Com. v. Mills, J.

J-S13024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JIM RONALD MILLS, JR.
Appellant No. 888 WDA 2015
Appeal from the PCRA Order entered May 26, 2015
In the Court of Common Pleas of Potter County
Criminal Division at No: CP-53-CR-0000022-2012
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 07, 2016
Appellant, Jim Ronald Mills, Jr., appeals from the May 26, 2015 order
of the Court of Common Pleas of Potter County, dismissing his petition for
collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. Upon review, we affirm.
The record shows Appellant was charged with fraud, theft, and misuse
of funds of an elderly victim. Subsequently, on February 10, 2014,
Appellant pled guilty to one count of theft and was sentenced to time served
and payment of restitution in the amount of $60,000, with a payment
schedule of $1,000 per month. See Sentencing Order, 2/12/14.1
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The sentencing order, in relevant part, provides:
(Footnote Continued Next Page)
J-S13024-16
On February 15, 2015, Appellant filed his first PCRA petition
challenging, inter alia, the legality of his plea and sentence and effectiveness
of plea counsel. On March 5, 2015, the PCRA court issued a notice of its
intent to dismiss the PCRA petition because Appellant was not eligible for
PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(1)(i). On May 26, 2015, the
PCRA court dismissed the petition. This appeal followed.
On appeal, Appellant raises the following issue:
Should the Superior Court reverse and remand [sic] the trial
court erred as a matter of law in denying the Appellant’s first
PCRA petition without hearing in determining the Appellant was
no longer under supervision thus denying relief available to him
under 42 Pa.C.S.A. Section 9545 and determined that the
restitution obligation did not constitute remaining under
supervision such that relief from the conviction could be
granted?
Appellant’s Brief at 9.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
_______________________
(Footnote Continued)
It is hereby ORDERED, ADJUDGED and DECREED that the
defendant is given credit for time served. The [c]ourt directs the
defendant to pay the victim $60,000.00 payable in the amounts
of $1,000.00 per month commencing March 15, 2014, and each
month thereafter. . . . Failure to comply with payments would
subject the defendant to contempt proceedings for failing to
comply with this [c]ourt order.
Sentencing Order, 2/12/14.
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conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
Assuming Appellant has an underlying claim,2 we must determine
whether he is eligible for PCRA relief. As noted, the PCRA court found
Appellant was not eligible for relief pursuant 42 Pa.C.S.A. § 9543(a)(1)(i)
because he was no longer “serving” his sentence. We agree.
To be eligible for post-conviction relief,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment, probation
or parole for the crime;
42 Pa.C.S.A. § 9543(a)(1)(i).
Appellant essentially argues that the order of restitution imposed in
the instant matter qualifies as a condition of probation or parole—despite the
fact he was not ever placed on probation or parole—because any other
interpretation of the sentencing order would render the restitution order
unenforceable. Not surprisingly, Appellant provides no authority for his
contention. Indeed, the two cases Appellant relies upon are distinguishable
____________________________________________
2
Appellant provides no discussion in his brief of the merits of his claim. The
entire argument section of the brief is devoted to the question of eligibility.
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(Commonwealth v Karth, 994 A.2d 606 (Pa. Super. 2010)) and/or directly
contradict Appellant’s contention (Commonwealth v James, 771 A.2d 33
(Pa. Super. 2001)).
Appellant ignores that 18 Pa.C.S.A. § 1106 provides that restitution
can be ordered as direct sentence or as a condition of probation/parole.
Specifically, in relevant part, § 1106 provides:
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.
(b) Condition of probation or parole.--Whenever restitution
has been ordered pursuant to subsection (a) and the offender
has been placed on probation or parole, his compliance with such
order may be made a condition of such probation or parole.
18 Pa.C.S.A. § 1106(a)-(b).
Here, as also acknowledged by Appellant, the sentencing court did not
impose restitution as a condition of probation or parole. Indeed, restitution
was ordered as part of the direct sentence. The fact that restitution has
been ordered as part of the direct sentence does not mean, as Appellant
argues, that the trial court “lacked supervisor[y] ability to assure restitution
payment.” Appellant’s Brief at 10. Where, as in the instant matter,
restitution has not been ordered as a condition of parole or probation, the
trial court “has the continuing power to monitor and enforce that sentence.
An order of restitution is enforceable until paid. However, the monitoring
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of appellant’s restitution payments does not make him eligible for
relief under the PCRA.” James, 771 A.2d 36 (citation omitted) (emphasis
added). James is directly on point, and Appellant provides no reason why
we should not apply James. Thus, under the circumstances, Appellant is no
longer serving his sentence. As a result, Appellant is not eligible for PCRA
relief.
In light of the foregoing, we conclude the PCRA court correctly
dismissed the petition, and it did not abuse its discretion in denying
Appellant a hearing on his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2016
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