a
Statement of Matters Complained of on Appeal.
Trial Court Opinion, 11/6/14, at 1-3.
On appeal, Appellant presents two questions:
1. Should the lower court's restitution awards to Altuner and
Milan be set aside because they are illegal in light of the fact that
[Appellant] never pleaded guilty to anything regarding either of
these claimants?
2. Should the lower court's restitution awards to Altuner and
Gray be set aside because they are speculative and not
supported by the record?
Appellant’s Brief at 5.
-3-
J-S41006-15
Before reaching Appellant’s issues, we address the timeliness of his
appeal. Pennsylvania Rule of Criminal Procedure 720(A)(1), provides in
pertinent part that ”a written post-sentence motion shall be filed no later
than 10 days after imposition of sentence.” In Commonwealth v. Bilger,
we explained:
With respect to the filing of an appeal, Rule 720 [provides
in pertinent part]:
(2) If the defendant files a timely post-sentence
motion, the notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the
motion;
(b) within 30 days of the entry of the order denying the
motion by operation of law in cases in which the judge fails
to decide the motion; or
(c) within 30 days of the entry of the order memorializing
the withdrawal in cases in which the defendant withdraws
the motion.
(3) 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, except as provided in
paragraph (A)(4).
(Emphasis added). As can be readily observed by reading the
text of Rule of Criminal Procedure 720, ordinarily, when a post-
sentence motion is filed an appellant has thirty (30) days from
the denial of the post-sentence motion within which to file a
notice of appeal. However, by the explicit terms of Pa.R.Crim.P.
720(A)(2), the provision allowing thirty days from the denial of
post-trial motions is contingent upon the timely filing of a post-
trial motion. []
***
[] For purposes of triggering the appeal period, [a]ppellant's
filing of an untimely post-sentence motion is equivalent to a
complete failure to file a post-sentence motion. Thus,
-4-
J-S41006-15
[a]ppellant was obligated to file his appeal within thirty days of
[the entry of his judgment of sentence]. Since he did not, his
appeal must be quashed.
***
Admittedly, a trial court may have authority and discretion
to consider the merits of an untimely post-sentence motion. See
Commonwealth v. Felmlee, 2002 Pa.Super. 179, n. 3. However,
absent the additional step by the trial court of vacating the
sentence within the thirty-day period and prior to the taking of
an appeal, the court's decision to do so should not affect the
running of the appeal period and a potential appellant will still be
obligated to file an appeal within thirty days of imposition of
sentence. See Commonwealth v. Quinlan, 433 Pa.Super. 111,
639 A.2d 1235 (1994). To invoke a rule that ties the start of the
appeal period to the trial court's subsequent decision to either
consider the merits of an untimely filed post-sentence motion, or
the trial court's decision to equate an untimely petition as no
petition, would add uncertainty to an otherwise certain rule and
add confusion where there need be none.
Commonwealth v. Bilger, 803 A.2d 199, 201-202 (Pa. Super. 2002)
(internal footnote omitted).
In Commonwealth v. Patterson, we further explained:
After the expiration of the ten-day period, a post-sentence
motion cannot toll the appeal period unless the appellant files a
motion seeking permission to file a post-sentence motion nunc
pro tunc and the trial court expressly grants this request within
thirty days of the imposition of the sentence. See Dreves, 839
A.2d at 1128–29 (stating “[t]he trial court's resolution of the
merits of a late post-sentence motion is no substitute for an
order expressly granting nunc pro tunc relief”).
Patterson, 940 A.2d 493, 498 n.3 (Pa. Super. 2007).
-5-
J-S41006-15
Instantly, Appellant’s judgment of sentence was entered on July 29,
2014. Appellant’s post-trial motion was docketed on August 19, 2014,2 and
is therefore untimely pursuant to Pa.R.Crim.Proc. 720(A)(1). Appellant
never sought nunc pro tunc relief, and the trial court never granted such
relief sua sponte. Thus, Appellant was required to file his notice of appeal by
on or before August 29, 2014. Appellant’s notice of appeal was filed on
September 16, 2014. Therefore, Appellant’s appeal is untimely.
However, in Patterson, despite finding that appellant’s post-sentence
motion and subsequent notice of appeal were untimely, we nevertheless
declined to quash appellant’s appeal because:
Generally, an appellate court cannot extend the time for
filing an appeal. Commonwealth v. Braykovich, 444 Pa.Super.
397, 664 A.2d 133, 136 (1995), citing Pa.R.A.P. 105(b);
Commonwealth v. Smith, 348 Pa.Super. 10, 501 A.2d 273, 275
(1985) (stating “[a] court may not enlarge the time for filing a
notice of appeal as a matter of grace or indulgence”).
Nonetheless, this general rule does not affect the power of the
courts to grant relief in the case of fraud or breakdown in the
processes of the court. See Braykovich, supra at 136, citing
Pa.R.A.P. 105, Explanatory Note; Smith, supra at 275. Thus,
____________________________________________
2
Appellant’s counsel contends that Appellant’s post-trial motion was timely
filed on August 7, 2014 via a facsimile which Appellant’s counsel submitted
to the trial court’s clerk on that date. However, the certified record is devoid
of any documentation reflecting such submission. Therefore, we are
precluded from considering Appellant’s contention regarding the August 7,
2014 putative filing. Commonwealth v. Spotti, 94 A.3d 367, 381-382 (Pa.
Super. 2014) (internal citation omitted) (“An appellate court is ‘limited to
considering only those facts that have been duly certified in the record on
appeal.’”). Instead, we are bound by the August 19, 2014 date stamp which
is reflected on Appellant’s post-trial motion, and the corresponding August
19, 2014 docket entry memorializing said filing.
-6-
J-S41006-15
before our Court may quash the instant appeal, we must
determine whether an administrative breakdown in the court
system excuses the untimely filing of the notice of appeal.
The courts of this Commonwealth have held that a court
breakdown occurred in instances where the trial court, at the
time of sentencing, either failed to advise Appellant of his post-
sentence and appellate rights or misadvised him. See
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super.
2001); Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d
168, 170 (1987); Commonwealth v. Hurst, 367 Pa.Super. 214,
532 A.2d 865, 867 (1987); Commonwealth v. Katz, 318
Pa.Super. 282, 464 A.2d 1343, 1345–1346 (1983). We have
also found a breakdown where the clerk of courts did not enter
an order notifying the appellant that his post-sentence motion
was denied by the operation of law. See Commonwealth v.
Perry, 820 A.2d 734, 735 (Pa. Super. 2003); Braykovich, supra.In each of the aforementioned instances, the “breakdown”
occurred when the trial court or the clerk of courts departed
from the obligations specified in current Rules 704 and 720 of
the Pennsylvania Rules of Criminal Procedure.
Rule 704(C)(3)(a) states that, at the time of sentencing,
“[t]he judge shall determine on the record that the defendant
has been advised ...”, inter alia, “of the right to file a post-
sentence motion and to appeal, ... [and] of the time within which
the defendant must exercise those rights.” Pa.R.Crim.P.
704(C)(3)(a) (emphasis added). The Comment to this Rule
provides that “[t]his rule is intended to promote ... fair
sentencing procedures ... by requiring that the defendant be
fully informed of his or her post-sentence rights and the
procedural requirements which must be met to preserve those
rights.” Pa.R.Crim.P. 704, Comment. Furthermore, Rule
720(B)(4)(a) states that “[a]n order denying a post-sentence
motion, whether issued by the judge ... or entered by the clerk
of courts ..., shall include notice to the defendant of,” inter alia,
“the right to appeal and the time limits in which the appeal must
be filed.” Pa.R.Crim.P. 720(B)(4)(a) (emphasis added). “This
requirement ensures adequate notice to the ... [appellant],
which is important given the potential time lapse between the
notice provided at sentencing and the resolution of the post-
sentence motion.” Pa.R.Crim.P. 720(B)(4)(a), Comment.
-7-
J-S41006-15
In the instant case, the trial court complied with Rule 704
at sentencing by notifying [a]ppellant of the time in which to file
his post-sentence motion and appeal. However, the trial court
utterly failed to comply with the dictates of Rule 720. In the
January 3, 2005 order denying [a]ppellant's untimely post-
sentence motion, the trial court did not notify [a]ppellant that,
due to the late filing of his post-sentence motion, he had to file
an appeal within thirty days of the imposition of sentence. Had
the trial court done so, [a]ppellant could have filed a timely
appeal within the fifteen days remaining in the appeal period.
In our view, the trial court's failure to comply with Rule
720 constitutes a breakdown that excuses the untimely filing of
[a]ppellant's notice of appeal. While [a]ppellant did receive
proper notification of his post-sentence and appellate rights at
the time of sentencing, we will not deem partial compliance with
the rules sufficient. Foremost, the use of the word “shall” in
Rule 720(B)(4)(a) evinces the mandatory nature of the
notification. See Commonwealth v. Pleger, 934 A.2d 715, 720
(Pa. Super. 2007) (stating “shall” evinces a mandatory
obligation). Second, the Comment to the Rule clearly states that
Rule 720(B)(4) serves a distinct purpose from Rule 704, namely,
to ensure adequate notice to the defendant given the routine
delay between the sentencing and the disposition of the post-
sentence motion. Finally, in the instant case, the trial court's
compliance with this rule likely would have obviated the untimely
filing of the appeal as [a]ppellant had over two weeks remaining
in the appeal period after the trial court entered the order.
Patterson, 940 A.2d at 498-500 (internal footnotes omitted).
Here, as in Patterson, the trial court’s order denying Appellant’s
untimely post-trial motion was filed before the expiration of Appellant’s 30
day appeal period. See Order, 8/19/14, at 1. However, the trial court’s
order “did not notify [a]ppellant that, due to the late filing of his post-
sentence motion, he had to file an appeal within thirty days of the imposition
of sentence.” See id. at 1; Patterson, supra, at 499. Therefore, we are
-8-
J-S41006-15
constrained to find that “a court breakdown occurred,” and will consider the
merits of Appellant’s appeal.
Appellant’s first issue challenges the legality of his sentence as it
pertains to the trial court’s restitution order relative to Altuner and Milan.
Specifically, Appellant contends that the trial court erroneously “ordered
restitution to be paid to individuals who were never mentioned during the
guilty plea colloquy and for which there had been no determination as to
[Appellant’s] criminal accountability of their alleged loss.” Appellant’s Brief
at 14.
Appellant’s challenge is a question of law regarding which our standard
of review is plenary. Commonwealth v. Stradley, 50 A.3d 769, 771–72
(Pa. Super. 2012) (internal citations omitted). “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. Where that
statutory authority exists, however, the imposition of restitution is vested
within the sound discretion of the sentencing judge.” Commonwealth v.
Kinnan, 71 A.3d 983, 986 (Pa. Super. 2013). “When restitution is imposed
as part of the defendant's sentence, a direct causal connection between the
damage to person or property and the crime must exist.” Commonwealth
v. Nuse, 976 A.2d 1191, 1193 (Pa. Super. 2009); see also
Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa. Super. 2007) (“The
court must also ensure that the record contains the factual basis for the
-9-
J-S41006-15
appropriate amount of restitution[;] [i]n that way, the record will support
the sentence.”).
At the commencement of Appellant’s guilty plea colloquy, the
Commonwealth moved to amend counts 1 through 5 of Appellant’s criminal
information. N.T., 5/5/14, at 2 (unnumbered). The Commonwealth
indicated that the amended counts would “include all parties identified on
the criminal information.” Id. Appellant’s criminal information lists Altuner
and Milan as victims of Appellant’s criminal activities. See Information,
10/17/13, at 1-2.
Significantly, Appellant confirmed that the trial court had “stated all
the terms of the plea as [Appellant] understand[s] it,” following the trial
court’s recitation of the plea agreement as follows:
Trial Court: I’m told that there is a plea agreement that
has been reached here and the terms of the
agreement are as follows, that you will plead
guilty to one count of possessing instruments
of a crime and four counts of theft,
misdemeanor of the second degree. And the
Commonwealth will drop all remaining charges
against you.
Additionally, you are agreeing to pay
restitution to all victims alleged in the
information. And there is no agreement, at the
present time, as to the amount of that
restitution.
It will be determined by me in a separate
hearing from these proceedings and will be
ordered at the time of the imposition of
sentence.
- 10 -
J-S41006-15
N.T., 5/5/14, at 4-5.
Appellant agreed that the foregoing recitation of the plea terms was
“[his] understanding” of the plea terms. Id. at 5. Therefore, while the
Commonwealth and the trial court may have omitted Altuner and Milan from
the recitation of the victims’ names during the plea colloquy, the fact
remains that the amended criminal information, and the plea agreement
pursuant to which Appellant entered his guilty plea, encompassed Altuner
and Milan, supporting the trial court’s restitution award.
In his second issue, Appellant contends that the amount of the
restitution awards to Altuner and Gray were “speculative and not supported
by the record.” Appellant has included a Pa.R.A.P. 2119(f) statement within
his brief noting that this issue challenges the discretionary aspects of his
sentence. See Appellant’s Brief at 4. We disagree. A close reading of
Appellant’s second issue, and his argument in support of this issue, reflects
that Appellant repeatedly assails the Altuner and Gray awards as
“speculative and unsupported by the record.” See Appellant’s Brief at 21-
24. Such a challenge does not implicate the discretionary aspects of his
sentence, but rather the legality of the same. We have specifically explained
that “[i]n the context of criminal proceedings, an order of restitution is not
simply an award of damages, but, rather, a sentence. 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. The determination as to whether
- 11 -
J-S41006-15
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.” Stradley, 50
A.3d at 771–72 (internal citations omitted) (emphasis supplied).
Based on our review of the record, Appellant’s challenge to the Altuner
and Gray restitution awards fail. The trial court explained:
Two of the victims, [Gray] and [Altuner], testified as to the
amount stolen from them. Transcript of July 29, 2014
Restitution and Sentencing Hearing. [Gray] testified that he had
hired [Appellant] to manage his four rental properties, and he
was able to obtain his financial statements from [Appellant’s]
website, and discovered that he was not receiving rents from
[Appellant], nor was [Appellant] paying bills. Id. at 6-9. He
testified that he prepared a statement of the amount owed by
[Appellant] which totaled $45,472.96 and was attached to his
victim impact statement. Id. at 9-11. The statement was
marked Court Exhibit No. 1. Id. at 10. [Altuner] testified that
she hired [Appellant] to manage 10 properties for her, with 15
units, for approximately 4 or 5 years. Id. at 18-27. She
testified that she had her accountant prepare a letter for her,
and that she estimated that she was owed $450,000. Id. at 19.
Trial Court Opinion, 11/6/14, at 2.
“Restitution compensates the victim for his loss and rehabilitates the
defendant by impressing upon him that his criminal conduct caused the
victim’s loss and he is responsible to repair that loss.” Commonwealth v.
Wall, 867 A.2d 578, 582 (Pa. Super. 2005). We have further expressed:
Although restitution does not seek, by its essential nature, the
compensation of the victim, the dollar value of the injury
suffered by the victim as a result of the crime assists the court in
calculating the appropriate amount of restitution. 18 Pa.C.S.A. §
1106(a), (c). A restitution award must not exceed the victim’s
losses. A sentencing court must consider the victim’s injuries,
the victim’s request as presented by the district attorney, and
- 12 -
J-S41006-15
such other matters as the court deems appropriate. 18
Pa.C.S.A. § 1106(c)(2)(i).
Pleger, 934 A.2d at 720. Instantly, the trial court’s restitution awards to
Altuner and Gray did not exceed their claimed amount of losses. As the trial
court observed, despite Altuner’s request for $450,000 dollars, the trial court
only awarded her $285,000 “after considering the statement she
provided[.]” Trial Court Opinion, 11/6/14, at 5.
Moreover, Appellant acknowledges that Gray testified to the amounts
of his loss and submitted materials from his “civil attorney” in support the
loss. Appellant’s Brief at 7-8. Appellant further concedes that in addition to
Altuner’s testimony, Altuner’s contractor testified that “[Altuner’s]
accountant claimed she was owed $281,000.00.” Appellant’s Brief at 22-23.
Appellant assails that testimony as “impermissible hearsay testimony.”
Appellant’s Brief at 22. Appellant disregards, however, that “[s]entencing
courts may consider evidence that might not be admitted at trial.”
Commonwealth v. Charles, 488 A.2d 1126, 1129 (Pa. Super. 1985).
“Significantly, the admission of hearsay in sentencing proceedings, especially
those which do not involve a capital crime, is a common occurrence. In fact,
sentencing courts, as a matter of course, consider hearsay in nearly every
sentencing case since pre-sentence investigations are routinely ordered and
considered by the court, and a pre-sentence report is the very definition of
hearsay ...” Commonwealth v. Medley, 725 A.2d 1225, 1230 (Pa. Super.
1999). Moreover, a sentencing judge “may appropriately conduct an inquiry
- 13 -
J-S41006-15
broad in scope, largely unlimited either as to the kind of information he may
consider, or the source from which it may come.” Commonwealth v.
Schwartz, 418 A.2d 637, 640-641 (internal citation omitted) (Pa. Super.
1980).
Given our review of the record and applicable jurisprudence, we
discern no error in the trial court’s award of restitution to Altuner and Gray,
and thus affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
- 14 -