Com. v. Heindl, S.

J-A18014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNON R. HEINDL :
:
Appellant : No. 57 WDA 2021
Appeal from the Judgment of Sentence Entered November 16, 2020
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000172-2004
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 30, 2021
Appellant, Shannon R. Heindl, appeals from a judgment of sentence
entered November 16, 2020, after the trial court found her guilty of indirect
criminal contempt (“ICC”). We vacate Appellant’s contempt conviction,
together with her November 16, 2020 judgment of sentence.
The pertinent facts and procedural history of this case are as follows:
While employed as a secretary for a probate law firm, Appellant withdrew
funds from the estate of Jared Jones, which the firm handled on behalf of its
client, Ruth Streich, the administratrix of the estate. N.T. Preliminary
Hearing, 7/29/04, at 4-5. Ms. Streich authorized one transaction, a loan in
the amount of $80,000.00. Id. at 6. Another $86,000.00 was withdrawn
without Ms. Streich’s knowledge or consent via pre-signed checks payable to
Appellant. Id. at 8, 10. After Ms. Streich approached her lawyer to discuss
the withdrawals, Appellant wrote six separate checks made payable to Ms.
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Streich to reimburse the estate. Id. at 12, 14. All of Appellant’s checks
were denied for insufficient funds. Id. On June 3, 2005, Appellant pleaded
guilty to bad checks,1 graded as a felony of the third degree. Following
Appellant’s guilty plea, the trial court twice attempted to schedule a
restitution hearing before entering the following order:
AND NOW, this 28th day of September, 2005, upon stipulation
of [Appellant], who is represented by Benjamin J. Vrobel[,
Esquire], and the Commonwealth, IT IS ORDERED that
restitution shall be in the amount of $166,000.[00.]
Trial Court Order, 9/29/05 (emphasis added). The order further directed the
Elk County Probation Department to prepare a presentence investigation
(“PSI”) report. Id. On January 9, 2006, the trial court sentenced Appellant,
inter alia, to the following:
1. [Appellant] shall be placed on probation for a period of seven
years under the supervision of the Elk County Probation
Department.
* * *
3. [Appellant] shall pay restitution in the amount of
$166,000[.00] to Ruth Streich, [A]dministratrix of the Estate of
Jared Jones.
Trial Court Order, 1/11/06. Appellant filed neither a post-sentence motion
nor a notice of appeal challenging her January 9, 2006 judgment of
sentence.
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1 18 Pa.C.S.A. § 4105(a)(1).
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In the ensuing years, Appellant made several monthly payments
toward restitution. Appellant’s last restitution payment occurred on April 18,
2016, see Trial Court Opinion, 3/29/21, at 1, after which the Commonwealth
filed a delinquency notice with the trial court on June 8, 2016. See Trial
Court Docket Entry, 6/8/16.
On April 3, 2018, the Commonwealth filed a petition for
contempt alleging that [Appellant’s] outstanding restitution
balance as of April 3, 2018, was $141,612.50, and that
[Appellant’s] last payment occurred on April 18, 2016. A
hearing was initially held on September 17, 2018, and an [o]rder
entered [ ] on September 17, 2018. [Appellant] appealed [the
September 17, 2018 o]rder and on November 5, 2019, the
appeal was quashed on the basis that [the September 17, 2018
o]rder was not a final order. Following the first appeal, a
hearing was held on November 16, 2020, and an [o]rder entered
finding [Appellant] in indirect criminal contempt of the [trial
c]ourt’s [January 9, 2006 sentencing] order and sentencing
[Appellant] to a [90]-day period of incarceration with the ability
to purge herself of the contempt.
Trial Court Opinion, 3/29/21, at 1. This appeal followed.2
Preliminarily, we must determine the timeliness of Appellant’s appeal,
as it implicates our jurisdiction. See Commonwealth v. Green, 862 A.2d
613, 615 (Pa. Super. 2004) (“Jurisdiction is vested in the Superior Court
upon the filing of a timely notice of appeal”). “A direct appeal in a criminal
proceeding lies from the judgment of sentence.” Commonwealth v.
____________________________________________
2 Pursuant to Pa.R.A.P. 1925(b), the trial court ordered Appellant to file a
concise statement of errors complained of on appeal, which Appellant timely
filed on February 4, 2021. The trial court issued its 1925(a) opinion on
March 29, 2021.
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Patterson, 940 A.2d 493, 497 (Pa. Super. 2007) (citation omitted). Absent
filing a timely post-sentence motion, an appellant must file his or her appeal
“within 30 days of the imposition of the judgment of sentence in open
court.” Pa.R.A.P. 903(c)(3) (emphasis added); see also Pa.R.Crim.P.
720(A)(3) (“If the defendant does not file a timely post-sentence motion,
the defendant’s notice of appeal shall be filed within 30 days of imposition
of sentence.”) (emphasis added). Where an appellant foregoes the filing of
a timely post-sentence motion, “the appeal period begins to run from the
date sentence is imposed.” Commonwealth v. Dreves, 839 A.2d 1122,
1127 (Pa. Super. 2003) (citation and quotation omitted). Here, the trial
court imposed Appellant’s judgment of sentence in open court on November
16, 2020 and Appellant elected not to file a post-sentence motion. See N.T.
Contempt Hearing, 11/16/20, at 40-41. Consequently, Appellant needed to
file her notice of appeal within 30 days of November 16, 2020, i.e., on or
before December 16, 2020. Pa.R.A.P. 903(c)(3); Pa.R.Crim.P. 720(A)(3).
Appellant’s notice of appeal filed on January 7, 2021, therefore, is patently
untimely.
Notwithstanding the untimely nature of Appellant’s notice of appeal,
“we must determine whether an administrative breakdown in the court
system excuses the untimely filing of the notice of appeal.” Patterson, 940
A.2d at 498. Our caselaw and procedural rules mandate that trial courts
confirm, on the record at the time of sentencing, that the defendant has
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been advised of, inter alia, the nature and timing requirements of his or her
post-sentence and appellate rights. See Pa.R.Crim.P. 704(C)(3)(a). The
failure to so advise a defendant on the record at the time of sentencing
constitutes a breakdown in the court system which excuses the untimely
filing of a notice of appeal. Patterson, 940 A.2d at 498.
A review of the certified record reveals that neither the trial court nor
defense counsel, at the time of sentencing, advised Appellant of her right to
file a post-sentence motion, a notice of appeal, or the timeframe within
which to take such action. See N.T. Contempt Hearing, 11/16/20, at 40-41.
This failure to advise Appellant of her appellate rights constitutes a
breakdown in the operation of the court; as such, we will not quash the
instant appeal as untimely. Commonwealth v. Wenzel, 248 A.3d 540,
547 (Pa. Super. 2021).
Within her brief, Appellant raises the following claims:
1. Did the trial court err and/or violate the Appellant’s due
process rights by failing or refusing to hold a hearing regarding
the legality of restitution; and whether or not the restitution
awardee is a “direct victim” as contemplated by 18 [P.S.]
§ 11.103; and further setting a legally inappropriate award; and
because of these fundamental errors should the restitution be
stricken?
2. Did the trial court act illegally and fail to follow its duties, by
failing to have a restitution hearing in excess of 16 years, and
further failing to collect for restitution or revoke [Appellant’s]
probation during the ten years she was on probation, and further
failing twice to have a full hearing; and finally after years of
delay the [trial] court failed to follow the law with regard to
setting and collecting restitution, specifically to 18 Pa.C.[S.]A.
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§ 1106(f) and because of these errors should the court be barred
from collections for the improprieties as well as by latches?
3. Did the [trial] court violate its duty to be a determiner of
restitution and the amount to be paid by the Appellant by setting
the full amount of restitution due and owing then finding the
Appellant in contempt and sentencing her to 90 days in jail, and
turning issues of ability to pay, a payment plan and evaluation of
medical documentation over to the adult probation office?
Appellant’s Brief at 4-5 (extraneous capitalization omitted).
On appeal, Appellant challenges a judgment of sentence imposed after
she was found in ICC.3 We review ICC determinations for an abuse of
discretion. In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super.
2004). An abuse of discretion is not merely an error of judgment, but is
rather “the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Griffiths, 15 A.3d 73, 76 (Pa. Super. 2010). A well-settled principle of
criminal contempt jurisprudence holds that an individual cannot be held in
contempt for violating an order that the trial court lacked authority to issue.
See Commonwealth v. Null, 186 A.3d 424, 429 (Pa. Super. 2018)
____________________________________________
3 ICC is a violation of a court order that occurred outside the court’s
presence. Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa. Super.
2003). The elements of ICC are: (1) the court’s order was definite, clear,
specific, and leaving no doubt in the person to whom it was addressed of the
conduct prohibited; (2) the contemnor had notice of the order; (3) the act
constituting the violation was volitional; and (4) the contemnor acted with
wrongful intent. Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa.
2008).
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(“[W]here a court enters an order without authority or legal right to make
such an order, it is powerless to attempt its enforcement. … The
disregarding of an order in excess of the court’s authority does not give rise
to contemptuous conduct by the parties involved.”) (quotation and citation
omitted). Because Appellant cannot be held in contempt for violating an
order that the sentencing court was not authorized to impose, we consider
whether the sentencing court possessed authority to order restitution as it
did in this case.
The trial court imposed restitution, not as a condition of probation, but
rather as a separate sentence under 18 Pa.C.S.A. § 1106. The version of
§ 1106 that was in effect when Appellant was originally sentenced provided,
in relevant part:
(c) Mandatory restitution. –
(1) The court shall order full restitution:
(i) … so as to provide the victim with the fullest
compensation for the loss. …
* * *
(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 Compensation
Fund if compensation has been paid by the Crime Victim’s
Compensation Fund to the victim and any insurance company
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that has compensated the victim for loss under an insurance
contract.
18 Pa.C.S.A. § 1106 (repealed Oct. 24, 2018, P.L. 891, No. 145, § 1,
effective Jan. 31, 2005). Appellant argues that, prior to the 2018
amendments, § 1106 did not permit designation of an estate or the
administratrix of an estate as a direct victim eligible to receive restitution.
Appellant’s Brief at 24. Therefore, the trial court lacked statutory authority
to impose her restitution sentence. In support, Appellant cites to the recent
cases of Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016) and
Commonwealth v. Hunt, 220 A.3d 582 (Pa. Super. 2019). To the extent
that Appellant specifically challenges her ICC conviction and judgment of
sentence, we agree.
Our Supreme Court undertook a full evaluation of the pre-amendment
version of § 1106 in Veon to determine whether the then-existing version of
§ 1106 (and the version applicable herein) contemplated a government
agency in its definition of a “victim.” In defining “victim,” the Court
explained:
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”). See Commonwealth v. Brown, 981 A.2d
893, 896 n.9 ([Pa.] 2009). 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.
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(3) A minor child who is a material witness to [enumerated
crimes and offenses] committed or attempted against a
member of the child’s family[.]
* * *
(4) A family member of a homicide victim, including
stepbrothers or stepsisters, stepchildren, stepparents or a
fiancé, one of whom is to be identified to receive
communication as provided for in this act, except here 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. Id. [ ]
Veon, 150 A.3d at 465 (emphasis in original) (parallel citation omitted).
After undertaking a thorough review of applicable caselaw and legislative
history, the Veon Court concluded:
[I]t is clear that the plain text of Section 11.103[, which sets
forth the definition of “victim” incorporated by reference into
section 1106,] still envisages “victims” as “persons[.”] 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
government agency, and nowhere else is there a relevant
definition that persuades us to broaden the common
understanding of these words.
Id. at 472.
After the Supreme Court’s ruling in Veon, our General Assembly
amended § 1106 to broaden the applicability of § 1106. Within the
amendments, the General Assembly added to the list of entities to which
restitution payments may be made. See § 1106(c)(1)(ii) (P.L. 891, No.
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145, § 1, effective Oct. 24, 2018) (outlining order of priority for restitution
payments where there are multiple victims). The list now includes:
(A) Any individual.
(A.1) Any affected government agency.
(B) The Crime Victim’s Compensation Board.
(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.
(E) Any estate or testamentary trust.
(F) Any business entity organized as a nonprofit or not-for-profit
entity.
(G) Any other business entity.
Id. (emphasis added).
After the amendments were enacted, this Court, in Hunt, again
evaluated the entities encompassed within the statute’s definition of “victim”
for criminal events that occurred prior to the 2018 amendments. Hunt, 220
A.3d at 586. This Court in Hunt declined to retroactively apply the newly
encompassed entities within the definition of victim. Id. In line with the
Supreme Court’s holding in Veon, this Court reiterated that the
pre-amendment version of § 1106 referred to an “individual” as a “natural
person.” Id. at 590. Thus, prior to the 2018 amendments, the applicable
definition of “victim” within the context of an award of restitution excluded
corporate entities. Id. at 591.
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Consequently, our review of Veon and Hunt makes clear that the
pre-amendment version of § 1106 contemplates only natural persons as
victims to whom restitution payments may be made. Veon, 150 A.3d at
454; Hunt, 220 A.3d at 591.
In this case, the entity which sustained the direct loss was the estate
of Jared Jones. Several factors point to this conclusion. First and foremost,
the trial court says as much in its 1925(a) opinion. In summarizing
Appellant’s present challenge to the legality of her sentence, the trial court
explains:
[Appellant] now asserts that since Ruth Streich, Administratrix
of the victim estate is now deceased, that the order now fails
to comply with 18 Pa.C.S.A. § 1106(c)(2). However, whether or
not the administratrix is deceased does not alter the fact that
the January 9, 2006 [s]entencing [o]rder specified both the
amount and method of restitution payable to the victim estate.
Trial Court Opinion, 3/29/21, at 2 (emphasis added).
A closer examination of the record confirms that the estate, not Ms.
Streich, sustained a direct loss. Appellant’s underlying conviction stemmed
from her withdrawal of funds from an estate while it remained in probate
and before it was settled and its proceeds distributed.4 N.T. Preliminary
Hearing, 7/29/04, at 4-5. Appellant’s judgment of sentence directed
____________________________________________
4 An estate is the real and personal property one leaves after death which
passes to heirs or testamentary beneficiaries. See Black’s Law Dictionary
(2019). The process of administering a decedent’s estate before settlement
and distribution is known as probate. Id.
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restitution to be paid “to Ruth Streich, Administratrix of the Estate of
Jared Jones,” not “to Ruth Streich.” See Trial Court Order, 1/9/06
(emphasis added). While it was assumed, and eventually determined, that
Ms. Streich would become the sole heir and beneficiary of the estate, legal
title to estate property had yet to be effectively determined and conveyed to
Ms. Streich, either at the time of the offense or at the time of sentencing.
Because Ms. Streich lacked legal title to estate property during the relevant
periods, Ms. Streich did not suffer a direct loss because of Appellant’s crimes
and the trial court could not (and did not) order the payment of restitution to
Ms. Streich individually. Instead, the trial court directed that restitution be
paid “to the victim estate.” See Trial Court Order, 1/9/06; see also Trial
Court Opinion, 3/29/21, at 2.
Although the estate of Jared Jones sustained a direct loss due to
Appellant’s improper withdrawal of estate funds, the estate, obviously, is not
a natural person. Thus, under the then-applicable version of § 1106, the
estate could not be considered a victim entitled to an award of restitution.
Veon, supra; Hunt, supra. As such, the trial court lacked authority to
order restitution under these circumstances. Consequently, Appellant
cannot be held in contempt for failing to obey an unlawful court order. Null,
supra.
Although we conclude that Appellant cannot be held in indirect criminal
contempt because the trial court lacked authority to order restitution
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payments to an unsettled estate, we hasten to note that we take no action
in addressing the original January 9, 2006 restitution order. A direct
challenge to the legality of the 2006 judgment of sentence must be litigated
within the context of the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546.5 Our conclusion eliminates the necessity to consider
Appellant’s remaining claims.
Judgment of sentence for indirect criminal contempt vacated.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2021
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5 Section 9542 provides that the PCRA “shall be the sole means of obtaining
collateral relief” for those “serving illegal sentences[.]” 42 Pa.C.S.A. § 9542.
Consequently, because a challenge to the legality of a sentence is cognizable
under the PCRA, Appellant is required to litigate such a challenge through a
proper PCRA petition. See Commonwealth v. Moore, 247 A.3d 990, 998
(Pa. 2021). Outside the parameters of the PCRA, this Court is without
jurisdiction to examine such an issue. See Commonwealth v. Fowler, 930
A.2d 586, 592 (Pa. Super. 2007) (“A court may entertain a challenge to the
legality of the sentence so long as the court has jurisdiction to hear the
claim.”) (citation omitted).
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