Com. v. Fetterolf, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE MICHAEL FETTEROLF :
:
Appellant : No. 349 MDA 2021
Appeal from the Order Entered February 11, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004654-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 3, 2021
Appellant, Shane Michael Fetterolf, appeals from the February 11, 2021
Order entered in the York County Court of Common Pleas denying Appellant’s
Motion to Correct Illegal Sentence and granting the Commonwealth’s Motion
to Dismiss [Appellant’s] Motion for Lack of Jurisdiction. After careful review,
we reverse and remand for further proceedings.
On June 10, 2018, Appellant and David Atland1 were involved in a motor
vehicle accident. On August 28, 2018, the Commonwealth charged Appellant
with eleven offenses arising from his role in the accident.
On December 20, 2018, Appellant entered a negotiated guilty plea to
one count each of Accidents Involving Death or Personal Injury, Driving While
Operating Privileges Suspended or Revoked, and Operating a Vehicle Without
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1 Mr. Atland is also sometimes referred to in the record as David Altland.
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Required Financial Responsibility.2 That same day, the trial court sentenced
Appellant to a 3- to 23-month sentence of incarceration and to pay an
aggregate fine of $800, court costs, and $500 in restitution to the victim for
unreimbursed insurance deductible and $36,078.54 to Nationwide for various
expenses incurred to cover the victim’s insurance claim. The restitution
amount to be paid to Nationwide included $25,000 to settle an uninsured
motorist claim because Appellant did not have insurance at the time of the
accident. Appellant did not file a post-sentence motion or direct appeal from
his judgment of sentence.
Almost two years later, on September 20, 2020, Appellant filed a
counselled Motion to Correct Illegal Sentence. In the motion, Appellant
asserted that the trial court had imposed an illegal sentence by including
$25,000 for the victim’s “pain and suffering” in Appellant’s restitution
sentence.
On October 14, 2020, the Commonwealth filed a Motion to Dismiss
Jurisdictionally Untimely Post Sentence Motion, asserting that the trial court
lacked jurisdiction to consider the merits of Appellant’s claim pursuant to 42
Pa.C.S. § 5505.3 The Commonwealth also noted that Appellant’s illegal
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2 75 Pa.C.S §§ 3742(a), 1543(b)(1) and 1786(f), respectively.
3 Section 5505 provides that: “[e]xcept as otherwise provided or prescribed
by law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed. 42
Pa.C.S. § 5505.
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sentence claim is cognizable under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. § 9541-46, but argued that the trial court likewise lacked jurisdiction
under the PCRA because Appellant’s motion was untimely filed, and Appellant
did not plead and prove the applicability of any exceptions to the PCRA’s one-
year time-bar.
On October 16, 2020, the trial court held a hearing on the motions,
following which it directed the parties to file briefs regarding the jurisdictional
issue and the merits.
On October 30, 2020, Appellant filed a Supplemental Motion for
Modification of Restitution, in which he asserted, inter alia, that the trial court
had jurisdiction over his motion pursuant to 18 Pa.C.S. § 1106.4
Following a second hearing at which the parties presented argument on
the jurisdictional issue and the merits of Appellant’s request to modify
restitution and additional briefing, on February 11, 2021, the trial court denied
Appellant’s motion to modify and granted the Commonwealth’s motion to
dismiss for lack of jurisdiction. The court found that, whether it treated
Appellant’s motion as a post-sentence motion to modify sentence or as a
petition for collateral relief under the PCRA, the motion was untimely and the
court lacked jurisdiction to address the merits of the issue raised by Appellant.
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4 Section 1106 provides, in relevant part, that “[t]he court may, at any time .
. . alter or amend 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.” 18
Pa.C.S. § 1106(c)(3).
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The court did not address Appellant’s argument that the court had jurisdiction
to modify the restitution sentence pursuant to Section 1106.
This appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
Statement and, in lieu of filing a Rule 1925(a) Opinion, the trial court relied
on the reasons set forth in its February 9, 2021 Order and Supporting
Memorandum.
Appellant raises the following issue on appeal:
The trial court erred when it denied Appellant’s request to correct
his illegal sentence. The trial court did not lack jurisdiction to
decide the merits of Appellant’s motion. First, a bona[]fide
restitution amount was entered at the time of sentencing,
permitting either party to seek modification of restitution at any
time thereafter. Second, general damages, including “pain and
suffering,” are not permitted under the restitution statute making
Appellant’s sentence illegal. An illegal sentence may be heard, or
raised sua sponte, by the court at any time. Third, a trial court
has inherent authority to correct a patent error in an order, such
as occurred in this case.
Appellant’s Brief at 4.
Appellant claims that the trial court erred in finding that it lacked
jurisdiction to consider the merits of his Motion to Correct Illegal Sentence, in
which he requested that the court modify the allegedly illegal restitution order
entered at the time of his sentencing. Id. at 13. He argues that Section
1106(c)(3) confers on the trial court jurisdiction to modify restitution orders
at any time after entry of the order. Id. We agree.
“[R]estitution is part of [a] judgment of sentence[.]” Commonwealth
v. Gentry, 101 A.3d 813, 816 (Pa. Super. 2014). Ordinarily, a defendant who
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wishes to seek modification of his sentence must file a post-sentence motion
not later than 10 days after imposition of the sentence. Pa.R.Crim.P.
720(A)(1) (stating that “a written post sentence motion shall be filed no later
than 10 days after imposition of sentence.”). Where a defendant does not file
a post-sentence motion, to preserve his appellate rights he must file a notice
of appeal “within 30 days of the imposition of the judgment of sentence in
open court.” Pa.R.A.P. 903(c)(3); see also Pa.R.Crim.P. 720(A)(3) (stating
that a “[i]f the defendant does not file a timely post-sentence motion, the
defendant’s notice of appeal shall be filed within 30 days of imposition of
sentence[.]”).
However, Section 1106(c)(3) of the restitution statute provides that,
when the court has ordered restitution at the time of sentencing, the court
may modify the restitution order at any time. 18 Pa.C.S. § 1106(c)(3). In
other words, “the [restitution] statute creates an independent cause of action
for a defendant to seek a modification of an existing restitution order.”
Gentry, 101 A.3d at 816 (finding that the trial court had jurisdiction pursuant
to Section 1106(c)(3) to consider a motion to modify a restitution order
entered more than three years earlier). See also Commonwealth v.
Holmes, 155 A.3d 69, 77 (Pa. Super. 2017) (en banc) (Stabile, J., opinion in
support of affirmance) (recognizing that “a motion requesting modification of
restitution is not considered a typical post-sentence motion subject to
timeliness constraints.”).
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Here, Appellant he did not file a timely post-sentence motion within 10
days of his December 20, 2018 judgment of sentence, which included the
order of restitution, and did not file a direct appeal from his judgment of
sentence. Rather, almost two years later, on September 20, 2020, he filed a
motion requesting that the court modify its order of restitution alleging that
the court had illegally ordered him to pay restitution for “pain and suffering.”
Following our review, we conclude that Section 1106(c)(3) clearly
provides the trial court with jurisdiction to review Appellant’s motion.
Accordingly, the trial court erred in denying Appellant’s motion for lack of
jurisdiction. We, thus, reverse the order denying Appellant’s Motion to Correct
Illegal Sentence and granting the Commonwealth’s Motion to Dismiss
[Appellant’s] Motion for Lack of Jurisdiction and remand for further
proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2021
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