J-S79026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALDEN LEANIER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 571 EDA 2017

Appeal from the PCRA Order January 30, 2017

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

No(s): CP-51-CR-0012100-2011

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 24, 2018

Alden Leanier appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition filed under the Post 

conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, without a hearing. We 

affirm.

On May 1, 2011, Leanier assaulted his then-girlfriend, Deborah Taylor, 

in the bedroom of her house. Leanier restrained and repeatedly hit Taylor. 

The next day, Taylor changed the locks on the doors of her house. A few days 

later, while Taylor was at work, Leanier broke into her house, stopped up the 

bathtub drain, turned on the water and left. When Taylor returned, her house 

was flooded. The cost of repair was $119,226.00. 
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Leanier entered a negotiated plea of nolo contendere to criminal 

mischief, unlawful restraint and simple assault.

1

 The court sentenced Leanier 

to 9 to 23 months’ incarceration, followed by five years’ probation. The court 

also awarded restitution in the amount of $119,226.00 ($2,500.00 to the 

victim and $116,726.00 to the victim’s insurance company). 

Leanier did not file post-sentence motions. He filed a timely pro se

notice of appeal on July 5, 2012. The court appointed counsel, who filed a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, stating there 

were no non-frivolous issues preserved for appeal. The trial court filed a Rule 

1925(a) opinion, and counsel filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), seeking to withdraw. This Court affirmed Leanier’s judgment of 

sentence and granted counsel leave to withdraw. Commonwealth v. 

Leanier, 1953 EDA 2012 (unpublished memorandum, filed July 26, 2013).

On July 24, 2014, Leanier filed a PCRA petition. The PCRA court 

appointed counsel. Counsel filed an amended petition on October 23, 2015, 

claiming trial counsel was ineffective for failing to file a post-sentence motion 

challenging the restitution award. The Commonwealth filed a motion to 

dismiss the petition and, on December 2, 2016, the court issued notice of 

intent to dismiss pursuant to Pa.R.Crim. 907. On January 30, 2017, the PCRA 

court denied the petition and Leanier filed a notice of appeal. The trial court 

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118 Pa.C.S.A. §§ 3304, 2902, and 2701. 
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filed an order directing Leanier to file a Rule 1925(b) statement. Leanier filed 

his Rule 1925(b) statement on March 17, 2017. 

On appeal, Leanier raises one issue: did the PCRA court err in denying 

him an evidentiary hearing when he raised a material issue of fact that trial 

counsel was ineffective in failing to file post-sentence motions requesting 

reconsideration of the restitution award of $116,726.00? 

Pennsylvania Rule of Criminal Procedure 907 provides that

[i]f the judge is satisfied . . . that there are no genuine issues 

concerning any material fact and that the defendant is not entitled 

to post-conviction collateral relief, and no purpose would be 

served by any further proceedings, the judge shall give notice to 

the parties of the intention to dismiss the petition and shall state 

in the notice the reasons for the dismissal.

Pa.R.Crim.P. 907(1). “[T]he PCRA court can decline to hold a hearing if there 

is no genuine issue concerning any material fact and the petitioner is not 

entitled to post-conviction collateral relief, and no purpose would be served 

by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035, 

1040 (Pa. Super. 2007). See also Commonwealth v. Morrison, 878 A.2d 

102, 109 (Pa. Super. 2005) (“A PCRA hearing is not a matter of right, and the 

PCRA court may decline to hold a hearing if there is no genuine issue 

concerning any material fact and the defendant is not entitled to relief as a 

matter of law.”); Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super. 

2002) (“The right to an evidentiary hearing on a post-conviction petition is not 

absolute. A PCRA court may decline to hold a hearing if the petitioner’s claim 

is patently frivolous and is without a trace of support in either the record or 
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from other evidence.”). A PCRA court’s decision to deny a request for an 

evidentiary hearing will not be overturned absent an abuse of discretion. 

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

Leanier claims counsel was ineffective for failing to file a post-sentence 

motion challenging the restitution award. As this Court noted on direct appeal, 

any claim that restitution is excessive is a challenge to discretionary aspects 

of sentencing[.]” Commonwealth v. Leanier, supra at *8, n.5. See

Commonwealth v. Oree, 911 A.2d 169, 173 (Pa. Super. 2006) (when court’s 

authority to impose restitution is challenged, it concerns legality of sentence; 

when challenge is based on excessiveness, it concerns discretionary aspects 

of sentence). Here, Leanier entered a negotiated plea, which limits his claims 

on appeal to the validity of the plea, the jurisdiction of the trial court, and the 

legality of the sentence imposed. Commonwealth v. Stradley, 50 A.3d 769, 

770 (Pa. Super. 2012), citing Commonwealth v. Boyd, 835 A.2d 812, 819 

(Pa. Super. 2003). The legality of a sentence is a non-waivable issue. 

Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007). The fact that counsel 

failed to file post-sentence motions to preserve a discretionary challenge is, 

therefore, inconsequential, and Leanier’s claim of ineffectiveness is clearly 

meritless. The PCRA court correctly denied relief without a hearing.2 

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2 With respect to the legality of the restitution order, we emphasize that 

restitution is authorized by 18 Pa.C.S.A. § 1106, which specifically mandates 

full restitution where a defendant’s crimes directly resulted in loss of property. 
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Section 1106 of the Crimes Code, restitution for injuries to person or property, 

provides:

(a) General rule.—Upon conviction for any crime wherein 

property has been stolen, converted or otherwise unlawfully 

obtained, or its value substantially decreased as a direct result of 

the crime, or wherein the victim suffered personal injury directly 

resulting from the crime, the offender shall be sentenced to make 

restitution in addition to the punishment prescribed therefor.

18 Pa.C.S.A. § 1106 (emphasis added). Subsection (c)(1)(i) of section 1106 

pertains to mandatory restitution and states in pertinent part that the court 

“shall order full restitution . . . so as to provide the victim with the fullest 

compensation for the loss,” and that the court “shall not reduce a restitution 

award by any amount that the victim has received from an insurance company 

but shall order the defendant to pay any restitution ordered for loss previously 

compensated by an insurance company to the insurance company.” 18 

Pa.C.S.A. § 1106(c)(1)(i) (emphasis added). See also 18 Pa.C.S.A. § 

1106(h) (“Victim” includes “any insurance company that has compensated the 

victim for loss under an insurance contract.”). 

As this Court stated on direct appeal:

The statute specifically mandates restitution to the victim, as well 

as any insurance company which provided reimbursement to the 

victim as a result of the appellant’s criminal conduct. See 18 

Pa.C.S.A. § 1106. That is precisely what occurred in this case, 

and therefore, . . . the trial court had the statutory authority to 

order full restitution to the victim and the insurance company. 

Commonwealth v. Leanier, supra at *8. The Commonwealth 

demonstrated that Taylor’s insurance company assessed the damage to be 

worth a specific sum of money, for which Taylor was paid. Thus, a clear factual 

basis was established for awarding restitution in the amount paid by the 

insurance to compensate Taylor for the damage caused by Leanier’s criminal 

conduct. See also 18 Pa.C.S.A. § 1106(c)(1)(i) (Mandatory restitution.--(1) 

The court shall order full restitution: (i) Regardless of the current financial 

resources of the defendant, so as to provide the victim with the fullest 

compensation for the loss.”); Commonwealth v. Leber, 802 A.2d 648, 652 

(Pa. Super. 2002) (recent amendments to Sentencing and Crimes Codes 
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Order affirmed.

Judge Ott joins the Memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/24/18

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establish that restitution in criminal case is mandatory and defendant’s ability 

to pay is irrelevant unless and until he defaults on restitution order), citing

Commonwealth v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998).