Commonwealth v. Heindl

COMMONWEALTH OF PENNSYLVANIA v. SHANNON R. HEINDL Appellant

No. 57 WDA 2021

No. J-A18014-21

Superior Court of Pennsylvania

November 30, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 16, 2020 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000172-2004

BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM

OLSON J.

Appellant Shannon R. Heindl, appeals from a judgment of sentence entered November 16, 2020, after the trial court found her guilty of indirect criminal contempt ("ICC"). We vacate Appellant's contempt conviction, together with her November 16, 2020 judgment of sentence.

The pertinent facts and procedural history of this case are as follows: While employed as a secretary for a probate law firm, Appellant withdrew funds from the estate of Jared Jones, which the firm handled on behalf of its client, Ruth Streich, the administratrix of the estate. N.T. Preliminary Hearing, 7/29/04, at 4-5. Ms. Streich authorized one transaction, a loan in the amount of $80, 000.00. Id. at 6. Another $86, 000.00 was withdrawn without Ms. Streich's knowledge or consent via pre-signed checks payable to Appellant. Id. at 8 10. After Ms. Streich approached her lawyer to discuss the withdrawals, Appellant wrote six separate checks made payable to Ms. Streich to reimburse the estate. Id. at 12, 14. All of Appellant's checks were denied for insufficient funds. Id. On June 3, 2005, Appellant pleaded guilty to bad checks, ^[1] graded as a felony of the third degree. Following Appellant's guilty plea, the trial court twice attempted to schedule a restitution hearing before entering the following order:

AND NOW, this 28^th day of September, 2005, upon stipulation of [Appellant], who is represented by Benjamin J. Vrobel[, Esquire], and the Commonwealth, IT IS ORDERED that restitution shall be in the amount of $166, 000.[00.]

Trial Court Order, 9/29/05 (emphasis added). The order further directed the Elk County Probation Department to prepare a presentence investigation ("PSI") report. Id. On January 9, 2006, the trial court sentenced Appellant, inter alia, to the following:

1. [Appellant] shall be placed on probation for a period of seven years under the supervision of the Elk County Probation Department.

* * *

3. [Appellant] shall pay restitution in the amount of $166, 000[.00] to Ruth Streich, [A]dministratrix of the Estate of Jared Jones.

Trial Court Order, 1/11/06. Appellant filed neither a post-sentence motion nor a notice of appeal challenging her January 9, 2006 judgment of sentence.

In the ensuing years, Appellant made several monthly payments toward restitution. Appellant's last restitution payment occurred on April 18, 2016, see Trial Court Opinion, 3/29/21, at 1, after which the Commonwealth filed a delinquency notice with the trial court on June 8, 2016. See Trial Court Docket Entry, 6/8/16.

On April 3, 2018, the Commonwealth filed a petition for contempt alleging that [Appellant's] outstanding restitution balance as of April 3, 2018, was $141, 612.50, and that [Appellant's] last payment occurred on April 18, 2016. A hearing was initially held on September 17, 2018, and an [o]rder entered [ ] on September 17, 2018. [Appellant] appealed [the September 17, 2018 o]rder and on November 5, 2019, the appeal was quashed on the basis that [the September 17, 2018 o]rder was not a final order. Following the first appeal, a hearing was held on November 16, 2020, and an [o]rder entered finding [Appellant] in indirect criminal contempt of the [trial c]ourt's [January 9, 2006 sentencing] order and sentencing [Appellant] to a [90]-day period of incarceration with the ability to purge herself of the contempt.

Trial Court Opinion, 3/29/21, at 1. This appeal followed.^[2]

Preliminarily, we must determine the timeliness of Appellant's appeal, as it implicates our jurisdiction. See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) ("Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal"). "A direct appeal in a criminal proceeding lies from the judgment of sentence." Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007) (citation omitted). Absent filing a timely post-sentence motion, an appellant must file his or her appeal "within 30 days of the imposition of the judgment of sentence in open court." Pa.R.A.P. 903(c)(3) (emphasis added); see also Pa.R.Crim.P. 720(A)(3) ("If 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.") (emphasis added). Where an appellant foregoes the filing of a timely post-sentence motion, "the appeal period begins to run from the date sentence is imposed." Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (citation and quotation omitted). Here, the trial court imposed Appellant's judgment of sentence in open court on November 16, 2020 and Appellant elected not to file a post-sentence motion. See N.T. Contempt Hearing, 11/16/20, at 40-41. Consequently, Appellant needed to file her notice of appeal within 30 days of November 16, 2020, i.e., on or before December 16, 2020. Pa.R.A.P. 903(c)(3); Pa.R.Crim.P. 720(A)(3). Appellant's notice of appeal filed on January 7, 2021, therefore, is patently untimely.

Notwithstanding the untimely nature of Appellant's notice of appeal, "we must determine whether an administrative breakdown in the court system excuses the untimely filing of the notice of appeal." Patterson, 940 A.2d at 498. Our caselaw and procedural rules mandate that trial courts confirm, on the record at the time of sentencing, that the defendant has been advised of, inter alia, the nature and timing requirements of his or her post-sentence and appellate rights. See Pa.R.Crim.P. 704(C)(3)(a). The failure to so advise a defendant on the record at the time of sentencing constitutes a breakdown in the court system which excuses the untimely filing of a notice of appeal. Patterson, 940 A.2d at 498.

A review of the certified record reveals that neither the trial court nor defense counsel, at the time of sentencing, advised Appellant of her right to file a post-sentence motion, a notice of appeal, or the timeframe within which to take such action. See N.T. Contempt Hearing, 11/16/20, at 40-41. This failure to advise Appellant of her appellate rights constitutes a breakdown in the operation of the court; as such, we will not quash the instant appeal as untimely. Commonwealth v. Wenzel, 248 A.3d 540, 547 (Pa. Super. 2021).

Within her brief, Appellant raises the following claims:

1. Did the trial court err and/or violate the Appellant's due process rights by failing or refusing to hold a hearing regarding the legality of restitution; and whether or not the restitution awardee is a "direct victim" as contemplated by 18 [P.S.] § 11.103; and further setting a legally inappropriate award; and because of these fundamental errors should the restitution be stricken?

2. Did the trial court act illegally and fail to follow its duties, by failing to have a restitution hearing in excess of 16 years, and further failing to collect for restitution or revoke [Appellant's] probation during the ten years she was on probation, and further failing twice to have a full hearing; and finally after years of delay the [trial] court failed to follow the law with regard to setting and collecting restitution, specifically to 18 Pa.C.[S.]A. § 1106(f) and because of these errors should the court be barred from collections for the improprieties as well as by latches?

3. Did the [trial] court violate its duty to be a determiner of restitution and the amount to be paid by the Appellant by setting the full amount of restitution due and owing then finding the Appellant in contempt and sentencing her to 90 days in jail, and turning issues of ability to pay, a payment plan and evaluation of medical documentation over to the adult probation office?

Appellant's Brief at 4-5 (extraneous capitalization omitted).

On appeal, Appellant challenges a judgment of sentence imposed after she was found in ICC.^[3] We review ICC determinations for an abuse of discretion. In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 2004). An abuse of discretion is not merely an error of judgment, but is rather "the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Griffiths, 15 A.3d 73, 76 (Pa. Super. 2010). A well-settled principle of criminal contempt jurisprudence holds that an individual cannot be held in contempt for violating an order that the trial court lacked authority to issue. See Commonwealth v. Null, 186 A.3d 424, 429 (Pa. Super. 2018) ("[W]here a court enters an order without authority or legal right to make such an order, it is powerless to attempt its enforcement. … The disregarding of an order in excess of the court's authority does not give rise to contemptuous conduct by the parties involved.") (quotation and citation omitted). Because Appellant cannot be held in contempt for violating an order that the sentencing court was not authorized to impose, we consider whether the sentencing court possessed authority to order restitution as it did in this case.

The trial court imposed restitution, not as a condition of probation, but rather as a separate sentence under 18 Pa.C.S.A. § 1106. The version of § 1106 that was in effect when Appellant was originally sentenced provided, in relevant part:

(c) Mandatory restitution. -

(1) The court shall order full restitution:

(i) … so as to provide the victim with the

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