Com. v. Nachajski, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RICHARD E. NACHAJSKI

Appellant No. 119 MDA 2014

Appeal from the PCRA Order December 17, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000794-2011

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 10, 2014

Appellant, Richard E. Nachajski, appeals from the order entered December 17, 2013, by the Honorable Scott D. Keller, Court of Common Pleas of Berks County, which denied his joint petition under the Post Conviction Relief Act (PCRA) and for modification of restitution. We affirm.

On August 6, 2012, Nachajski entered an open guilty plea to one count of Theft by Failure to Make Required Disposition of Funds Received,1 arising out the misappropriation of parish funds during Nachajski’s tenure as the priest at St. Anthony of Padua Roman Catholic Church in Berks County. At the sentencing hearing on September 27, 2012, the parties represented to

the court that restitution had been agreed to in the amount of $425,000.00. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 PA.CONS.STAT.ANN. § 3927(a).

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See N.T., Sentencing, 09/27/12 at 3. Thereafter, the court sentenced Nachajski to two to seven years’ imprisonment and ordered Nachajski to pay $425,000.00 in restitution. Nachajski did not file post-sentence motions or pursue a direct appeal.

On August 20, 2013, Nachajski filed a Motion Under the Post-Conviction Relief Act and for Modification of Restitution. The lower court held a hearing on Nachajski’s motion on November 4, 2013. On December 17, 2013, the court denied Nachajski’s petition for PCRA relief and for modification of restitution. This timely appeal followed.

Nachajski raises the following issues on appeal:

1) Whether the [l]ower [c]ourt erred in denying [Nachajski] relief under the Post Conviction Relief Act in that [Nachajski] did show that guilty plea counsel did not properly inform [Nachajski] that he could challenge the restitution amount? Specifically[,] [guilty] [p]lea [c]ounsel never informed [Nachajski] that he would have a right to seek a restitution determination from the [c]ourt and that [Nachajski] was not obligated to accept the determination of the District Attorney.

2) Whether the [c]ourt erred in not permitting [Nachajski] to present evidence of the inaccuracies of the restitution determination made by the District Attorney at the time of the hearing in this matter? If [Nachajski] had been permitted to present evidence of same he could have shown that more than half of the restitution claimed was actually spent on legitimate purposes and had not been stolen….

3) Whether the [l]ower [c]ourt erred in not granting [Nachajski] a restitution hearing pursuant to 18 Pa. C.S.A. 1106(c)(3) as a [c]ourt has the ability to modify a restitution amount at any time for good cause shown? Specifically[,] [Nachajski] did show good cause as he was never informed of his right to a restitution hearing and was never given a chance to present evidence of the inaccuracy of the restitution figure.

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Appellant’s Brief at 6.

We review the lower court’s denial of a PCRA petition as follows. “On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court’s findings are supported by the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). “[T]his Court applies a de novo standard of review to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

To determine whether the PCRA court erred in dismissing the claims of ineffective assistance of counsel, we turn to the following principles of law:

In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place … Appellant must

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demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

Moreover, “[w]e presume counsel is effective and place upon Appellant the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 2008). “This Court will grant relief only if Appellant satisfies each of the three prongs necessary to prove counsel ineffective.” Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007). Thus, we may deny any ineffectiveness claim if “the evidence fails to meet a single one of these prongs.” Id. at 321.

“A criminal defendant has the right to effective counsel during a plea process….” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super. 2002). “Claims challenging the effectiveness of plea counsel’s stewardship during a guilty plea are cognizable under 42 [PA.CONS.STAT.ANN.] § 9543(a)(2)(ii).” Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation omitted). In Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super. 2005), the panel explained that we review allegations of counsel’s ineffectiveness in connection with a guilty plea as follows:

The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel, see generally Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999), under which the defendant must show that counsel’s deficient stewardship resulted in a manifest

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injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea. See, e.g., [Commonwealth v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [(1999)] (“Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.”)….

Id. at 105 (quoting Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004)) (brackets in original). “This standard is equivalent to the ‘manifest injustice’ standard applicable to all post-sentence motions to withdraw a guilty plea.” Id. (citation omitted).

In Commonwealth v. Dietrich, 970 A.2d 1131 (Pa. 2009), our Pennsylvania Supreme Court noted that Section 1106(c)(3) of the Crimes Code authorizes a sentencing court to modify restitution orders at any time provided the court states its reasons as a matter of record. Id. at 1135 (emphasis in original) (citing 18 PA.CONS.STAT.ANN. § 1106(c)(3)). The Court further determined that “Section 1106(c)(3)’s broad language indicates a legislative intent that courts have jurisdiction to modify restitution orders at any time without regard to when information should have been present for consideration.” Id. Section 1106(c)(3) of the Crimes Code states that:

The court may, at any time or upon the recommendation of the district attorney that is based on information received from the victim and the probation section of the county or other agent designated by the county commissioners of the county with the approval of the president judge to collect restitution, 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.

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18 PA.CONS.STAT.ANN. § 1106(c)(3). We note that Section 1106(c)(3) does not require a court alter or amend a restitution order, but merely empowers the trial court to do so.

Although section 1106(c)(3) allows the judge to alter restitution, this does not mean that in every case the judge can alter the restitution award at any time for any reason. There must be justifiable reasons for the modification, and other principles of law must be followed. At some point, finality is needed.

Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004).

With our standards in mind, we have examined the certified record, the briefs of the parties, Judge Keller’s memorandum opinion, and the applicable law, and we find that the lower court ably and methodically addressed the issues Nachajski presented on appeal. We agree with the court that Nachajski fails to establish that counsel was ineffective. We additionally note that although Nachajski raises a general challenge to the agreed upon restitution amount, he alludes to no specific reasons – justifiable or otherwise – why modification of the restitution amount to which he previously stipulated is warranted. Accordingly, we affirm on the basis of Judge Keller’s memorandum opinion. See Trial Court Opinion, 3/13/14.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2014

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