Com. v. Perzel, J.
Com. v. Perzel, J. No. 1382 MDA 2014
| Pa. Super. Ct. | Apr 5, 2017Background
- John Michael Perzel pled guilty (8/31/11) to multiple counts including criminal conspiracy, restricted activities, and theft; he was sentenced (3/21/12) to 30–60 months incarceration, 60 months probation, $30,000 in fines, and $1,000,000 restitution payable to the Commonwealth.
- Perzel did not file a direct appeal but timely filed a PCRA petition (3/21/13) claiming the restitution order was illegal because the Commonwealth cannot be a "victim" for restitution and that trial counsel was ineffective for not raising the issue.
- The PCRA court denied relief (7/16/14); the Superior Court initially affirmed (May 4, 2015), relying on its prior decision in Veon I that allowed restitution to the Commonwealth.
- The Pennsylvania Supreme Court held Veon I was wrongly decided in Veon II, ruling the Commonwealth cannot be a direct victim reimbursable under 18 Pa.C.S. § 1106; it then granted Perzel review and remanded to the Superior Court for reconsideration in light of Veon II.
- On remand the Superior Court applied Veon II, concluded the restitution order to the Commonwealth was illegal, declined to find counsel ineffective for failing to anticipate Veon II, vacated Perzel’s entire sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of restitution to the Commonwealth | Perzel: restitution to Commonwealth is illegal because the Commonwealth is not a "victim" under § 1106 | Commonwealth: Commonwealth may be a direct victim eligible to receive restitution (per Veon I) | Court: Reversed by Veon II; Commonwealth is not a victim under § 1106; restitution to Commonwealth is illegal; Perzel’s restitution vacated |
| Ineffective assistance for not objecting to restitution at sentencing | Perzel: trial counsel ineffective for failing to challenge restitution | Commonwealth: counsel not ineffective because controlling precedent (Veon I) allowed restitution | Court: Counsel not ineffective—cannot be faulted for failing to predict a change in settled law (Baumhammers) |
| Retroactivity of Veon II | Perzel: Veon II should apply to his case | Commonwealth: implicit argument that prior precedent controlled when counsel acted | Court: Veon II applies retroactively because it resolved a statutory interpretation and did not announce a new rule |
| Scope of remedy (vacatur vs. partial correction) | Perzel: restitution portion should be vacated | Commonwealth: (implicit) adjust only restitution | Court: Vacated entire judgment of sentence and remanded for resentencing to avoid disrupting sentencing scheme |
Key Cases Cited
- Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016) (Commonwealth cannot be a direct victim or reimbursable compensating agency under § 1106)
- Commonwealth v. Veon, 109 A.3d 754 (Pa. Super. 2015) (earlier Superior Court holding that Commonwealth could be a victim for restitution)
- Commonwealth v. Baumhammers, 92 A.3d 708 (Pa. 2014) (counsel not ineffective for failing to foresee a change in the law)
- Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (illegal sentence may be corrected)
- Commonwealth v. Hill, 140 A.3d 713 (Pa. Super. 2016) (vacating an illegal restitution order can require vacating the entire sentence to preserve sentencing scheme)