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Commonwealth v. Perzel

Superior Court of Pennsylvania

May 4, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN MICHAEL PERZEL, Appellant

Appeal from the PCRA Order of July 16, 2014. In the Court of Common Pleas of Dauphin County. Criminal Division at No.: CP-22-CR-0002589-2010.

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.[*]

 Judge Shogan joins the opinion. Judge Strassburger concurs in the result.

OPINION

Page 671

WECHT, J.

John Michael Perzel appeals from the order of July 16, 2014, dismissing his first, counseled petition pursuant to the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S.A. § § 9541-46. We affirm.

In 2009, Perzel and nine others were charged following allegations of use of public funds, government staff, equipment, and facilities to pay for and to perform campaign activities. On August 31, 2011, Perzel entered a guilty plea to two counts each of restricted activities--conflict of interest, conspiracy--restricted activities--conflict of interest, and theft by failure to make required disposition of funds.[1] On March 21, 2012, Perzel was sentenced to an aggregate term of incarceration of not less than two and a half nor more than five years' incarceration in a state correctional institution, plus $30,000 in fines and $1,000,000 in restitution. Perzel did not file a direct appeal.

On March 21, 2013, Perzel timely filed the underlying pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition. On June 23, 2014, the PCRA court issued a memorandum opinion as notice of its intent to dismiss Perzel's petition without a hearing pursuant to Pa.R.Crim.P. 907, and entered its final order dismissing the petition on July 16, 2014. Perzel timely appealed, and pursuant to the PCRA court's order, filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on September 19, 2014.

Perzel raises two questions for our review:

I. Whether the [c]ourt erred in sentencing [Perzel] to pay restitution to the Commonwealth, since the Commonwealth cannot be a victim for purposes of restitution[?]
II. Whether trial counsel was ineffective for failing to raise this issue at the time of sentencing[?]

Perzel's Brief at 3.

" Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Moss, 2005 PA Super 111, 871 A.2d 853, 855 (Pa. Super. 2005) (citations omitted).

Because Perzel's allegations of ineffective assistance of trial counsel and underlying trial court error are intertwined, we will discuss them together. The governing legal standard of review of ...


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