J-S54005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KERRY ALLAN LAVERDE, ANDRE 

MICHAEL NESTOR,

Appellants No. 1094 WDA 2015

Appeal from the Order Entered June 23, 2015

In the Court of Common Pleas of Washington County

Criminal Division at No(s): 

CP-63-CR-0002433-2009

CP-63-CR-0002437-2009

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KERRY ALLAN LAVERDE, ANDRE 

MICHAEL NESTOR,

Appellants No. 1095 WDA 2015

Appeal from the Order Entered June 23, 2015

In the Court of Common Pleas of Washington County

Criminal Division at No(s): 

CP-63-CR-0002433-2009

CP-63-CR-0002437-2009

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2016
J-S54005-16

- 2 -

Appellants, Kerry Allan LaVerde and Andre Michael Nestor, each appeal 

from the trial court’s June 23, 2015 identical orders denying their “Motion for 

Release of Property,” in which Appellants sought return of $429,000 that 

was jointly owned by them, and which had been seized following their 

arrests for theft-related offenses committed against Meadows Racetrack and 

Casino.1 That money was later forfeited by LaVerde on January 3, 2011, in 

order to satisfy a sentence of restitution imposed after he pled guilty to 

three counts of receiving stolen property. After careful review, we affirm.

Briefly, Appellants argue on appeal that the trial court should have 

granted their “Motion for Release of Property,” or at least conducted a 

hearing on that motion, because LaVerde could not have “permissibly 

agree[d] to forfeit” money that was jointly owned by Nestor. They also 

contend that LaVerde’s sentence of restitution “is now and always was 

illegal[,]” and “Nestor’s [d]ue [p]rocess rights were violated when he was 

not ever provided notice and an opportunity to be heard and present his 

innocent owner defense to the forfeiture of the monies.” Appellants’ Brief at 

9. 

We have reviewed the certified records, the briefs of the parties, and 

the applicable law. We have also examined the well-reasoned opinion by the 

Honorable John F. DiSalle of the Court of Common Pleas of Washington 

____________________________________________

1 This Court sua sponte consolidated LaVerde’s and Nestor’s appeals by per 

curiam order dated September 18, 2015.
J-S54005-16

- 3 -

County. Therein, Judge DiSalle concisely sets forth the rather complex 

procedural history underlying this appeal. He then deftly addresses the 

issues raised by Appellants herein, discussing several, equally reasonable 

bases for denying Appellants’ “Motion for Release of Property.” See Trial 

Court Opinion (TCO), 2/5/16, at 5-9 (concluding that the motion was 

“untimely as to all issues presented, there [were] no genuine issues of fact, 

and the issues are moot”). We find especially compelling Judge DiSalle’s 

conclusion that Appellants’ motion is untimely. See id. at 5-6, 7-9. 

Notably, Appellants offer no argument in their brief to this Court to challenge 

Judge DiSalle’s determination in this regard. Accordingly, Appellants’ have 

failed to demonstrate any error in Judge DiSalle’s decision denying their 

“Motion for Release of Property.” Therefore, we adopt Judge DiSalle’s 

opinion as our own and affirm the court’s June 23, 2015 order for the 

reasons set forth therein.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2016
--------------------------- . 

I Defendants' Motion for Release of appears to have been presented on April I 0, 2015, but was never flied or made 

part of the official record for review by the Superior Court. 

La Verde and Nestor will hereinafter, when being referenced jointly, be referred to as "Defendants." 

3 La Verde docket entry 7; Nestor docket entry 8. 

Defendants, along with a third co-conspirator, were charged with deliberately exploiting a 

incidents involving the misuse of video poker machines at the Meadows Racetrack and Casino.3 

18 Pa C.S. § 7615; and Criminal Conspiracy under 18 Pa.C.S. § 903. The charges arose out of 

of Unlawful Activity under 18 Pa C.S. § 5111; computer offenses under 18 Pa C.S. § 7611 and 

3921, 18 Pa.C.S. § 3922, 18 Pa C.S. § 3924, 18 Pa C.S. § 3925; offenses on Dealing in Proceeds 

Defendants Kerry La Verde (hereinafter "La Verde") and Andre Nestor (hereinafter 

"Nestor'T' were arrested on October 6, 2009, on numerous Theft offenses under 18 Pa C.S. § 

Factual and Procedural History 

motion was denied by the trial court on June 23, 2015. 

case was done so without authority and that the money should be returned to Defendants. The 

OPINION OF COURT :: '.~~ --,:, 

.-· v.,; ":JC 

:-J;·:., N 

This matter comes before the Court upon Defendants' direct appeal from th~:~tifal co~'s 

-·· -.J, 

Order dated June 23, 2015, denying Defendants' Motion for Release of Property, The motion, 

dated April 10, 20151, asserted that $429,945 seized by the Commonwealth and forfeited in the 

"Tl 

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..... 

O") 

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CD 

I 

U1 

KERRY ALLAN LA VERDE, 

Defendant 

ANDRE MICHAEL NESTOR, 

Defendant 

No. 2433-2009 

2437-2009 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

vs. 

COMMONWEALTH OF 

PENNSYLVANIA, 

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA 

CRJMINAL DIVISION 

Circulated 08/16/2016 03:12 PM
2 

4 La Verde docket entry 6; Nestor docket entry 6. 

5 Id. 

6 See La Verde docket entry 22; Nestor docket entry 24. 

1 18 Pa.C.S. § 3925. 

3 La Verde docket entry 18. 

9 Nestor docket entry 22. Nestor was being charged with violations of federal law based on similar actions in Las 

Vegas, Nevada, and the United States Attorney's Office requested that the Commonwealth's charges be withdrawn 

so that Nestor's conduct in this case could be used against him in any potential sentencing in his federal case. 

through search warrants issued in the case from all bank accounts, safety deposit boxes, and lock 

in his Order of Sentence, that La Verde would forfeit (I) all monies seized titled in his name 

At the time La Verde entered his plea, he and his counsel agreed, and thus it was set forth 

States Attorney.9 

consideration of an agreement reached between the Commonwealth and the Office of the United 

prosecution against Nestor in the United States District Court for the District of Nevada and in 

\ 

Commonwealth's Motion for Nolle Prosse of Nestor's charges in consideration of the pending 

of (3) years of probation and was ordered to pay restitution in the amount of $429,945.00 to the 

Meadows Racetrack and Casino.8 Thereafter, on February 11, 2011, the trial court granted the 

Receiving Stolen Property", Misdemeanors of the First Degree, for which he received a sentence 

On January 3, 2011, La Verde entered a negotiated guilty plea to three counts of 

Defendants' shared residence. 

6 

$8,740.00 in cash and a 2009 Nissan Rogue (VIN: JN8AS58VX9W450247) were seized from 

$429,000 was seized from two bank safe/strong boxes held jointly in Defendants' names, and 

for Defendants' various financial accounts and for Defendants' residence. Approximately 

After Defendants were arrested, the Pennsylvania State Police obtained search warrants 

entering a valid wager.4 The actors, over a fifteen (15) day period, each cashed in different 

jackpot slips at different times, with the fraudulent jackpots ultimately totaling $429,945.s 

screen changes to force the machine to register an illegitimate jackpot on the screen without ever 

programming error in a video poker machine, utilizing a complex series of button strokes and 
3 

10 LaVerde docket entry 18. 

11 Laverde docket entry 19. 

12 La Verde docket entry 22; Nestor docket entry 24. 

13 Id. 

14 Id 

was seized in the case, and the Commonwealth agreed to release the Nissan Rogue and the 

entered on January 28, 2015, wherein Defendants agreed to forfeit an additional $10, 164 that 

reached a settlement with the Attorney General's office on that motion, and a consent order was 

have a Rule issued on the Commonwealth to show why the Defendant's Petition should not be 

granted.12 The Petition purportedly sought the return/release of $8,740.00 in cash and a 2009 

Nissan Rogue (VIN: JN8AS58VX9W450247) seized from Defendants' residehce.13 Defendants 

additionally sought to have their PNC Bank and Citizens Bank accounts unfrozen. 

14 Defendants 

On September 24, 2014, Defendants filed a Motion for Release of Property, seeking to 

La Verde and Nestor were completely closed. 

completed his sentence of probation January 3, 2014, and at that time, all cases against both 

Nestor's Federal charges were ultimately dismissed on November 25, 20 I 3. La Verde 

unfrozen and repaid to the victim, which the court granted the same day, directing that the 

Pennsylvania State Police make the funds available to the Meadows Racetrack and Casino. 

11 

February 11, 2011 and Filed February 14, 2011, requesting that the forfeited $429,945 be 

The Commonwealth filed a Petition to Unfreeze Assets for Victim Restitution, dated 

or direct or collateral appeal was filed on behalf of La Verde following his sentencing. 

consent and agreement was ordered as part of La Verde's sentencing. No post-sentencing motion 

frozen until further Order of Court.10 No written forfeiture petition was filed as the forfeiture by 

ordered by the lower court that all monies and property seized shall be forfeited and shall remain 

home; and (3) the 2009 Nissan Rogue vehicle titled in his name. It was further agreed to and 

boxes specifically including those at Citizen's Bank and PNC Banks; (2) cash seized from his 
4 

ts La Verde docket entry 25; Nestor docket entry 28. 

16 As noted above, it appears that this motion was never filed, and is not part of the official record for review by the 

Superior Court. 

17 La Verde docket entry 28; Nestor docket entry 30. 

18 La Verde docket entry 29; Nestor docket entry 31. 

19 La Verde docket entry 30; Nestor docket entry 32. 

20 La Verde docket entry 3 I; Nestor docket entry 33. 

21 La Verde docket entry35; Nestor docket entry 37. 

22 La Verde docket entry 36, 37; Nestor docket entry 38, 39. 

21 Defendants' third "issue" appears to be a statement regarding the concurrently filed Petition for Extension of 

Time, rather than an assignment of error or an issue for consideration on appeal. 

2. The Trial Court erred and/or abused its discretion in denying the 

Defendants/ Appellants' [sic] a hearing on their Motion for Return of Property. 

1. The Trial Court erred and/or abused its discretion in denying the 

Defendant/Appellants; Motion to for [sic] Return of Property. 

The Concise Statement listed the following three (3) "issues?": 

Matters Complained of on Appeal l 925(b) on August 31, 2015, along with a Petition for 

Extension of Time of (30) days from receipt of transcripts to answer the Court's 1925(b) Order. 

22 

Concise Statement of the Matters Complained of on Appeal within twenty-one (21) days of the 

entry of that Order pursuant to Pa. R.A.P. 1925(b).21 Defendants filed a Concise Statement of 

On July 16, 2015, Defendants filed a timely appeal to the Superior Court of 

Pennsylvania. 

20 By order dated August 19, 2015, the trial Court directed Defendants to file a 

Release of Property. 

19 

the Rule was held on June 23, 2015, after which the trial court denied Defendants' Motion for 

Commonwealth filed its response to the Motion and the Rule on June 11, 2015.18 A hearing on 

On May 18, 2015, the trial court issued a Rule upon the Commonwealth to show cause, if 

any, why a hearing should not be granted on the motion, returnable for June 23, 2015.17 The 

Defendants later presented a new Motion for Release of Property dated April l 0, 2015, 

seeking return of the $429,925, which is the subject of the instant appeal." 

personal bank accounts back to Defendants. 15 
5 

24 Defendants' Concise Statement of Matters Complained ofon Appeal, filed August 31, 20 l 5. 

25 See Pa. R.Crim.P. 588. 

timing of such a motion, that "a return motion is timely when it is filed by an accused in the trial 

Procedure, but the Rule does not explicitly provide any guidance as to timing or deadlines for the 

filing of such a motion.25 However, the Supreme Court of Pennsylvania has held, regarding the 

A Motion for Return of Property is governed by Rule 588 of the Rules of Criminal 

the motion. 

court asserts that this motion is untimely) that the issue is moot, and that it did not err in denying· 

The first part of the motion is Defendants' "Motion for Release of Property." The trial 

issues are moot. The court will address the two parts of the motion separately below. 

· the motion is untimely as to all issues presented, there are no genuine issues of fact, and the 

Restitution." The trial court asserts that it did not err in denying the motion without a hearing, as 

Release of Property," and the other being a "Motion to Open Judgment/Strike Order of 

Defendants' motion contains two separate issues, one being the actual "Motion for 

Opinion 

was granted. 

Defendants filed no supplements or amendments to their Concise Statement after the extension 

l 925(b) statement. The official transcript of the proceedings was filed on September 4, 2015. 

extension, and gave Defendants until (30) days after the receipt of the transcripts to file their 

By Order dated September 4, 2015, the trial court granted Defendants' aforementioned 

3. The Defendants/Appellants' [sic] are filing concurrently with the filing of the 

within l 925(b) Statement a Petition for Extension of Time· relative to the Court's 

l 925(b) Order due to the fact that, although this Court's Order was docketed on 

August 20, 2015, the undersigned hereby affirms that same was not received until 

August 28, 2015 at 11 :00 a.m. Accordingly, the Defendant's [sic] reserve the right 

to Amend the within l 925(b) Statement upon receiving the transcripts requested 

relative to the Motion for Return of Property proceeding that took place on June 

23, 2015.24 
6 

26 Commonwealth v. Allen, 107 A.3d 709, 716-717 (Pa. 20!4) (citing 42 Pa.C.S. § 5505 (providing that a trial court 

retains jurisdiction to modify or rescind an order within thirty days of its entry, ifno appeal has been taken)). 

27 Commonwealth v. Romberger, 414 Pa. 190, 196, 378 A.2d 283, 286 (1977). See also Commonwealth v. Setzer, 

258 Pa. Super 236, 392 A.2d 772 (1978); Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa. Cmmw. 

2000). 

28 Commonwealth v. A lien, supra. 

its merits, the trial court asserts that the issue presented is moot, and thus it did not err in denying 

Even if the Superior Court were to disregard the untimeliness of the motion and consider 

denying the motion without a hearing. 

presentation of the instant motion. The motion is therefore untimely, and the court did not err in 

divested jurisdiction over both cases on or about March 9, 2011 - over four (4) years prior to the 

the $429,945. As in Commonwealth v. Allen, the trial court here had no jurisdiction in the matter 

after thirty (30) days following the disposition of the case(s).28 As such, the trial court had 

La Verde or Nestor raise any of the claims made in the instant motion, or move for the release of 

completion of La Verde's sentence. At no time during any of the prior proceedings did either 

dismissal of Nestor's Federal charges, and over one(]) year and three (3) months after the 

and the grant of nolle prosse in Nestor's state case, nearly one and a half (1 1/2) years after the 

motion was presented April 10, 2015 -over four (4) years after La Verde's judgment of sentence 

La Verde completed his three year sentence of probation on or about January 3, 2014. The instant 

Defendant Nestor's Federal charges were dismissed on November 25, 2013, and Defendant 

January 3, 2011, Defendant Nestor's state charges were no Ile prossed on February 11, 2011, 

In the present case, Defendant La Verde entered his guilty plea and was sentenced on 

and will not be considered on a review of that proceeding!,27 

jurisdiction that where an issue is cognizable in a given proceeding and is not raised it is waived 

have also held, regarding timeliness of raising an issue, that "[i]t is a fundamental doctrine in this 

court while that court retains jurisdiction, which is up to thirty days after disposition.t''" Courts 
7 

29 Commonwealth v. Motsinger, 68 A.3d 2013 (Pa. Cmmw. 2013). See also Commonwealth v. One 1978 lincoln 

Mark V, 52 Pa. Cmwlth. 353, 415 A.2d 1000 (!980). 

3° Commonwealth v. 2010 Buick Enclave, 99 AJd l 63 (Pa. Cmmw.2014) (holding that items cannot be forfeited 

absent a conviction). 

Restitution." The trial court asserts that the motion is untimely, the issue is waived, and that the 

The second part of the motion is Defendants' "Motion to Open Judgment/Strike Order of 

instant motion. Therefore, the court did not err in denying Defendants' motion without a hearing. 

more properly raised in tort as a civil conversion claim against La Verde, rather than here in the 

not to La Verde, and that La Verde lacked the authority to forfeit the money appears to be an issue 

part of his negotiated plea agreement. Nestor's contention that the money belonged to him and 

was convicted via a guilty plea of several crimes, and La Verde agreed to forfeit the money as 

La Verde was a joint owner of the safe deposit box from which the money was seized, La Verde 

forfeited as he was never convicted of any crime in the matter. However, the facts remain that 

citing Commonwealth v. 2010 Buick Enclave,30 contends that the money could not be legally 

Nestor claims in the motion that the money belongs to him, rather than to La Verde, and 

moot. 

been in the possession of the Commonwealth since early in 2011, the issue, as stated above, is 

available to the Meadows Racetrack and Casino, the victim, as restitution. As the money has not 

on February 11, 2011, ordered to be released to the Pennsylvania State Police to be made 

the restitution portion of his negotiated plea agreement on January 3, 2011. The money was then, 

Defendants La Verde and Nestor. Laverde, as one of the owners agreed to forfeit the $429,945 as 

funds in question were U.S. currency seized from bank safe deposit boxes owned jointly by 

longer in possession of property, a petition filed for the return of that property is moot."29 The 

The Commonwealth Court has repeatedly held that ''where the Commonwealth is no 

the motion without a hearing. 
8 

31 Pa. R.Crim.P. 720(A)(l). 

32 Pa. R.Crim.P. 720(A)(3). 

33 42 Pa.C.S. § 9545(b)(I ). 

34 See Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000); Commonwealth v. Hockenberry, 455 Pa. Super. 

626, 689 A.2d 626 (1997). 

35 Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999). 

36 Id. at 328·329. 

37 42 Pa.C.S. § 9543(a)(])(i). 

Here, as Nestor received no sentence in his case, the court assumes that the legality of 

or parole for the crime[.]"37 

eligible for relief, that the petitioner be "currently serving a sentence of imprisonment, probation 

in nature, and that "a court has no authority to extend filing periods except as the statute 

permits.v'? In addition to its timeliness requirements, the PCRA statute requires that for one to be 

review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the 

exceptions thereto. "35 The Supreme Court also held that these time limitations are jurisdictional 

Supreme Court of Pennsylvania has held that "[ajlthough legality of sentence is always subject to 

defendants the benefit of considering untimely motions and appeals as PCRA petitions when 

those challenges still fall within the timeliness provisions of the PCRA statute. 

34 However, the 

judgment becomes final. 33 When a legality of sentence issue is raised, courts have given 

petition challenging the legality of sentence must be filed within one (1) year of the date the 

thirty (30) days of the imposition of sentence.i" and a Post Conviction Relief Act ("PCRA") 

the imposition of sentence, 

31 direct appeals from a judgment of sentence must be filed within 

proceedings. Post-sentence motions to modify a sentence must be filed within ten (10) days of 

still apply. Different timeliness requirements exist for filings depending on the nature of the 

itself waive subsequent challenges to the legality of a sentence, timeliness requirements for filing 

legality. While Defendants are correct in their assertion that entering a guilty plea does not in 

Defendants assert that the issue regarding the order of restitution is a question of sentence 

court did not err in denying the motion without a hearing. 
---·--· --- -··----·----------··~-----·- 

9 

38 See id 

dflJ(/1 

l /i~J. 

John'~&e:Judge 

Date: 'l /f f / ~ 

BY THE COURT: 

dismissed, and that the trial court's order dated June 23, 2015 should be affirmed. 

Accordingly, the trial Court submits that Defendant's appeal should be quashed and 

was presented. 

38 

serving any sentence, no remedy under the PCRA was available to him at the time the motion 

(1) year and three (3) months prior to the presentation of this motion. Because he was no longer 

existed in this case, as stated above, he completed his sentence on or about January 3, 2014, one 

without a hearing. Additionally, even had La Verde asserted a reason that such an exception 

court no longer has jurisdiction over the case, and the court did not err in denying the motion 

no exception to the timeliness requirements exists int.he case, the motion is untimely, the trial 

even the one (I) year allowed for a PCRA petition. As La Verde offers no justification, and since 

days allowed for a post-sentence motion, the thirty (30) days allowed for a direct appeal, and 

about February 2, 2011. The instant petition was presented April 10, 2015, well after the ten (10) 

no appeal from that judgment was filed, La Verde's judgment of sentence became final on or 

motion was not presented for more than four (4) years after La Verde's judgment of sentence. As 

La Verde's sentence is that which is being challenged. As stated above, however, the instant