Commonwealth v. Baney, 187 A.3d 1020 (2018)

May 18, 2018 · Superior Court of Pennsylvania · No. 1530 MDA 2017
187 A.3d 1020

COMMONWEALTH of Pennsylvania, Appellee
v.
Jeremy Michael BANEY, Appellant

No. 1530 MDA 2017

Superior Court of Pennsylvania.

Submitted March 12, 2018
Filed May 18, 2018

Charles R. Rosamilia, III, Lock Haven, for appellant.

Christopher J. Schmidt, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., MURRAY, J., and PLATT* , J.

OPINION BY PLATT, J.:

Appellant, Jeremy Michael Baney, appeals from the trial court's order denying his motion for resentencing after it vacated his sentence of restitution. We affirm.

We take the following pertinent factual and procedural background from the trial court's September 7, 2017 opinion and our independent review of the certified record. On May 19, 2003,1 Appellant entered a *1022negotiated guilty plea to twenty-one counts of possession with intent to deliver (PWID), five counts of dealing in proceeds of unlawful activity, and one count each of criminal conspiracy and criminal use of a communication facility.2 The charges arose from Appellant's involvement in a multiple county drug ring in central Pennsylvania, from 1997 to 2001. On August 11, 2003, pursuant to the agreement, the trial court sentenced Appellant to an aggregate term of incarceration of not less than twenty nor more than thirty-nine years,3 plus $50,000.00 in fines, and an aggregate restitution amount of $12,621.93, payable to the Pennsylvania Office of the Attorney General (OAG) and the Pennsylvania State Police (PSP). This Court affirmed Appellant's judgment of sentence on September 3, 2004, and the Pennsylvania Supreme Court denied permission for further review on June 7, 2005.4 (See Commonwealth v. Baney , 860 A.2d 127 (Pa. Super. 2004), appeal denied , 583 Pa. 678, 877 A.2d 459 (2005) ).

Appellant filed a petition to modify restitution on March 3, 2017. (See Petition to Modify Restitution, 3/03/17). On June 9, 2017, after holding a conference with counsel, allowing the parties to brief the issue, and with the Commonwealth's agreement, the court vacated the restitution payable to the OAG and PSP.5 On June 23, 2017, Appellant filed a pro se motion for modification of sentence,6 in which he sought resentencing on all counts of the complaint. (See Motion to Modify Prison Sentence, 6/23/17, at unnumbered page 2 ¶ 10). The court denied the motion on September 7, 2017, after a hearing.7 Appellant filed a motion for reconsideration that the court *1023denied, and Appellant timely appealed.8

Appellant raises one question for our review: "Whether the [trial] court committed an error of law and/or abuse of discretion in failing to re-sentence the Appellant after modifying the restitution aspect of [his] sentence?" (Appellant's Brief, at 6) (unnecessary capitalization omitted). Appellant's issue lacks merit.

"In the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence." Commonwealth v. Stradley , 50 A.3d 769, 771 (Pa. Super. 2012) (citation and internal quotation marks omitted).

Pursuant to section 1106(c)(3) of the Crimes Code :

The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim ... alter or amend any order of restitution ... provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.

18 Pa.C.S.A. § 1106(c)(3) (emphasis added).

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi , 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied , 626 Pa. 681, 95 A.3d 275 (2014) (citation omitted).

Here, Appellant maintains that, because it vacated his restitution, the court was required to "resentence [him] on all counts to which he entered guilty pleas[.]" (Appellant's Brief, at 9; see id. at 9-12). We disagree.

It is well-settled that:

[I]f a trial court errs in its sentence on one count in a multi-count case, then all sentences for all counts will be vacated so that the court can restructure its entire sentencing scheme. This has been held true even where Appellant specifically limits his appeal to one particular illegal sentence based upon one bill of information and does not appeal sentences based upon other bills of information, where those sentences are part of a common sentencing scheme.

Commonwealth v. Bartrug , 732 A.2d 1287, 1289 (Pa. Super. 1999), appeal denied , 561 Pa. 651, 747 A.2d 896 (1999) (citations omitted) (holding that, under circumstances, PCRA court did not abuse its discretion in vacating entire sentence before resentencing, rather than addressing only illegal part of sentence); see also Veon , supra at 456 (remanding for resentencing where vacating sentence of imprisonment and restitution left the "comprehensive sentencing scheme unmoored from its foundation.").

Here, as observed by the trial court:

This court must conclude that the restitution in and of itself was not a major consideration of the sentencing judge ..., that the vacation of the restitution portion of the sentencing order did not *1024unmoor the foundation of the comprehensive sentencing scheme ..., and finally that it was not a critical part of the sentencing scheme ....

(Trial Court Opinion, 9/07/17, at 6) (unnecessary capitalization omitted).

We agree with the trial court. It is uncontested that, with the Commonwealth's agreement, the trial court vacated Appellant's restitution based on Appellant's motion contesting the legality of the restitution order. (See id. at 3; Appellant's Brief, at 7, 9; Commonwealth's Brief, at 5). The court did not disturb the overall sentencing scheme of not less than twenty nor more than thirty-nine years' imprisonment by vacating restitution. Therefore, the court was not required to resentence Appellant on all counts, and it did not abuse its discretion in denying Appellant's motion requesting that it do so. See Antidormi , supra at 760 ; see also Veon , supra at 455 ; Bartrug , supra at 1289.9 Appellant's issue does not merit relief.

Additionally, in the interest of a full analysis, we observe the following. It appears to this Court that the issue presented by this case would not have arisen if the trial court and counsel employed the precise use of the words, "restitution" and "costs of prosecution."

It is well-established that the Commonwealth is not a victim entitled to restitution. However, what the Commonwealth is statutorily authorized to receive are costs of prosecution. See 18 Pa.C.S.A. § 9728(g) ("Any ... costs associated with the prosecution[ ] shall be borne by the defendant[.]"); 16 P.S.A. § 7708 ("[T]he expenses of the district attorney, in connection with [the] prosecution, shall be considered a part of the costs of the case[ ] and be paid by the defendant."). These costs include, but are not limited to, the costs of convening an investigating grand jury, expert witness fees, clerk costs, "buy money," and other expert witness costs to investigate these crimes. See Commonwealth v. Garzone , 993 A.2d 1245, 1258-59 (Pa. Super. 2010), affirmed , 613 Pa. 481, 34 A.3d 67 (2012).

Instantly, it appears from review of the case file that the trial court did not actually intend that Appellant pay true restitution, as defined by the Crimes Code, to the Commonwealth. Instead, what was intended was that Appellant pay the costs of prosecution incurred by the OAG and PSP in investigating and prosecuting his case.10 However, imprecisely using the word, "restitution," resulted in these costs being vacated. We caution courts and counsel in such cases of the necessity of the accurate use of the terms, "restitution" and "costs of prosecution" at sentencing when attempting to recover "buy money," grand *1025jury costs, costs of investigations, or witness fees.

Order affirmed.