Commonwealth v. Lamandre

COMMONWEALTH OF PENNSYLVANIA, Appellee v. PETER N. LAMANDRE, Appellant

J-S41006-15

No. 1558 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 26, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence entered July 29, 2014, in the Court of Common Pleas of Lackawanna County, Criminal Division at No(s): CP-35-CR-000-1969-2013

BEFORE: ALLEN, LAZARUS, and PLATT^*, JJ.

MEMORANDUM BY ALLEN, J.:

Peter N. Lamandre ("Appellant") appeals from the judgment of sentence imposed after he pled guilty plea to one count of possessing an instrument of crime, and four counts of theft by unlawful taking.¹ We affirm.

The trial court explained the factual and procedural background of this case as follows:

On May 5, 2014, [Appellant] pled guilty to one count of possession of an instrument of a crime and four counts of theft by unlawful taking in the above captioned case. In exchange, the 27 other charges pending against [Appellant] were nolle prossed. The charges arose when [Appellant] stole funds from several clients who had hired him to manage their rental properties.

On July 29, 2014, a restitution hearing was held. The parties stipulated to the amounts owed to most of the victims. Two of the victims, Brian Gray ["Gray"] and Valerie Altuner ["Altuner"], testified as to the amount stolen from them. Transcript of July 29, 2014 Restitution and Sentencing Hearing. [Gray] testified that he had hired [Appellant] to manage his four rental properties, and he was able to obtain his financial statements from [Appellant's] website, and discovered that he was not receiving rents from [Appellant], nor was [Appellant] paying bills. Id. at 6-9. He testified that he prepared a statement of the amount owed by [Appellant] which totaled $45,472.96 and was attached to his victim impact statement. Id. at 9-11. The statement was marked Court Exhibit No. 1. Id. at 10. [Altuner] testified that she hired [Appellant] to manage 10 properties for her, with 15 units, for approximately 4 or 5 years. Id. at 18-27. She testified that she had her accountant prepare a letter for her, and that she estimated that she was owed $450,000. Id. at 19. The parties stipulated that the amount owed to Brian Murray, as detailed in his victim impact statement, was $25,067.25. Id. at 12-14.

Following the restitution hearing, [Appellant] was sentenced. The court stated that in reviewing the presentence file, the testimony elicited and the charges brought, it is clear that at best his behavior was gross negligence, and at worst it was contemplated, premeditated, repetitive criminal activity. Id. at 42-43. The court stated that it saw no indication of remorse, and no explanation that makes any sense. Id. The court stated that it appeared that this was an ongoing course of conduct designed to reap profits and was nothing short of outright embezzlement. Id. The court noted that at least six different clients of his were treated this way, and while it is the custom of the court to impose sentences within the standard range of the sentencing guidelines, the Sentencing Code mandates that if the court finds repetitive conduct, premeditation, and efforts to obfuscate and camouflage, then the court should sentence within the aggravated range. Id. at 43-44. The court imposed an aggregate sentence of 11 to 23 months, followed by 5 years of probation. Id. at 45. The court also ordered that [Appellant] was not to possess a realtor's license and was not to be involved in any position or employment that would involve the management of others' funds. Id. The court ordered a drug and alcohol and mental health evaluation. Id.

The court then ordered restitution. The court ordered that [Appellant] pay the following amounts: Murray family $25,067.25; Yoeder $3,059.65; [Bill] Milan ["Milan"] $5,148; Altuner $285,000; Salque $12,849; and Gray $45,472.96. Id. at 45-46. The court stated that it considered the testimony given, as well as the amounts that were stipulated to and the facts and figures from which the court was able to extrapolate to arrive at a fair number. Id. at 46. The court stated that it considered [Appellant's] testimony concerning the amount owed, but given that [Appellant] was involved in a consistent, prolonged, intentional, premeditated course of conduct of embezzlement and fraud, the court attributed no credibility to his testimony or the figures he submitted. Id. The court stated that it considered the entire presentence file, the [Appellant's] information and input, the nature and gravity of the offense, and the rehabilitative needs of [Appellant]. Id. at 47.

On August 19, 2014, [Appellant] filed an untimely motion for reconsideration of sentence which was denied that same date. On September 16, 2014, [Appellant] filed a Notice of Appeal, and that same date, this court ordered [Appellant] to file a concise statement of the matters complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). On October 7, 2014, [Appellant] filed a motion for an extension of time, which this court granted. On October 22, 2014, [Appellant] filed a Statement of Matters Complained of on Appeal.

Trial Court Opinion, 11/6/14, at 1-3.

On appeal, Appellant presents two questions:

1. Should the lower court's restitution awards to Altuner and Milan be set aside because they are illegal in light of the fact that [Appellant] never pleaded guilty to anything regarding either of these claimants?

2. Should the lower court's restitution awards to Altuner and Gray be set aside because they are speculative and not supported by the record?

Appellant's Brief at 5.

Before reaching Appellant's issues, we address the timeliness of his appeal. Pennsylvania Rule of Criminal Procedure 720(A)(1), provides in pertinent part that "a written post-sentence motion shall be filed no later than 10 days after imposition of sentence." In Commonwealth v. Bilger, we explained:

With respect to the filing of an appeal, Rule 720 [provides in pertinent part]:

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

(3) If the defendant does not file a post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).

(Emphasis added). As can be readily observed by reading the text of Rule of Criminal Procedure 720, ordinarily, when a post-sentence motion is filed an appellant has thirty (30) days from the denial of the post-sentence motion within which to file a notice of appeal. However, by the explicit terms of Pa.R.Crim.P. 720(A)(2), the provision allowing thirty days from the denial of post-trial motions is contingent upon the timely filing of a post-trial motion. []

***

[] For purposes of triggering the appeal period, [a]ppellant's filing of an untimely post-sentence motion is equivalent to a complete failure to file a post-sentence motion. Thus,[a]ppellant was obligated to file his appeal within thirty days of [the entry of his judgment of sentence]. Since he did not, his appeal must be quashed.

***

Admittedly, a trial court may have authority and discretion to consider the merits of an untimely post-sentence motion. See Commonwealth v. Felmlee, 2002 Pa.Super. 179, n. 3. However, absent the additional step by the trial court of vacating the sentence within the thirty-day period and prior to the taking of an appeal, the court's decision to do so should not affect the running of the appeal period and a potential appellant will still be obligated to file an appeal within thirty days of imposition of sentence. See Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994). To invoke a rule that ties the start of the appeal period to the trial court's subsequent decision to either consider the merits of an untimely filed post-sentence motion, or the trial court's decision to equate an untimely petition as no petition, would add uncertainty to an otherwise certain rule and add confusion where there need be none.

Commonwealth v. Bilger, 803 A.2d 199, 201-202 (Pa. Super. 2002) (internal footnote omitted).

In Commonwealth v. Patterson, we further explained:

After the expiration of the ten-day period, a post-sentence motion cannot toll the appeal period unless the appellant files a motion seeking permission to file a post-sentence motion nunc pro tunc and the trial court expressly grants this request within thirty days of the imposition of the sentence. See Dreves, 839 A.2d at 1128-29 (stating "[t]he trial court's resolution of the merits of a late post-sentence motion is no substitute for an order expressly granting nunc pro tunc relief").

Patterson, 940 A.2d 493, 498 n.3 (Pa. Super. 2007).

Instantly, Appellant's judgment of sentence was entered on July 29, 2014. Appellant's post-trial motion was docketed on August 19, 2014,² and is therefore untimely pursuant to Pa.R.Crim.Proc. 720(A)(1). Appellant never sought nunc pro tunc relief, and the trial court never granted such relief sua sponte. Thus, Appellant was required to file his notice of appeal by on or before August 29, 2014. Appellant's notice of appeal was filed on September 16, 2014. Therefore, Appellant's appeal is untimely.

However, in Patterson, despite finding that appellant's post-sentence motion and subsequent notice of appeal were untimely, we nevertheless declined to quash appellant's appeal because:

Generally, an appellate court cannot extend the time for filing an appeal. Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133, 136 (1995), citing Pa.R.A.P. 105(b); Commonwealth v. Smith, 348 Pa.Super. 10, 501 A.2d 273, 275 (1985) (stating "[a] court may not enlarge the time for filing a

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