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HomeMy WebLinkAbout01-2481 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID FITZGERALD KELLY OTN: E936204-3 01-2481 CRIMINAL TERM CHARGE: (1) THEFT BY UNLAWFUL TAKING OR DISPOSITION AFFIANT: TPR. MICHAEL MITCHELL IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., February 27, 2003. In this criminal case in which Defendant pled guilty to theft by unlawful taking,~ he was sentenced to pay the costs of prosecution, make restitution to the victim in the amount of $215.00, and undergo imprisonment for a period of not less than five months nor more than twelve months.2 He subsequently filed a Post Conviction Relief Act petition challenging the legality of the sentence in terms of the restitution figure.3 A hearing on the petition was held on December 11, 2002. At the conclusion of the hearing, the court took the matter under advisement.4 On January 9, 2003, the court issued an order denying the petition.5 From this order, Defendant has filed a timely appeal to the Pennsylvania Superior Court.6 The basis for the appeal, as expressed in Defendant's statement of matters complained of on appeal, is as follows: ~ Order of Court, Feb. 21, 2002. : Order of Court, Apr. 2, 2002. Neither a motion to modify sentence nor a direct appeal was filed with respect to the judgment of sentence. N.T. 20, Hearing on Defendant's Post Conviction Relief Act Petition, Dec. 11, 2002 (hereinafter N.T. ~. ~ Defendant's Motion for Post Conviction Collateral Relief, filed Sept. 3, 2002.; N.T. 4-5. In response to Defendant's request for appointment of counsel, the court appointed Charles P. Mackin, Esq., to represent him. Order of Court, Sept. 5, 2002. 4 Order of Court, Dec. 11, 2002. 5 Order of Court, Jan. 9, 2003. 6 Defendant's Notice of Appeal, filed Feb. 6, 2003. Defendant's sentence is illegal, as it improperly and unlawfully includes a directive for restitution which was not based on evidence, but rather as compensation for pain and suffering, and further, trial counsel rendered ineffective assitance when he failed to object/appeal this matter.7 This opinion in support of the order denying Defendant's petition under the Post Conviction Relief Act is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an incident occurring in September 2001 in North Newton Township, Cumberland County, Pennsylvania, Defendant was charged with theft by unlawful taking or disposition8 and access device fraud.9 According to the affidavit of probable cause accompanying the complaint, Defendant admitted to police that he had stolen the victim's social security card, MasterCard, and Visa card, had charged $45.00 in telephone calls on the cards, and had attempted to utilize them to obtain money from ATM machines.l° Defendant, who had accumulated an extensive and serious criminal record dating back to 1987,~ pled guilty in a plea bargain on February 21, 2002, to the theft charge.~2 In addition to disposing of the access device fraud charge, the Commonwealth agreed to recommend a sentence of time-served.~3 The terms of 7 Defendant's Concise Statement of Matters Complained of on Appeal, filed Feb. 20, 2003. Defendant's petition, however, was not based upon ineffective assistance. See infra note 22. 8 Act of Dec. 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3921(a) (2002). 9 Act of Dec. 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4106(a)(1)(ii) (2002). l0 Petitioner's Ex. 1, Hearing on Defendant's Post Conviction Relief Act Petition, Dec. 11, 2002 (hereinafter Petitioner's Ex. 1). ~ Defendant's record from 1987 consisted of convictions for burglary, carrying a concealed weapon, selling cocaine, possession of cocaine, trespassing, criminal mischief, petty larceny, resisting an officer, selling fraudulent drugs, armed trespass, battery on a law enforcement officer, battery, possession of marijuana, aggravated assault, resisting arrest, escape, criminal mischief, theft from a motor vehicle, and three counts of receiving stolen property. Petitioner's Ex. 1. ~2 Order of Court, Feb. 21, 2002. ~s N.T. 2, Guilty Plea Colloquy, Feb. 21, 2002. 2 the plea bargain and recommendation as orally outlined in court by the Commonwealth at the time of the plea did not include an agreement as to restitution. ~4 A presentence investigation report was ordered by the court. ~5 The presentence investigation report indicated that the victim was requesting restitution for the $45.00 for telephone calls charged by Defendant and for $170.00 that the victim incurred in cell phone fees in the process of canceling all of his credit cards as a result of Defendant's misconduct. ~6 On April 2, 2002, Defendant was sentenced to pay the costs of prosecution, to make restitution in the amount of $215.00 to the victim, and to undergo a period of imprisonment of not less than five months (time-served) nor more than twelve months. ~7 No objection to the restitution figure was made at the time of sentence,la He was paroled immediately to a state prison sentence he was serving 19 from another county. Neither a motion to modify sentence nor a direct appeal was filed with respect to the sentence.2° On September 3, 2002, Defendant filed the petition under the Post Conviction Relief Act that is the subject of this opinion)~ The petition asserted that his plea bargain included an agreement that restitution would be limited to $45.00, and that the additional sum of $170.00 constituted an award for pain and suffering in contravention of the holding in Commonwealth v. ~4 N.T. 2-4, Guilty Plea Colloquy, February 21, 2002. In fairness to Defendant, it may be pointed out that a form signed by Defendant in connection with his plea indicated a restitution figure of $45.00. Guilty Plea Colloquy and Plea of Defendant, filed Feb. 21, 2002. ~s Order of Court, Feb. 21, 2002. 16 Petitioner's Ex. 1. ~v Order of Court, Apr. 2, 2002. ~8 N.T. 2-5, Sentencing Colloquy, Apr. 2, 2002. 19 Order of Court, Apr. 2, 2002; see N.T. 3, Sentencing Colloquy, Apr. 2, 2002. :o See N.T. 20. :~ Defendant's Motion for Post Conviction Collateral Relief, filed Sept. 3, 2002. 3 Cannon, 387 Pa. Super. 12, 30, 563 A.2d 918, 927 (1989) (holding that restitution that included assault victim's pain and suffering constituted illegal sentence).22 At a hearing on Defendant's petition, Defendant stated that he did not believe the victim's cancellation of his credit cards in response to the crime was unreasonable.23 His objection to the victim's claim was that the victim used a cell phone as opposed to a land line to effect the cancellations.~4 Defendant's position in this regard was summarized in the following exchange between Daniel J. Sodus, Esq., Senior Assistant District Attorney, and Defendant during cross-examination: Q Let me try one more time. The answer is, yes, it's not unreasonable to cancel the card[s]? A No, it's not unreasonable. Q Okay. And your chief complaint is, he should have been more reasonable in the way that he did it? He should have been more reasonable and more thoughtful about the way he fixed the damage you caused? A Yes.~5 The victim's unreasonableness in utilizing a cell phone instead of a land line to cancel all of his credit cards had the effect, according to Defendant, of transforming the victim's claim for reimbursement of this expense into a claim for In the petition, the following legal grounds were checked off as bases for relief: (a) a violation of the constitution of Pennsylvania or laws of this Commonwealth or the constitution of the United States which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place; (b) the imposition of a sentence greater than the lawful maximum; and (c) a proceeding in a tribunal without jurisdiction. Id. at 2. Grounds which were not checked off as bases for relief included (a) ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place, and (b) a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty. Id. 23 N.T. 13. 24 "[I]f you are going to cancel credit cards, why would you use a cell phone when you have a phone at home," according to Defendant. Id. 25 Id. 4 compensation for pain and suffering.26 By way of further explanation, Defendant stated: "[T]hat's how I took that, because that would fall in the contour of Commonwealth v. Cannon."27 In essence, Defendant's claim for relief was predicated on the belief that the $170.00 component of the restitution figure represented an unlawful type of recovery by a victim in a criminal case, thereby rendering the sentence illegal.2a As his counsel stated in argument at the conclusion of the hearing on Defendant's petition under the Post Conviction Relief Act: I would submit to the Court, Your Honor, that the appropriate place to start in considering a matter regarding restitution would be with the statute itself, 18 Purdon's Section 1106, the restitution statute. Again, Your Honor, very simply, in a nutshell, it's our argument that restitution is proper for a loss incurred of both real or personal property. That's the definition right from the statute. In this case I think we've established that the loss was $45.00, and based upon the testimony from Mr. Kelly, it's our position that [the victim], for whatever reason, just ran up the bill, and that's it, pure and simple. We don't believe that running up the bill was supported by the record. And according to the petition filed by Mr. Kelly, it's his position that, this is an illegal sentence.29 Following the hearing, the court took the matter under advisement.3° A transcript of Defendant's sentencing proceeding was thereafter prepared and filed at the court's request.3~ 26 N.T. 10-11. 27 N.T. 11. 28 In acceding to his prior counsel's decision not to directly appeal the sentence as it related to restitution, Defendant was satisfied to pursue his challenge to the restitution figure under the Post Conviction Relief Act because it was an "illegal sentence." Id. 29 N.T. 21-22. It may be noted that, as of the hearing on Defendant's petition, he had paid none of the restitution, including the $45.00 that he had not challenged. N.T. 24. 30 Order of Court, Dec. 11, 2002. 3~ The transcript of the guilty plea proceeding had been filed on September 17, 2002; the transcript of the sentencing proceeding was filed on December 16, 2002. 5 On January 9, 2003, the court entered an order denying Defendant's request for relief under the Post Conviction Relief Act.32 Defendant's appeal from this order was filed on February 6, 2003.33 DISCUSSION An illegal sentence is one for which no statutory authorization exists. See Commonwealth v. Syno, 791 A.2d 363,365 (Pa. Super. Ct. 2002). Such a sentence may be challenged under section 9543(a)(2)(vii) the Post Conviction Relief Act,34 and "an illegal sentence must be vacated." Id. Under Section 1106(a) of the Crimes Code, it is provided with respect to restitution in a criminal case as follows: 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. Act of June 18, 1976, P.L. 394, §1, as amended 18 Pa. C.S. §l106(a) (2002). "To determine the correct amount of restitution, a 'but-for' test is used-- damages which occur as a direct result of the crime are those which should not have occurred but for the defendant's criminal conduct." Commonwealth v. Gerulis, 420 Pa. Super. 266, 288, 616 A.2d 686, 697 (1992). The amount of restitution in a theft case is not limited by the grade of the offense. Id. However, restitution in a criminal case should not include a component for pain and suffering. Cannon, 387 Pa. Super. at 30, 563 A.2d at 927. In the present case, the court was unable to agree with Defendant's position that the restitutionary aspect of his sentence was without statutory authorization. As Defendant conceded, the victim's decision to cancel all his credit cards was a 32 Order of Court, Jan. 9, 2003. ~ Defendant's Notice of Appeal, filed Feb. 6, 2003. 34 Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9543(a)(2)(vii) (2002). 6 reasonable response to Defendant's criminal conduct. The victim's loss of $170.00 incurred in the process of effecting this decision would not have occurred in the absence of Defendant's misconduct, was a direct result of the misconduct, and was an actual expense. The sum did not represent an award for pain and suffering. Although a modification hearing might have resulted in a refinement of the figure ordered, the sentence was not unlawful in the sense contemplated by section 9543(a)(2)(vii) of the Post Conviction Act. Defendant's petition for relief under the Act.35 For this reason, the court denied BY THE COURT, J. Wesley Oler, Jr., J. Geoffrey S. Mclnroy, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender 35 To the extent that ineffective assistance of counsel is to be recognized on appeal as a component of Defendant's claim for relief, but see supra note 7, it may be noted that the conclusion herein that his sentence was not illegal would negate the premise underlying this aspect of Defendant's claim. 7