J-A12012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL KARL SUNDAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1355 WDA 2019

Appeal from the Order Entered August 8, 2019

In the Court of Common Pleas of Jefferson County Criminal Division at 

No(s): CP-33-CR-0000093-2009

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 1, 2020

Appellant, Michael Karl Sunday, appeals from the August 8, 2019 order 

denying his petition to modify the restitution order that had been imposed at 

sentencing. Additionally, Appellant’s counsel, George N. Daghir, Esquire, 

seeks to withdraw from representation of Appellant pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). We affirm and grant counsel’s application to withdraw.

On June 3, 2009, Appellant entered a guilty plea pursuant to a 

negotiated plea agreement to two counts of theft by unlawful taking1related 

to thefts of a lawn mower, posthole digger, and pallet forks from a farm and 

garden store in Brookville, Jefferson County. The total value of the equipment 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3921(a).
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that Appellant stole was estimated to be approximately $8,900. Criminal 

Complaint, 2/11/08; Information, 4/3/09; N.T., 6/3/09, at 4-5. 

The trial court sentenced Appellant at count one to a minimum of time 

served to a maximum of two years less one day of imprisonment followed by 

three years and one day of probation. Sentencing Order, 6/5/09; N.T., 

6/3/09, at 6. In addition, the trial court ordered restitution to four victims 

totaling $18,617.15 with the total restitution paid out of already seized funds

with the balance paid by Appellant on the date of the sentencing hearing. 

Sentencing Order, 6/5/09; N.T., 6/3/09, at 5-7. At sentencing, the trial court 

stated that the restitution order was “part of your condition of probation as a 

rehabilitative measure.” N.T., 6/3/09, at 7. As part of the plea agreement, 

the Commonwealth agreed to not seek a fine in light of the amount of 

restitution that Appellant agreed to pay. Plea Agreement, 6/5/09.2 At count

two, the court sentenced Appellant to five years of probation to run 

concurrently to the sentence at the first count. Probation Order, 6/5/09; N.T., 

6/3/09, at 7. 

Appellant was subsequently charged with and convicted of a driving 

under the influence (“DUI”) offense. Following a Gagnon II3 hearing, the 

trial court entered an order on January 5, 2012 resentencing Appellant at 

count one to nine months to seven years of imprisonment and at count two to 

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2 The trial court in fact ordered Appellant to pay a fine of $1 at each count. 

Sentencing Order, 6/5/09; Probation Order, 6/5/09.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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two years of probation to run consecutively to the sentence at count one. The 

trial court also directed that the restitution order set forth in the original 

sentence shall remain the same. Appellant appealed, and this Court affirmed 

the judgment of sentence. Commonwealth v. Sunday, No. 266 WDA 2012 

(Pa. Super. filed June 19, 2013).

While on parole, Appellant was charged and convicted of a second DUI 

offense. On May 2, 2017, after a Gagnon II hearing, the trial court revoked 

Appellant’s probation and sentenced him to a term of one and a half to three 

years of imprisonment at count one. The court did not disturb the restitution 

order. On June 29, 2017, Appellant filed a motion for leave to appeal the 

revocation of probation order, which the trial court denied. 

On December 15, 2017, Appellant filed a pro se “Petition for Return of 

Restitution.” The trial court denied the petition on December 18, 2017. 

Appellant sought reconsideration of the order, which the trial court denied. 

Appellant then filed a motion to proceed in forma pauperis and to have an 

attorney appointed for him; the trial court denied this motion on January 10, 

2018. As a result of the denial of Appellant’s motion to proceed in forma 

pauperis and Appellant’s failure to pay the filing fee associated with the notice 

of appeal, Appellant did not perfect an appeal of the trial court’s December 

18, 2017 order.4

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4 On February 8, 2018, Appellant filed an “Application for Leave to File Original 

Process” in this Court, docketed at 17 WDM 2018, in which he sought to 
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On April 4, 2019, Appellant filed a pro se “Petition for a Modification of 

the Restitution Order”; the lower court initially treated the filing as a petition 

under Post Conviction Relief Act (“PCRA”)5 and appointed Attorney Daghir to 

represent Appellant. Upon motion by counsel, the court entered an order 

treating Appellant’s petition as a petition for modification of a restitution order 

under Section 1106(c)(3) of the Crimes Code6rather than as a PCRA petition.7

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compel the trial court to transmit his notice of appeal of the December 18, 

2017 order to this Court. This Court directed Appellant’s motion to compel to 

the trial court. On May 29, 2018, the trial court entered an order denying the 

motion, explaining that Appellant’s “Notice of Appeal was never filed as [he] 

did not send the filing fee and was denied in forma pauperis status. As such, 

the Notice no longer exists and therefore the Clerk of Courts cannot be 

compelled to forward it.” Order, 5/29/18. 

5 42 Pa.C.S. §§ 9541-9546.

6 This statute provides as follows:

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.

18 Pa.C.S. § 1106(c)(3). A petition for modification or amendment of a 

restitution order may be filed “at any time” unlike a PCRA petition which is 

subject to a one-year time bar. Id.; Commonwealth v. Gentry, 101 A.3d 

813, 816 (Pa. Super. 2014); compare 42 Pa.C.S. § 9545(b) (PCRA petition 

must be filed within one year of date of judgment becomes final, subject to 

limited statutory exceptions).

7 We note that it is unclear whether Appellant was entitled to the appointment 

of counsel in this matter. A constitutional right to counsel attaches at all 

“critical stages” of a criminal proceeding; “[a] ‘critical stage’ is one in which 

the accused’s substantive rights may be affected.” Commonwealth v. 
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On May 24, 2019, Appellant filed a motion for an evidentiary hearing 

regarding his request to modify the restitution order. After holding a short 

hearing, the trial court entered an order on August 8, 2019 denying Appellant’s 

request for a hearing to challenge the restitution order. Appellant filed a 

timely appeal of this order.8

Before this Court can consider the merits of this appeal, we must first 

determine whether Attorney Daghir has satisfied the requirements for 

withdrawal. Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa. Super. 

2018) (en banc). To withdraw, counsel must (1) petition the court for leave 

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Zrncic, 131 A.3d 1008, 1011 (Pa. Super. 2016) (citation omitted). 

Sentencing is a critical stage in a criminal proceeding, Commonwealth v. 

Fill, 202 A.3d 133, 138 (Pa. Super. 2019), and this Court has held that the 

right to counsel attaches to a sentencing hearing limited to the issue of 

restitution. Zrncic, 131 A.3d at 1011-12. However, in so holding, we 

distinguished this case from proceedings where a motion is made to modify 

an already imposed order of restitution pursuant to Section 1106 of the Crimes 

Code. See id. at 1012 (“The [resentencing hearing limited to the issue of 

restitution] was not simply a ‘hearing’, as termed by the trial court, nor was

it a 18 Pa.C.S. § 1106 hearing regarding already-imposed restitution.”). In 

light of our resolution of this case, we need not resolve the issue of whether 

Appellant had a constitutional right to counsel for his petition to modify his 

restitution order. 

8 As Appellant recognized in his notice of appeal, the trial court characterized 

its August 8, 2019 order as denying the motion for a hearing on the request 

for a modification of restitution rather than the underlying motion for 

modification. Notice of Appeal, 9/4/2019. However, the trial court made clear 

at the hearing that it was in fact denying Appellant’s request to modify the 

amount of restitution set in his original sentence. N.T., 8/8/19, at 5-7. 

On September 9, 2019, the trial court entered an order directing Appellant to 

file a concise statement of errors complained of appeal pursuant to Pa.R.A.P. 

1925. On September 13, 2019, Attorney Daghir filed statement of his intent 

to file an Anders/Santiago brief. See Pa.R.A.P. 1925(c)(4).
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to withdraw stating that she has made a conscientious examination of the 

record and has determined that the appeal would be frivolous; (2) provide a 

copy of the Anders brief to the appellant; and (3) advise the appellant of his 

right to retain new counsel or proceed pro se and to raise any additional points 

that he deems worthy of the court’s attention. Id. at 1195-96. 

In the Anders brief, counsel must:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous; and (4) state 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel has 

satisfied the above requirements, it is then this Court’s duty to conduct its 

own review of proceedings before the trial court and render an independent 

judgment as to whether the appeal is wholly frivolous. Yorgey, 188 A.3d at 

1196.

In this case, Attorney Daghir filed an application to withdraw, wherein 

he asserts that he has made a conscientious review of the record and 

determined that Appellant’s appeal from the trial court’s August 8, 2019 order

would be frivolous. Application to Withdraw, 12/5/19. Counsel appended to 

the application a copy of a December 4, 2019 letter in which he provided 

Appellant with a copy of his Anders brief and advised him of his right either 

to retain new counsel or to proceed pro se on appeal and raise any points he 
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deems worthy of this Court’s attention; Appellant filed a pro se response to 

the Anders brief in this Court.

9

 Id., Exhibit A. In the Anders brief, Attorney 

Daghir summarized the procedural and factual background of this case, stated 

that there were no non-frivolous appellate issues, and explained the reasons 

for this determination. We therefore conclude that Attorney Daghir has 

complied with the requirements of Anders and Santiago and proceed to a 

review of the merits of this appeal. 

In this matter, Appellant first filed a “Petition for Return of Restitution” 

pursuant to Section 1106(c)(3) of the Crimes Code on December 15, 2017. 

In that petition, Appellant averred that the Commonwealth failed to prove that 

he owed restitution of $18,617.15 when he had only pleaded guilty to taking

three pieces of equipment valued at $8,900. The trial court entered an order 

on December 18, 2017 denying this petition, but Appellant did not perfect an 

appeal of the order. On April 4, 2019, Appellant filed the instant “Petition for 

a Modification of the Restitution Order,” also pursuant to Section 1106(c)(3) 

and asserting the same rationale for modification of the restitution order as 

raised in the earlier petition.

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9 Attorney Daghir subsequently filed an amended application to withdraw in 

which he corrected a clerical error in the original application and addressed 

issues raised by Appellant in a pro se application to this Court seeking copies 

of documents from the trial court record; Counsel appended to the amended 

application a copy of a February 4, 2020 letter demonstrating that he served

a copy of the amended application to withdraw on Appellant. Amended 

Application to Withdraw, 2/7/20. 
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In light of the fact that Appellant previously raised the identical issue in 

his 2017 petition, we are constrained to conclude that Appellant is collaterally 

estopped from seeking modification of the restitution order in the instant 2019 

petition.

10

 The doctrine of collateral estoppel, also referred to as issue 

preclusion, prevents the relitigation of issues raised in previous actions even 

where the issue is raised in a different cause of action than originally brought. 

Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995). Collateral

estoppel applies if (1) the issue decided in the prior case is identical to one

presented in the later case; (2) there was a final judgment on the merits; (3)

the party against whom the plea is asserted was a party or in privity with a

party in the prior case; (4) the party or person privy to the party against whom

the doctrine is asserted had a full and fair opportunity to litigate the issue in

the prior proceeding and (5) the determination in the prior proceeding was

essential to the judgment. Weissberger v. Myers, 90 A.3d 730, 733 (Pa. 

Super. 2014).

Pursuant to Section 1106(c)(3), a defendant as to whom restitution was 

required at sentencing may “at any time” file a petition in the trial court to 

modify or amend the restitution order. 18 Pa.C.S. § 1106(c)(3); 

Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super. 2014). “Our case 

law in this Commonwealth establishes that [this] statute creates an 

independent cause of action for a defendant to seek a modification of an 

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10 The Commonwealth raised a collateral estoppel defense to Appellant’s 

petition at the August 8, 2019 hearing. N.T., 8/8/19, at 4. 
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existing restitution order.” Gentry, 101 A.3d at 816. Here, when the trial 

court denied Appellant’s “Petition for Return of Restitution” on December 18, 

2017, this was a final appealable order. Id. (citing Pa.R.A.P. 341(b)(1) and 

holding that an order that denied all issues raised in a petition to modify or 

amend a restitution order was a final appealable order). Appellant, however, 

did not perfect an appeal from this trial court order, and the trial court’s 

resolution of Appellant’s petition thus became final. Gardner v. 

Consolidated Rail Corp., 100 A.3d 280, 282-83 (Pa. Super. 2014) (failure 

to file a timely appeal from a final order results in that order having preclusive 

effect in future litigation). Instead, Appellant filed the instant “Petition for a 

Modification of the Restitution Order” approximately one and a half years later, 

asserting the same arguments previously raised and rejected by the trial 

court. Because Appellant had a full and fair opportunity to litigate his claim 

for a modification of the restitution order in his 2017 petition resulting in a 

final judgment on the merits against him, he was estopped from filing a later 

petition to modify on the same grounds as previously raised. 

Accordingly, upon our independent review of the record, we are 

persuaded that Appellant has no issues of arguable merit that he could pursue 

on appeal. We therefore affirm the trial court’s August 8, 2019 order and 

grant counsel’s application to withdraw. 

Order affirmed. Application to withdraw granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2020