Commonwealth v. Tanner

J-S54025-18

2019 PA Super 62

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRIAN D. TANNER :

:

Appellant : No. 211 WDA 2018

Appeal from the PCRA Order January 23, 2018

In the Court of Common Pleas of Lawrence County Criminal Division at

No(s): CP-37-CR-0000060-2015,

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED FEBRUARY 27, 2019

Brian D. Tanner (Appellant) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm in part, and reverse and vacate in part.

In January 2015, Appellant, the former secretary-treasurer of Shenango

Township (Township), Lawrence County, was charged with dealing with

proceeds of unlawful activities, conspiracy to commit dealing with proceeds of

unlawful activities, forgery, corrupt organizations, access device fraud, and

theft by unlawful taking or disposition. The charges arose from Appellant’s

alleged receipt of unauthorized compensation in the amount of $650,000, in

addition to his W-2 salary, as well as his alleged unauthorized credit card

purchases using the Township’s credit card. Prior to trial, Appellant filed a

motion for change of venue, claiming that because of the immense media

coverage, he would be denied a fair and impartial trial in Lawrence County.

J-S54025-18

After a hearing held on July 9, 2015,1 the court denied Appellant’s motion

without prejudice.

The case proceeded to trial, and following direct examination of the

Commonwealth’s third witness, affiant Lawrence County Detective Vincent

Martwinski, Appellant decided to enter a negotiated guilty plea to seven counts

of forgery,2 three counts of theft by unlawful taking or disposition,3 and two

counts of access device fraud.4 On April 6, 2016, the Honorable Dominick

Motto, sitting as the trial court, accepted the Commonwealth’s

recommendation, and imposed a sentence of 2½ to 5 years of incarceration,

five years of probation, and $449,000 in restitution ($330,000 to be paid to

Shenango Township and $119,000 to be paid to Selective Insurance Company,

the Township’s bonding company).

Appellant neither filed post-sentence motions nor a direct appeal. On

April 12, 2017, Appellant filed a timely pro se PCRA petition; counsel was

appointed and filed an amended petition. On September 26, 2017, the trial

court held an evidentiary hearing, and on November 1, 2017, held oral

argument on the petition. On January 23, 2018, the PCRA court denied

____________________________________________

1At the hearing, the trial court accepted exhibits of newspaper articles (which

are included in the certified record on appeal) and ordered the parties to

submit briefs in advance of the court’s disposition.

2 18 Pa.C.S.A. § 4101.

3 18 Pa.C.S.A. § 3921.

4 18 Pa.C.S.A. § 4106.

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Appellant’s petition. Appellant filed a timely notice of appeal and court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

Appellant presents the following issues for our consideration:

(1) Did the PCRA [c]ourt commit error in denying Appellant

relief in the form of a new trial on the basis of ineffective

assistance of trial/guilty plea counsel, which as a result of

puffery, lack of investigation/preparation, and competent

strategy, induced him to enter a guilty plea [with

substantial restitution component] to a crime he did not

commit?

(2) Did the PCRA [c]ourt commit error in denying Appellant

relief in the form of a new trial on the basis of ineffective

assistance of trial/guilty plea counsel, as a result of the

failure to appeal the denial of transfer of venue or to

request a change of venire?

(3) Did the PCRA [c]ourt commit error in denying Appellant

relief in the form of a new trial on the basis of ineffective

assistance of trial/guilty plea counsel, as a result of failure

to pursue dismissal on the basis of selective prosecution?

(4) Is the restitution component of Appellant’s [s]entence in

the amount of $330,000 to Shenango Township illegal

and does his sentence have to be vacated as a matter of

law as a result?

Appellant’s Amended5 Brief at 4.

The standard of review of an order denying a PCRA petition is whether

the PCRA court’s determination is supported by the record and free of legal

error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations

____________________________________________

5 On June 15, 2018, this Court granted Appellant’s motion to amend his

appellate brief to include an illegality of sentence issue as it related to the

restitution portion of his sentence. See Order, 6/15/18.

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and citations omitted). “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that his] conviction or

sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A.

§ 9543(a)(2)[.]” Id.

In his first issue, Appellant contends that the PCRA court erred in failing

to grant him a new trial, where counsel was ineffective for: inducing him to

plead guilty; failing to prepare him and witnesses for trial; never hiring

investigators or reviewing the video/audio recordings of the Commonwealth’s

potential witnesses; and advising him that his wife’s arrest was imminent if

he did not plead guilty. Appellant claims that he “was ready and willing to

prove his innocence at trial through cross-examination, third-party witnesses,

documents, and his own testimony, but was thwarted by his own counsel’s

failure to adequately investigate and prepare for his trial and/or to properly

advise/strategize with him pre-trial.” Appellant’s Amended Brief at 27.

Succinctly stated, Appellant asserts that “counsel’s lack of investigation,

preparation and coherent strategy clearly led to [his] abrupt guilty plea, mid-

trial.” Id. at 29. After careful review of the parties’ briefs, the relevant case

law and the certified record, we agree with the PCRA court’s determination

that counsel was not ineffective for the above-enumerated reasons. We rely

upon the opinion, authored by Judge Motto, in affirming the denial of post-

conviction relief on these ineffectiveness of counsel issues. See PCRA Court

Opinion, 1/23/18, at 29-33 (counsel properly prepared for trial where he met

with Appellant on several occasions to review discovery, counsel explained

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discovery to Appellant, provided Appellant with opportunity to review

discovery on his own, counsel spoke with former Shenango Township

Supervisor and Appellant’s father-in-law, counsel formulated defense after

conversing with Appellant, counsel spoke with Appellant during all trial

recesses, including lunch time, to discuss aspects of trial; counsel’s failure to

subpoena witnesses would not have prevented them from testifying at trial

where counsel had spoken with those witnesses and they were willing to testify

on Appellant’s behalf if necessary; Appellant’s father­in-law had been issued

a subpoena by the Commonwealth which ensured his attendance; counsel had

sufficient time to issue other subpoenas if necessary for trial; and other

witnesses counsel wished to call were on Commonwealth’s list and would be

available for trial); id. at 42-45 (Appellant signed written guilty plea

acknowledging he understood nature of charges, including elements of

offenses, was aware of maximum legal sentence, understood right to jury trial,

knew that Commonwealth’s sentencing recommendation was not binding upon

court, Appellant confirmed he entered guilty plea of own free will and without

coercion, had opportunity to review written colloquy with counsel, and

Appellant acknowledged it had been adequately explained to him and he was

satisfied with counsel’s representation; Appellant’s on-the-record colloquy,

during which he never voiced an objection, indicated he understood the nature

of charges and admitted to factual bases for charges, was aware of right to

jury trial and presumption of innocence, was advised of permissible sentence

ranges, knew court not bound by sentence recommendation, was satisfied

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with counsel’s representation and that counsel had addressed any questions

he had).

In his next issue, Appellant contends that counsel was ineffective for

failing to appeal the court’s decision to deny, without prejudice, his request to

transfer venue due to negative pre-trial publicity, or to request a change of

venire.

We first note that the mere existence of pre-trial publicity does not

warrant a presumption of prejudice. Commonwealth v. Chambers, 685

A.2d 96, 103 (Pa. 1996). “Our inquiry must focus upon whether any juror

formed a fixed opinion of the defendant’s guilt or innocence as a result of the

pre-trial publicity.” Commonwealth v. Marinelli, 690 A.2d 203, 213 (Pa.

1997) (quotation omitted). Normally, what prospective jurors tell us about

their ability to be impartial will be a reliable guide to whether the publicity is

still so fresh in their minds that it has removed their ability to be objective.

Commonwealth v. Briggs, 12 A.3d 291, 314 (Pa. 2011). The discretion of

the trial judge is given wide latitude in this area. Id.

For pre-trial publicity to be presumptively prejudicial, a defendant must

prove, inter alia, “that the publicity [was] so extensive, sustained, and

pervasive without sufficient time between publication and trial for the

prejudice to dissipate, that the community must be deemed to have been

saturated.” Commonwealth v. Rucci, 670 A.2d 1129, 1141 (Pa. 1996). The

publicity must be so inflammatory and slanted toward conviction “rather than

factual and objective.” Marinelli, 690 A.2d at 213 (quotation omitted).

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“Finally, even if there has been inherently prejudicial publicity which has

saturated the community, no change of venue is warranted if the passage of

time has sufficiently dissipated the prejudicial effects of the publicity.”

Chambers, 685 A.2d at 103.

With regard to the denial of Appellant’s pre-trial motion to change

venue, we note that the trial court’s denial was entered without prejudice with

a right to re-file in the event that the selection of the jury revealed a difficulty

or impossibility to seat a fair and impartial jury. Thus, whether counsel was

ineffective for failing to file an interlocutory appeal of the denial of Appellant’s

motion must be viewed in light of the entire procedural backdrop of the case

- namely, the fact that the court left open the option for Appellant to re-file

his motion if an impartial jury became an impossibility at the time of voir dire.

Appellant specifically alleges that the pre-trial publicity in the local

Lawrence County newspaper and on local television stations was “extensive

and adverse.” Appellant’s Amended Brief at 35. He claims that “[i]t would

appear that [it] would have been a competent and effective strategy” to

appeal the denial of his motion to change venire and that counsel was

ineffective for failing to do so. Id. However, Appellant qualifies this statement

with the claim that the additional time he would have gained from an appeal

would have allowed counsel to better prepare him for trial and to gain a better

understanding of issues surrounding the prosecution of Appellant’s potential

co-defendant, the Township’s auditor, Deno Delorenzo. Such assertions,

however, fall short of establishing the pervasiveness and sustained negative

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publicity required to change or transfer venue of a case. Rucci, 670 A.2d at

1141.

Having viewed the newspaper articles attached to his motion to transfer

venue, we cannot say that they contained information that actually prejudiced

Appellant or that they were so presumptively prejudicial that he could not

have received a fair trial. See Commonwealth v. Casper, 392 A.2d 287

(Pa. 1978) (to determine whether publicity precludes fair trial, courts look to

whether pre-trial publicity was factual and objective or if it consisted of

sensational, inflammatory and slanted articles). The local articles contained

factual accounts of circumstances surrounding the investigation into

Appellant’s alleged criminal dealings. Appellant states in his brief that due to

the newspaper coverage the jury “could not have had a positive viewpoint of

[Appellant].” Appellant’s Amended Brief at 37.

Again, this assertion does not fulfill Appellant’s burden of proving that a

change of venue was required as a result of “extensive, sustained, and

pervasive” pretrial publicity. First, eleven months passed from the time of the

latest article (dated March 2015) until Appellant’s trial in February 2016. See

Commonwealth v. Walter, 119 A.3d 255 (Pa. 2015) (change of venue

properly denied where 11-month period between last publicity and trial was

sufficient to dispel prejudice; even where inflammatory or inculpatory publicity

is disseminated in sustained fashion and pervasively throughout community,

where that publicity is followed by “cooling off” period sufficient to dissipate

prejudicial effect, change of venue is unnecessary). Second, the court asked

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each potential juror whether he or she was aware of the case as a result of

pre-trial publicity and, if so, whether that publicity would cloud his or her

judgment in rendering a fair and impartial verdict in the case. Of the potential

jurors that had been exposed to the pre-trial publicity in the case, only two

stated that he or she could not be completely objective. As a result, they

were struck for cause. See N.T., 2/16/16, at 144; N.T., 2/17/16, at 57.

Moreover, in an abundance of caution, the court struck a third juror for

cause, even though he indicated he could be fair and unbiased, because he

had had conversations about the case with potential trial witnesses. See N.T.,

2/16/16, at 103.

Looking at the entire record, we cannot say that counsel was ineffective

for failing to file an interlocutory appeal where the question of the jury’s

impartiality had not yet been determined, and there remained a possibility of

Appellant re-filing a motion to change venue. See Trial Court Order, 9/4/15,

at 1 (court noted that although pre-trial publicity was extensive in case, it has

been objective and related generally to progress of case through court system

procedurally or involving issues brought before Township Board of Supervisors

only collaterally related to charges in case). We also find that counsel was

not ineffective for failing to file a motion for change of venire where the court

determined that the impaneled jury could be fair and impartial, after

conducting an extensive and thorough voir dire process and striking for cause

those jurors who had been exposed to pre-trial publicity and could not be

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objective and impartial. See 42 Pa.C.S.A. § 8702 (impaneling jury from

another county).

Next, Appellant asserts that counsel was ineffective for failing to move

to dismiss the case on the basis of selective prosecution. At trial, Appellant’s

defense rested largely on his claim that the unauthorized payments had been

approved by Delorenzo and that he had trusted Delorenzo to report the correct

1099 disclosures for compensation purposes. Appellant also contends that

the Township Sewer Secretary, Mary Gay, was paying herself above and

beyond her salary and was not prosecuted.

In Commonwealth v. Murphy, 795 A.2d 997 (Pa. Super. 2002), we

explained that to establish a prima facie case of selective prosecution:

a defendant must establish, first, that others similarly situated

were not prosecuted for similar conduct, and, second, that the

Commonwealth’s discriminatory prosecutorial selection was based

on impermissible grounds such as race, religion, the exercise of

some constitutional right, or any other such arbitrary

classification. The burden is on the defense to establish the claim;

it is error to shift the burden to the prosecution to establish or

refute the claim. Because of the doctrine of separation of powers,

the courts will not lightly interfere with an executive’s decision of

whom to prosecute.

Id. at 1000 (emphasis added).

We agree with the PCRA court that the evidence at trial was insufficient

to establish a claim of selective prosecution where neither Delorenzo nor Gay

had the authority to write themselves checks or had access to signature

stamps to do so. Moreover, Appellant did not show how the Commonwealth’s

prosecution was based on impermissible grounds such as race, religion or

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some other arbitrary classification. In fact, evidence was introduced that the

impermissible Township payments were discovered by an independent state

agency (the Pennsylvania Auditor General) and there did not appear to be a

political or improper motive in alleging the criminal activity. Finally, Appellant

was aware that his cooperation would be necessary to prosecute Delorenzo;

by failing to accept his own responsibility for the criminal activity, Appellant

prevented the Commonwealth from proceeding on any criminal prosecution of

Delorenzo. Under such circumstances, Appellant’s claim lacks merit.

In his fourth and final issue, Appellant asserts that “the restitution

portion of his sentence to Shenango Township in the amount of $330,000 is

illegal and must be vacated” because the Township is not a “victim” under our

Commonwealth’s restitution statute, 18 Pa.C.S.A. § 1106(a). 6 Appellant’s

Amended Brief at 42. Appellant cites the Pennsylvania Supreme Court’s

decision in Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016), which held

that a restitution order directing payment to a Commonwealth agency as the

“victim” of a crime under Section 1106 was illegal because the Commonwealth

was not a victim as that term is used in Section 1106 of the Crimes Code, nor

had it directly or indirectly reimbursed a victim as defined by Section 11.103

of the Crime Victims Act.

____________________________________________

6 Although Appellant did not raise this issue before the PCRA court, legality of

sentence issues are always subject to review if the PCRA petition is timely

filed. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

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The statute governing restitution for injuries to person or property, 18

Pa.C.S.A. § 1106, provides in relevant part:

(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.

* * *

(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. The court shall not reduce

a restitution award by any amount that the victim has

received from the Crime Victim’s Compensation Board

or other governmental agency but shall order the

defendant to pay any restitution ordered for loss

previously compensated by the board to the Crime

Victim’s Compensation Fund or other designated

account when the claim involves a government

agency in addition to or in place of the board. The

court shall not reduce a restitution award by any

amount that the victim has received from an

insurance company but shall order the defendant to

pay any restitution ordered for loss previously

compensated by an insurance company to the

insurance company.

(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.

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(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.

18 Pa.C.S.A. § 1106(a) & (c). Victim is defined under Section 1106 as:

“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.A. § 1106(h) (defining “victim”) (repealed Oct. 24, 2018, P.L. 891,

No. 145, § 1, effective Jan. 31, 2005).7

Likewise, the Crime Victims Act, 18 P.S. § 11.103, defines “victim”:

(1) A direct victim

(2) A parent of legal guardian of a child who is a direct victim,

except when the parent or legal guardian of the child is the

alleged offender.

____________________________________________

7 Because the events that led to Appellant’s conviction occurred before

October 24, 2018, this version of the statute applies. Section 1106(h) was

subsequently updated and now defines “victim”:

As defined in section 103 of the act of November 24, 1998 (P.L.

882, No. 111), known as the Crime Victims Act. The term includes

an affected government agency, the Crime Victim’s Compensation

Fund, if compensation has been paid by the Crime Victim’s

Compensation Fund to the victim, any insurance company that

has compensated the victim for loss under an insurance contract

and any business entity.

18 Pa.C.S.A. § 1106(h) (footnote omitted).

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(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 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

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 (1)-(4). “Direct victim” is defined in Section 11.103, in

pertinent part, as:

An 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. The term shall not include the alleged offender.

Id. (emphasis added).

Appellant asserts that his restitution sentence payable to Shenango

Township is illegal based on the Pennsylvania Supreme Court’s holding in

Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016). In Veon, the appellant

was a member of the Pennsylvania House of Representatives and used money

he was entitled to in his capacity as a Representative to fund his non-profit

corporation. A jury convicted appellant of theft by unlawful taking, theft by

failure to make required disposition of funds received, and misapplication of

entrusted property and property of government or financial institutions. Id.

at 451. The trial court sentenced appellant to incarceration, intermediate

punishment, and restitution to the Pennsylvania Department of Community

and Economic Development (DCED). On appeal, this Court affirmed the

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judgment of sentence in part, upheld the restitution as to certain counts, and

vacated as to others. See Commonwealth v. Veon, 109 A.3d 754 (Pa.

Super. 2015).

Mr. Veon filed a timely petition for allowance of appeal to the

Pennsylvania Supreme Court, which the Supreme Court granted on August

20, 2015. In addressing Mr. Veon’s challenge to his sentence of restitution,

the Court explained:

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

government agency, and nowhere else is there a relevant

definition that persuades us to broaden the common

understanding of these words. There can be no serious doubt that

DCED, the agency designated to receive the restitution ordered in

this case, does not qualify as a direct victim. And neither, of

course, is DCED a parent, guardian, child or family member of a

homicide victim. Although Subsection 1106(c)(1)(i)’s provisions

regarding “victims” and “other government agenc[ies]” reveals

that the General Assembly intended that restitution reach certain

Commonwealth agencies in a manner that did not depend upon

identifying such agencies as “victims,” it nonetheless required first

that the agency in question have provided compensation to a

victim so defined. That is what necessitates our determination

that DCED is not entitled to restitution in this case.

In short, to qualify for restitution under Subsection 1106(c)(1)(i),

a Commonwealth agency either must be a victim as that term is

used in that subsection or must have reimbursed a victim[,] as

defined by Section 11.103, directly or by paying a third party on

behalf of the victim. . . .

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Veon, 150 A.3d at 454 (emphasis added); see also Commonwealth v.

Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018) (“It is well-established that

the Commonwealth is not a victim entitled to restitution.”). As such, our

Supreme Court held that the restitution was illegal and vacated Mr. Veon’s

judgment of sentence.

Likewise, in the instant matter, pursuant to the reasoning in Veon,

Shenango Township is not a “victim” under Section 1106(c)(1)(i), nor an

entity that has reimbursed a victim, either directly or indirectly, as defined by

Section 11.103.8 See Veon, 150 A.3d at 454-55. Accordingly, we are

constrained to conclude that Appellant’s restitution to Shenango Township is

illegal and, therefore, void and unenforceable.

Although not raised by Appellant on appeal, we examine whether

Appellant is obligated to pay $119,000 in restitution to Selective Insurance

Company. Recognizing that an award of restitution relates to the legality of a

sentence, we note that legality of sentence issues “may be reviewed sua

____________________________________________

8 While this Court has not analyzed whether a township per se is a victim

entitled to restitution under Section 1106, we note that a township is one

entity that is regarded as a political subdivision of a Commonwealth. See 1

Pa.C.S.A. § 1991 (“A political subdivision is “[a]ny county, city, borough,

incorporated town, township, school district, vocational school district,

county institution district or municipal or other local authority.”). In many

provisions of the Pennsylvania Code, the Commonwealth and political

subdivisions are treated similarly. See 246 Pa. Code 312; see also 231 Pa.

Code 3159. Thus, we have used case law interpreting whether the

Commonwealth is a victim for purposes of Section 1106 to analyze the instant

issue involving a township.

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sponte by this Court.” Commonwealth v. Stradley, 50 A.3d 769, 774 (Pa.

Super. 2012) (citation omitted).

An insurance company is only entitled to restitution if it is a victim as

defined by Section 11.103, or it has compensated a victim for loss under

Section 1106. See 18 Pa.C.S.A. § 1106(c)(1)(ii)(D); 18 P.S. § 11.103. As

stated above in the context of a government agency, Section 11.103 defines

a “victim” as an individual who has been harmed by the offender. 18 P.S. §

11.103. Just as a government agency is not entitled to restitution because it

is neither an individual victim nor has it compensated an individual victim, an

insurance company is not entitled to restitution if it is not an individual victim

- which it is not - or it has not compensated an individual victim. Stated

plainly, an insurance company is entitled to receive restitution only when it

compensates a victim. Because we have determined that the Township is not

a victim, Selective Insurance Company could not have compensated the

Township as a victim. Thus, Appellant’s restitution to Selective Insurance

Company is also illegal and unenforceable.

The Commonwealth counters Appellant’s claim that his restitution is

illegal by asserting that “the restitution component of [Appellant’s] sentence

was the product of a specific, negotiated term of a plea agreement between

the Commonwealth and [Appellant].” Commonwealth’s Brief at 28. The

Commonwealth emphasizes that in exchange for Appellant agreeing to pay

restitution, which represented the full amount of stolen funds, the

Commonwealth compromised by offering Appellant a significantly lesser

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sentence of incarceration than he would have been exposed to had a jury

convicted him of the charged offenses. Id. at 31. The Commonwealth

maintains that “[a]s a matter of fundamental fairness, specific enforcement of

the terms of the plea bargain in this case is required. . . .” Id. at 32.

We are not persuaded by the Commonwealth’s argument that because

this matter involves a negotiated plea agreement, specific performance of the

plea’s terms should be enforced irrespective of our Supreme Court’s holding

in Veon. Importantly, the Commonwealth’s argument fails to recognize that

Appellant’s restitution claim implicates a legality of sentence issue. While it is

imperative to enforce a contract between two parties, it is also well-settled

law that a contract with an illegal term is void and unenforceable. Fowler v.

Scully, 72 Pa. 456, 467 (1872). “[I]llegality is a traditional, generally

applicable contract defense.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1645 (2018). Even in the civil context, “an agreement that cannot be

performed without violating a statute is illegal and will not be enforced.”

Rittenhouse v. Barclay White Inc., 625 A.2d 1208, 1211 (Pa. Super. 1993)

(citing Dippel v. Brunozzi, 74 A.2d 112 (Pa. 1950)).

Having determined that the restitution component of Appellant’s

sentence is illegal, we must determine the appropriate remedy. Finding this

case analogous to our decision in Commonwealth v. Melendez-Negron,

123 A.3d 1087 (Pa. Super. 2015), we are compelled to vacate Appellant’s

guilty plea in its entirety.

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In Melendez–Negron, the appellant was charged with a variety of

drug-related crimes. Pursuant to a negotiated plea agreement, the appellant

pled guilty to possession with intent to deliver, and on November 15, 2013,

the trial court sentenced him to 5 to 10 years in prison, pursuant to the

mandatory minimum codified at 42 Pa.C.S.A. § 9712.1. Id. at 1089. The

appellant did not file a direct appeal. However, he filed a timely PCRA petition,

and claimed that “his sentence was unconstitutional, and therefore illegal, in

light of [Alleyne9].” Id. He requested that the PCRA court vacate his

sentence and remand the case for re-sentencing; he did not request that the

PCRA court permit him to withdraw his guilty plea. Id. at 1091 n.7.

The PCRA court granted Mr. Melendez–Negron’s PCRA petition, vacated

his sentence, and remanded for re-sentencing. The Commonwealth filed a

notice of appeal and claimed, inter alia, that the PCRA court erred when it

merely vacated the sentence and remanded for re-sentencing. Id. at 1090.

According to the Commonwealth, if the PCRA court was going to grant relief,

it had to vacate Mr. Melendez–Negron’s entire guilty plea, and “return [the

case] to the status quo prior to the entry of the guilty plea.” Id. at 1091. The

Commonwealth argued: “in consideration of agreeing to a five-to-ten-year

period of incarceration, [the Commonwealth] gave up the opportunity to seek

sentences on the drug paraphernalia and small amount of marijuana charges.

By simply allowing resentencing pursuant to the sentencing guidelines, the

____________________________________________

9 Alleyne v. United States, 570 U.S. 99 (2013).

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Commonwealth . . . [lost] the benefit of its bargain.” Id. at 1092 (internal

quotations and citations omitted).

We agreed with the Commonwealth and concluded that—even though

Mr. Melendez–Negron did not request that his guilty plea be vacated—the

PCRA court erred when it failed to vacate the entire plea and restore the case

to its status prior to the entry of the plea. Id. at 1091–1092. We explained:

[B]oth parties to a negotiated plea agreement are entitled to

receive the benefit of their bargain. See Commonwealth v.

Townsend, 693 A.2d 980, 983 (Pa. Super. 1997) (“[W]here the

parties have reached a specific sentencing agreement . . . the

court cannot later modify the terms of the agreement without the

consent of the Commonwealth” because “this would deny the

Commonwealth the full benefit of the agreement which it reached

. . . and the defendant, in turn, would receive a windfall.”);

Commonwealth v. Coles, 530 A.2d 453 (Pa. Super. 1987)

(holding that granting defendant’s motion to modify negotiated

plea sentence stripped Commonwealth of the benefit of its

bargain). . . . Accordingly, we conclude that the shared

misapprehension that the mandatory minimum sentence required

by [42 Pa.C.S.A. § 9712.1] applied to Melendez–Negron tainted

the parties’ negotiations at the outset. . . . [T]he parties’

negotiations began from an erroneous premise and therefore were

fundamentally skewed from the beginning. Thus, while we affirm

the PCRA court’s order vacating Melendez–Negron’s sentence, we

further vacate his guilty plea and remand for further proceedings.

Melendez–Negron, 123 A.3d at 1093–94.

In this case, as with Melendez-Negron, Appellant and the

Commonwealth entered into plea negotiations under “the shared

misapprehension” that the Commonwealth was a victim entitled to restitution

under 18 Pa.C.S.A. § 1106. Id. This misapprehension “tainted the parties’

negotiations at the outset.” Id. Therefore, both Appellant and the

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Commonwealth are entitled to receive the benefit of their bargain, and we

conclude – because “the parties’ negotiations began from [the] erroneous

premise” that the Commonwealth was a victim under Section 1106 – the PCRA

court erred when it failed to grant relief on the issue of restitution. Id.

Accordingly, we vacate Appellant’s entire guilty plea and restore the case to

its status prior to the entry of the plea.

Order affirmed in part and reversed in part. Restitution sentence

vacated. Case remanded for proceedings consistent with this decision.

Jurisdiction relinquished.

Judge Panella joins the opinion.

Judge Lazarus files a concurring and dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2019

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