Com. v. Gonzalez, L.

J-S53045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS ANGEL GONZALEZ, :
:
Appellant : No. 1337 EDA 2019
Appeal from the Judgment of Sentence Entered February 19, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003907-2018
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 13, 2019
Appellant Louis Angel Gonzalez appeals from the judgment of sentence
imposed following his guilty plea to receiving stolen property. 1 Appellant
argues that the restitution portion of his sentence is illegal. We vacate
Appellant’s sentence and remand for resentencing.
The trial court opinion set forth the relevant facts of this appeal as
follows.
[Appellant’s] conviction stemmed from an incident that occurred
on or about August 17, 2018 at the BB&T Bank located at 850
Commons Drive, West Sadsbury Township. . . . Approximately
[$2,755.88] was taken from the bank when [Appellant] cashed a
computer-generated counterfeit check, made payable to
[Appellant] from a compromised account.
Trial Ct. Op., 6/28/19, at 2.
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1 18 Pa.C.S. § 3925(a).
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On February 19, 2019, Appellant executed a written guilty plea colloquy
for the offense of receiving stolen property. In relevant part, the written
colloquy indicated that the Commonwealth agreed to a sentence of time
served to eighteen months’ imprisonment. The colloquy included a
handwritten notation that restitution was “payable per judge’s order not to
exceed $2,755.88.” Written Colloquy, 2/19/19, at 3. The Commonwealth
further agreed to withdraw all remaining charges in exchange for Appellant’s
plea.
Also on February 19, 2019, the trial court conducted an oral colloquy.
During the oral colloquy, Appellant’s counsel clarified the issue surrounding
the imposition of restitution:
THE COURT: Now, it says restitution payable per judge’s order.
Does that mean I have to have a hearing to determine the amount
of the restitution?
[Appellant’s Counsel]: No, your Honor. We’re just asking you to
make a determination if [Appellant] owes it or not. And then
based on that decision, we can decide what we have to do. We’re
not looking for a restitution hearing.
N.T., 2/19/19, at 19. Thereafter, Appellant’s counsel made the following
argument opposing the imposition of restitution:
I believe this criminal incident happened August of 2018. At that
point, Commonwealth vs. Veon[, 150 A.3d 435 (Pa. 2016),]
was the prevailing law in the land, saying that restitution could
not be ordered to a company. In this case, a bank would fit that
bill.
And just because they have now fixed that with legislation in
October of 2018 doesn’t rectify the fact that it was the prevailing
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law.[2] [I] think it’s ex post facto, and I would ask that you not
order it, please, your Honor.
Id. at 25-26.
At the conclusion of the oral colloquy, the trial court accepted Appellant’s
negotiated guilty plea. The trial court imposed the agreed-upon sentence of
time served to eighteen months’ imprisonment. The trial court also ordered
Appellant to pay $2,755.88 in restitution to BB&T Bank. In a separate order
also entered on February 19, 2019, the trial court granted Appellant’s
immediate release on parole.
The Court of Common Pleas docket entries do not indicate that Appellant
filed a post-sentence motion with the clerk of courts.3 The trial court,
however, entered an order denying a post-sentence motion on March 29,
2019. In its order, the trial court repeated its conclusion from the sentencing
hearing that “BB&T Bank does qualify as a person entitled to restitution,”
pursuant to Section 1106. Order, 3/29/19. The trial court subsequently
____________________________________________
2 Section 1106 of the Crimes Code governs the imposition of restitution.
Effective October 24, 2018, the Pennsylvania General Assembly amended the
statute to reflect that a “business entity” could be a “victim” entitled to
restitution. See 18 Pa.C.S. § 1106(h). We emphasize that “this Court has
already held that these specific amendments to [Section] 1106 should not be
effective in criminal cases that began before the effective date of the
legislation. . . .” Commonwealth v. Hunt, ___ A.3d ___, 2019 PA Super
296, 2019 WL 4783495, *3 (Pa. Super. filed Oct. 1, 2019) (citing
Commonwealth v. Tanner, 205 A.3d 388, 396 n.7 (Pa. Super. 2019)).
3 Appellant claims that he filed his post-sentence motion, but it “was lost by
all parties in the matter, with no record of the date it was submitted.”
Appellant’s Brief at 5 n.1. The Commonwealth does not dispute Appellant’s
contention. See Commonwealth’s Brief at 2-3.
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entered an order to clarify that Appellant timely submitted a post-sentence
motion “to chambers only within 10 days of Appellant’s guilty plea and
sentence on February 19, 2019.” Order, 5/10/19 (footnote omitted). The
trial court’s order included a copy of Appellant’s post-sentence motion as an
attachment.
Appellant filed a notice of appeal on April 26, 2019.4 The trial court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, which Appellant timely filed on May 13, 2019. The
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4 If a defendant files a timely post-sentence motion, the notice of appeal must
be filed within thirty days of the entry of the order deciding the motion.
Pa.R.Crim.P. 720(A)(2)(a). Absent a timely post-sentence motion, the notice
of appeal shall be filed within thirty days of imposition of sentence.
Pa.R.Crim.P. 720(A)(3). Here, the record indicates that Appellant did not
timely file a post-sentence motion with the clerk of courts. See
Commonwealth v. Laskaris, 561 A.2d 16, 19 (Pa. Super. 1989) (plurality)
(explaining that “[d]ocuments in criminal matters must be filed with the Clerk
of Courts, as required by 42 Pa.C.S.A. § 2756(a)(1)”); see also
Commonwealth v. Tedesco, 550 A.2d 796, 798 (Pa. Super. 1988) (stating
that even if local custom requires a copy of a motion to be filed with the trial
judge, the original must still be filed with the clerk of courts in timely fashion).
Here, however, the record reveals that (1) Appellant raised his challenge to
the imposition of restitution at the sentencing hearing; (2) Appellant served a
copy of the post-sentence motion to the trial judge within ten days of the
sentencing hearing; (3) the trial court considered the motion to be timely
submitted and addressed it on the merits; (4) Appellant filed a notice of appeal
within thirty days of the order deciding the motion; and (5) the trial court
subsequently entered an order to clarify the procedural history of the matter,
which included a copy of the post-sentence motion as an attachment. Under
the narrow circumstances of this case, we will engage in a review of the merits
of Appellant’s appeal. See Tedesco, 550 A.2d at 798 (reviewing the merits
of the appeal, even though the defendant did not properly file his post-verdict
motion with the clerk of court within ten days of sentencing, where the
defendant presented the motion to the trial judge in chambers and the judge
characterized the motion as “timely”).
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trial court filed a responsive opinion, reiterating that BB&T Bank qualifies as a
“person” entitled to restitution under Section 1106. See Trial Ct. Op. at 7.
Appellant now raises two questions for our review:
[1.] Was the order for restitution unconstitutional pursuant to the
Pennsylvania Supreme Court’s holding in Commonwealth v.
Veon, 150 A.3d 435 (Pa. 2016)?
[2.] Does the restitution requirement imposed by judgment of
sentence constitute ex post facto implementation of 18 Pa.C.S. §
1106?
Appellant’s Brief at 4.
In his first issue, Appellant contends that he committed his offense on
August 16, 2018, and the version of Section 1106 in effect on that date
governs the propriety of restitution in this case. Id. at 9. Appellant insists
that the Veon Court interpreted the word “victim” in the prior version of
Section 1106 to mean “individuals” or “human beings,” but not business
entities. Id. at 24. Appellant acknowledges that our legislature subsequently
amended Section 1106, expanding the definition of victim to include business
entities. Id. “This amendment, however, took effect on October 24, 2018,
months after [Appellant’s] offense occurred under the old statute.” Id.
Appellant concludes that the trial court erred by ordering him to pay restitution
to the bank because the trial court’s order violated the holding in Veon. Id.
at 18-19.
The relevant standard and scope of review are as follows:
We note that in the context of criminal proceedings, an order of
restitution is not simply an award of damages, but, rather, a
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sentence. As such, 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. Accordingly, the 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. This case will also necessarily call upon us to engage in
statutory construction, which similarly presents a pure question of
law and also implicates the legality of [the] sentence. Thus, our
standard of review is de novo and our scope of review is plenary.
Hunt, ___ A.3d at ___, 2019 WL 4783495 at *2 (citations and internal
alterations omitted).
The version of Section 1106 in effect at the time of Appellant’s offenses
provided, in pertinent part, as follows:
(a) General rule.―Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, . . . 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:
(i) Regardless of the current financial resources of the
defendant, so as to provide the victim with the fullest
compensation for the loss. . . .
(ii) If restitution to more than one person is set at the
same time, the court shall set priorities of payment.
However, when establishing priorities, the court shall
order payment in the following order:
(A) The victim.
(B) The Crime Victim’s Compensation Board.
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(C) Any other government agency which has
provided reimbursement to the victim as a
result of the defendant’s criminal conduct.
(D) Any insurance company which has provided
reimbursement to the victim as a result of the
defendant’s criminal conduct.
* * *
(h) Definitions.―As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
* * *
“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.
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(a), (c), and (h) (repealed Oct. 24, 2018, P.L. 891, No. 145,
§ 1, effective Jan. 31, 2005) (internal footnote omitted).
Regarding the statutory reference in the definitions section, “Section
479.1, formerly codified at 71 P.S. § 180–9.1, since has been recodified in the
Crime Victims Act, 18 P.S. §§ 11.101, et seq. (the ‘CVA’).” Veon, 150 A.3d
at 449 (citation omitted). The CVA defines “victim” 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 any of the following
crimes and offenses under 18 Pa.C.S. (relating to crimes and
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offenses) committed or attempted against a member of the child’s
family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim, including stepbrothers
or stepsisters, stepchildren, stepparents or a fiance, one of whom
is to be identified to receive communication as provided for in this
act, except where the family member is the alleged offender.
18 P.S. § 11.103. “A ‘[d]irect victim’ is defined by the same section 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.’” Veon, 150 A.3d at
449 (emphases in original).
In Veon, our Supreme Court’s review of the relevant statutes,
legislative histories, and prior case law led to its holding that a government
agency, the Pennsylvania Department of Community and Economic
Development, was “neither a ‘direct victim’ nor a reimbursable compensating
government agency under Section 1106.” Id. at 455 (footnote omitted).
Importantly, the Supreme Court scrutinized the language in Section 11.103
and determined that it applied to human beings only:
Notwithstanding any legislative expansion of the definition of
“victim,” it is clear that the plain text of Section 11.103 still
envisages “victims” as “persons” commonly understood. A
“victim” under Section 11.103 must be “a direct victim,” i.e., an
“individual” who has suffered injury, death, or loss of earnings; or
a “child,” “parent,” “guardian,” or “family member.” Every
relevant noun unequivocally describes a human being, not a
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government agency, and nowhere else is there a relevant
definition that persuades us to broaden the common
understanding of these words.
Id. at 454.
In light of the holding in Veon, this Court subsequently concluded that
the inter-related definitions of “direct victim,” “individual,” and
“natural person” pursuant to the pre-amendment version of
[Section] 1106 do not include corporate entities. . . . Such a
conclusion is necessitated by a plain reading of these statutes, and
has the additional virtue of giving full weight to the Supreme
Court’s discussion of these same provisions in Veon.
Hunt, ___ A.3d at ___, 2019 WL 4783495 at *7 (footnotes omitted and
emphasis added).
Instantly, the trial court ordered Appellant to pay restitution to BB&T
Bank. Based upon this Court’s holding in Hunt, the definition of “victim” under
the pre-amendment version of Section 1106 does not include a corporate
entity such as BB&T Bank. Therefore, the restitution portion of Appellant’s
sentence is illegal, and we vacate that portion of Appellant’s judgment of
sentence. See Veon, 150 A.3d at 453; Hunt, ___ A.3d at ___, 2019 WL
4783495 at *7. Accordingly, we remand this case for resentencing consistent
with this decision.5
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
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5 Due to our disposition, we need not address Appellant’s second issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2019
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