Com. v. Perzel, J. , 116 A.3d 670 ( 2015 )

J-A08023-15
2015 PA Super 107COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN MICHAEL PERZEL
Appellant No. 1382 MDA 2014
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.*
OPINION BY WECHT, J.: FILED MAY 04, 2015
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
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*
Retired Senior Judge assigned to the Superior Court.
1
See 65 Pa.C.S.A. § 1103(a); 18 Pa.C.S.A. §§ 903 and 3927(a),
respectively.
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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
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the certified record.” Commonwealth v. Moss, 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 ineffective assistance of
counsel claims is well-settled:
[C]ounsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s
performance was deficient and that such deficiency prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984). This
Court has described the Strickland standard as tripartite by
dividing the performance element into two distinct components.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Accordingly, to prove [plea] counsel ineffective, the petitioner
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by
counsel’s act or omission. Id. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to satisfy any one of
these prongs.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations
formatted). Furthermore, “[i]n accord with these well-established criteria
for review, [an appellant] must set forth and individually discuss
substantively each prong of the [Pierce] test.” Commonwealth v.
Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009).
Here, Perzel argues that the PCRA court erred in denying his
ineffective assistance of counsel claim because he believes that his
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underlying claim, that the Commonwealth cannot be a victim for purposes of
ordering restitution, has arguable merit. Perzel’s Brief at 6. We disagree.2
§ 1106. 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.
18 Pa.C.S.A. § 1106(a).
In the instant case, the PCRA court reviewed the line of cases from
Commonwealth v. Runion, 662 A.2d 617 (Pa. 1995), specifically
Commonwealth v. Brown, 981 A.2d 893 (Pa. 2009), Commonwealth v.
Figueroa, 691 A.2d 487 (Pa. Super. 2007), and Commonwealth v. Boyd,
835 A.2d 812 (Pa. Super. 2003), to illustrate the definition of “victim” for
purposes of imposing restitution under 18 Pa.C.S.A. § 1106, as revised in
1995 and 1998. See PCRA Court Opinion (“P.C.O.”), 7/16/2014, at 5-8.
As explained in Brown, the revisions “broadened the class of those
entities eligible to receive restitution.” Brown, 981 A.2d at 899-900. Thus,
the statute as revised and applied in case law distinguishes between
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2
Perzel’s allegation that the restitution order is illegal is a challenge to
the legality of his sentence. See Commonwealth v. Kinnan, 71 A.3d 983,
986 (Pa. Super. 2013). Although Perzel did not file a direct appeal, we
observe that this did not operate as a waiver of his sentencing claim,
because challenges to the legality of a sentence are never waived. See
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005).
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circumstances in which an entity is seeking restitution for having been
induced to provide compensation as a direct result of the defendant’s
criminal act, and circumstances in which the entity seeks restitution for more
indirect costs. Compare Runion, 662 A.2d at 621 (pre-revision case
inviting legislature to expand the meaning of the term “victim”), and
Figueroa, 691 A.2d at 489 (no restitution to Department of Corrections to
compensate for indirect expenses for medical treatment of victim of attack);
with Brown, 981 A.2d at 902 (restitution to Medicare for payments made
to victim of assault).
The PCRA court aptly observed that this line of cases consistently holds
that the purpose of restitution is to provide rehabilitation and deterrence to
“impress[] upon [a defendant] that his criminal conduct caused the victim’s
loss or personal injury and that it is his responsibility to repair the loss or
injury as far as possible.” P.C.O. at 5 (citing Runion, 662 A.2d at 621); id.
at 8. This rationale again was affirmed in a recent challenge to a sentence
of restitution to be paid to the Commonwealth, in which a panel of this Court
held:
We conclude that the Commonwealth can be a victim under
[Section 1106]. As noted in Brown, the General Assembly
intended to have the restitution statute serve as deterrence for
criminals. It would therefore be contrary to the statute’s
purpose and the General Assembly’s intent—not to mention
common sense—to have a defendant directly steal from the
Commonwealth . . . and not be liable for restitution. Limiting
restitution sentences to instances where the Commonwealth only
reimburses a third party victim would otherwise encourage
criminals to steal from the Commonwealth. As the Court
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expressed in Brown, to hold otherwise would place form over
substance and ignore the realities and purpose of the statute.
Therefore, we must conclude that the Commonwealth is a victim
to which an order of restitution can be paid when the
Commonwealth is the direct victim of a crime.
Commonwealth v. Veon, 2015 Pa. Super. Lexis 36, at *30-31 (Pa. Super.
2015).
In the instant case, it is clear that the Commonwealth was a direct
victim of Perzel’s abuse of public funds and facilities. P.C.O. at 8-9.
Accordingly, the sentencing court did not err in ordering that Perzel pay
restitution to the Commonwealth, which was entitled to compensation as a
victim pursuant to 18 Pa.C.S.A. § 1106. See Veon, 2015 Pa. Super. Lexis
36, at *30-31.
Perzel’s underlying claim lacks merit, and therefore, the record
supports the PCRA court’s conclusion that Perzel’s ineffective assistance of
counsel claim also must fail. Busanet, 54 A.3d at 45. The PCRA court did
not err in dismissing Perzel’s petition without a hearing, and Perzel is not
entitled to relief on either issue presented.
Order affirmed.
Judge Shogan joins the opinion.
Judge Strassburger concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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