February 3, 2014
COMMONWEALTH OF PENNSYLVANIA,
JAMES A. COGLEY, Appellant COMMONWEALTH OF PENNSYLVANIA,
JAMES A. COGLEY, Appellant
NON-PRECEDENTI AL DECISION
Appeal from the Judgment of Sentence entered April 16, 2009, in the Court of Common Pleas of Butler County, Criminal Division, at No(s): CP-10-CR-0000964-2008, CP-10-CR-0000909-2008.
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
In these consolidated pro se appeals, James A. Cogley ("Appellant"), challenges the judgment of sentence im posed by the trial court. We affirm.
The pertinent facts and procedural history have been summarized as follows:
The Commonwealth, over a period spanning December 2007 to February 2009, charged Appellant in twelve separate criminal com plaints, with a variety of criminal offenses. The cases were consolidated and made [ the] subject of a comprehensive plea agreement in which the Commonwealth recommended an aggregate sentence of 24 to 84 months' incarceration. On February 11, 2009, Appellant pled guilty to 14 counts in accordance with the plea agreement. With respect to eight of those counts, the plea agreement included a recommendation for restitution as ordered by the court.
On April 16, 2009, the trial court sentenced Appellant in accordance with the plea agreement. At sentencing, issues arose in connection with the amounts of restitution and the proper credit due for time served. At the sentencing hearing, after the Commonwealth's recitation of the terms of the plea agreement, Appellant's counsel stated the following[: ] "I would simply note that there are a number of restitution figures which we think are fairly inaccurate and would request – I will do so by motion – a hearing regarding the restitution." N.T., 4/ 16/ 09, at 7. At the conclusion of the sentencing hearing, the trial court stated the following[: ] "I will put the credit on each sentence as it's appropriate. If you disagree with the credit for time served, you can file that in the same motion and have the restitution hearing. And we will do the credit for time served at the same." Id. at 14. The trial court issued the respective sentencing orders later in the day on April 16, 2009.
Appellant filed handwritten post-sentence motions on April 24, 2009 that were not signed by his counsel of record. The motions pertain only to the sentences at five of the cases that were the subject of Appellant's plea agreement. Appellant's motions included a motion for credit for time served, a motion for modification of restitution, and a motion for modification of sentence. C.R. at 58. On April 27, 2009, pursuant to Pa.R.Crim.P. 576(A)(4), the Clerk of Courts forwarded a copy of Appellant's motions to his counsel of record. The record reflects that Appellant's counsel filed no response or subsequent action of any kind. On May 21, 2009, Appellant filed a pro se motion for "extraordinary relief for exigent circumstances to proceed pro se, " and by reference, renewed his earlier post-sentence motions. C.R. at 59. The record does not reflect that the Clerk of Courts forwarded a copy of this pro se filing to Appellant's attorney of record. On July 10, 2009, Appellant filed a pro se request for an answer to his earlier pro se motions. Appellant included with his motion, a proposed scheduling order upon which the trial court, on July 21, 2009, hand wrote an order denying Appellant's motions as follows[: ] " Denied [ -] untimely filed [ -] PCRA filed." C.R. at 66.
Commonwealth v. Cogley, 4 A.3d 675 (Pa.Super. 2010), unpublished memorandum at 1-4 (footnotes omitted). Appellant filed a pro se appeal to this Court. In an unpublished memorandum filed on June 4, 2010, we quashed Appellant's appeal as Appellant had filed it in an untimely manner. Cogley , supra .
In Appellant's prior direct appeal, we explained the trial court's reference to " PCRA filed" as follows:
[On May 21, 2009, Appellant also] filed a pro se petition for relief under the Post Conviction Relief Act (PCRA), pertaining to 903-08, 909-08, 963-08, 964-08 . Counsel was appointed to represent the Appellant in the PCRA on July 13, 2009. Appellant has since filed a number of pro se requests to withdraw the appointment of counsel. After filing his notice of appeal, Appellant also twice filed pro se motions requesting to withdraw his PCRA petition. As of the date of receipt of the certified record by this Court, no action had been taken on Appellant's PCRA related motions.
Cogley, unpublished memorandum at 4, n.7.
The trial court summarized the subsequent procedural history as follows:
On October 11, 2012, the [ PCRA court] granted [ Appellant's] PCRA request to reinstate post-sentence and direct appeal rights. On October 25, 2012, [ Appellant] filed Amended Post-Sentence Motions Nun [ sic] Pro Tunc. At the November 8, 2012 hearing on the post-sentence motions, [ Appellant] insisted on proceeding pro se, therefore [ the trial court] conducted a colloquy to insure that [ Appellant] understood the consequences of such action. After hearing, the [ trial court] issued orders on November 28, 2012. The [ trial court] considered the evidence presented at the hearing by [ Appellant], which consisted of bank statements, and modified the restitution sentences accordingly. At cases numbered [ 90 3-0 8] and [ 90 9-0 8 ], the [ trial court] granted restitution modification in part and denied it in part. At cases numbered [ 963-08 ] and [ 964-08 ] the motions were denied.
Trial Court Opinion, 4/ 26/ 13, at 1-2. These timely appeals followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
In his appeal docketed at 271 WDA 2013, Appellant appeals from the judgment of sentence imposed at 909-08. The pertinent facts, as taken from Appellant's guilty plea, are as follows:
At 909 of 2008, it's charged by information that on or about the 3rd day of December, 2007, in the City of Butler, Butler County, that [ Appellant] did intentionally obtain or withhold property, namely $8, 600 in U.S. currency belonging to NexTier Bank by creating or reinforcing a false impression, that is, [ Appellant] did deposit check number 432 from an account owned by him at the Butler Armco Credit Union into his [ NexTier] checking account knowing he did not have the funds to cover the check that he had written, in violation of [ §] 3922A[ 1] of the Crimes Code, a felony of the third degree.
N.T., 2/ 11/ 09, at 3-4. As we noted in Appellant's prior appeal, Appellant was sentenced pursuant to the plea agreement, and ordered to pay restitution in the amount of $8, 600.00. Following the evidentiary hearing motion on Appellant's nunc pro tunc post-sentence motion, the trial court modified the restitution amount to $2, 950.97.
In his appeal docketed at 269 WDA 2012, Appellant appeals from the judgment of sentence imposed at 964-08. The pertinent facts, as taken from Appellant's guilty plea, are as follows:
At 960 - - 964 of 2008, it is charged by information that on or about and between the 17th day of March, 2008, and the 10th day of April, 2008, in the City of Butler, that [ Appellant] did intentionally obtain or withhold property, namely $10, 975 belonging to National City Bank by creating or reinforcing a false impression, that is, [ Appellant] did deposit several [ checks] from his Huntington [ sic] Bank account into his National City Bank [ account] knowing that he did not have sufficient funds in the Huntington [ sic] account for the amount purportedly deposited and subsequently withdrawn from the National City account in violation of section 3922 A[ 1] of the Crimes Code, a felony of the third degree.
N.T., 2/ 11/ 09, at 4. As we noted in Appellant's prior appeal, Appellant was sentenced pursuant to the plea agreement, and ordered to pay restitution in the amount of $10, 975.00. Following the evidentiary hearing motion on Appellant's nunc pro tunc post-sentence motion, the trial court did not alter its restitut ion order.
Appellant raises the following issues in his handwritten, consolidated brief:
1. Did the Commonwealth fail to meet its burden of proof for restitution and theft amount and was the Commonwealth's burden improperly placed upon [ Appellant] ?
2. Is [ Appellant's] restitution excessive and/ or illegal and did the trial court abuse its discretion by sentencing [ Appellant] to restitution unsupported by the record?
3. Are [Appellant's] offenses improperly graded resulting in an illegal sentence?
4. Is [ Appellant's] [ guilty] plea invalid/ unlawfully induced and did [ the] trial court err by accepting [ the] plea and sentencing [ Appellant] to undisclosed, undetermined, and a disputed amount of theft and restitution?
5. Were [ Appellant's] counsels all ineffective?
Appellant's Brief at 7 (capitalization removed).
Because Appellant's first four claim s are interrelated, we address them together. I n the instant appeals, Appellant was charged with theft as a third-degree felony. The applicable section of the Crimes Code reads in pertinent part:
§ 3 9 22 . Theft by deception
(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of m ind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise[ .]
18 Pa.C.S.A. § 3922(a)(1). The applicable restitution statute reads in pertinent part:
§ 11 0 6 . Restitution for injuries to person or property
(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.—
(2) At the time of sentencing the court shall specify the amount and method of restitution.
(3) The court may, at any time or upon recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the court with the approval of the president judge to collect restitution, alter or am end any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.
(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim .
18 Pa.C.S.A. § 1106.
The question of whether a sentencing court appropriately ordered restitution is generally considered a challenge to the legality of the sentence. Commonwealth v. Keenan, 853 A.2d 381, 382 (Pa.Super. 2004). "Although it is mandatory under section 1106(c) to award full restitution, it is still necessary that the amount of the 'full restitution' be determined under the adversarial system with considerations of due process." Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa.Super. 2004) (en banc). Moreover, "[ a] lthough section 1106(c)(3) allows the judge to alter restitution, this does not mean that in every case the judge can alter the restitution award at any time for any reason. There must be justifiable reasons for the modification, and other principles of law must be followed."
In Ortiz, the Commonwealth sought to increase the amount of restitution ordered after sentencing even though it could have obtained the additional information prior to sentencing. I n reversing the trial court's order granting the Commonwealth's motion, we stated:
Restitution was part of the negotiated sentence, the term s of which certainly induced the defendant to enter the plea. Once the negotiated plea was entered and sentence imposed pursuant to the terms of the plea set forth on the record, absent changed circumstances, the Commonwealth was bound by its agreement and precluded from seeking to increase restitution later. This is particularly true since the extra restitution amount could have been ascertained prior to sentencing and, in fact, was known by the Commonwealth within thirty days of sentencing while the [ trial] court still had jurisdiction. The Commonwealth had the opportunity under section 1106(c)(4)(ii) to alert the court and the defendant that it had not yet received all information as to restitution and was merely making an estimate. However, the Commonwealth did not avail itself of that opportunity. Ortiz, 854 A.2d at 1284 (footnote omitted).
In both appeals, Appellant pled guilty to one count of theft by deception pursuant to a negotiated plea agreement. As cited above, at each count, the Commonwealth included a specific amount that was taken from the victim. At sentencing, the Commonwealth recommended specific amounts at each case in accordance with the negotiated plea agreement, and the trial court entered a restitution order in that amount. Although Appellant raised an objection to the amounts of restitution ordered at sentencing, the trial court afforded him the opportunity to address these concerns by requesting a restitution hearing. Appellant made no such request until the trial court held a hearing on Appellant's nunc pro tunc post-sentence motions on November 8, 2012.
In his first two claims, Appellant asserts that the trial court impermissibly shifted the burden of proving the correct amount of restitution from the Commonwealth to him during the November 2012 hearing. Additionally, he argues that the restitution amounts ordered were excessive, illegal, and not supported by the record. We disagree.
Like the defendant in Ortiz, supra, Appellant entered into a negotiated plea agreement with the Commonwealth that included specific amounts of restitution to various victim s. "The [ trial] court must also ensure that the record contains a factual basis for the appropriate amount of restitution." Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.Super. 2007) (citation omitted). Our review of the guilty plea hearing provides an adequate factual basis for each amount of restitution in this case. Ortiz, supra .
Here, the trial court at the November 2012 hearing, did not improperly shift any burden of proof to Appellant. Rather, because Appellant asserted that some of the restitution amounts were excessive, he had the burden of proving that the restitution awards exceeded the victim s' losses. See e.g., Commonwealth v. Pappas, 845 A.2d 829, 842 (Pa.Super. 2004) (explaining that amount of restitution cannot be in excess of the damages caused by the defendant). In attempting to do so, Appellant presented no evidence, but rather referred to the bank statements gathered by the Commonwealth in order to determine the inaccuracies. The trial court considered Appellant's arguments and did modify the restitution amount in Appellant's appeal at 271 WDA 2013. Appellant argues no basis to alter the trial court's conclusions. Thus, his first two claim s are meritless.
In his next two claims, Appellant asserts that his two theft convictions were improperly graded as third-degree felonies, and therefore that his guilty plea to these crimes was invalid. A review of the record refutes Appellant's assertions. I n each appeal, Appellant entered into a negotiated guilty plea to two thefts, each graded as a felony of the third degree. I n arguing that they should have been graded as misdemeanors, Appellant asserts that certain amounts that were repaid prior to his being charged were not considered. See Appellant's Brief at 24-27. The trial court rejected Appellant's claim in denying Appellant's post-sentence motions. Although Appellant referenced bank statement exhibits introduced into evidence by the Commonwealth, the trial court was aware of Appellant's argument, and given its denial of Appellant's post-sentence motion, rejected it. This is not surprising, since the majority of the charges filed against Appellant arose because he deposited bad checks at multiple banks. At the post-sentence motion, the Commonwealth informed the trial court that Appellant never identified which checks he was referencing, and the Commonwealth explained that it had "never been presented with anything that would substantiate - - that would even raise a question that monies had been repaid to any of the three - - four financial institutions." N.T., 11/ 8/ 12, at 6. As Appellant provides us with no further evidence to support his claim, we have no basis to disturb the trial court's determination.
Appellant's argument regarding the validity of his guilty pleas relies primarily on the success of his prior arguments about the restitution amounts and the grading of the theft offenses. As we have found no merit to these claims, Appellant's claim that his plea was invalid also fails.
Finally, Appellant raises the claim that all prior counsel who represented him were ineffective. In general, "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Commonwealth v. Holmes, __ A.3d __, 2013 WL 5827027 at 13 (Pa. 2013). Our review of the record indicates no extraordinary circumstances or any other applicable exception that would permit our review on direct appeal of Appellant's ineffectiveness claim. Appellant's ineffectiveness claim is therefore dismissed without prejudice to Appellant to raise it in a PCRA petition, along with any other claims for post-conviction relief, if he so chooses.
Judgments of sentence affirmed.