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Commonwealth v. Baney

Superior Court of Pennsylvania

May 18, 2018

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JEREMY MICHAEL BANEY Appellant

         Appeal from the Order Entered September 7, 2017 in the Court of Common Pleas of Clinton County Criminal Division at No. CP-18-CR-0000109-2002

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

          OPINION

          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 negotiated 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, 877 A.2d 459 (Pa. 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 denied, 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, 95 A.3d 275 (Pa. 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[.]" ...


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