Com. v. Hall, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN BRADY HALL :
:
Appellant : No. 771 MDA 2020
Appeal from the PCRA Order Entered May 1, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002735-2015
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 24, 2021
Appellant Steven Brady Hall appeals pro se from the order dismissing
his timely first petition under the Post Conviction Relief Act1 (PCRA). Appellant
claims that the trial court imposed illegal fines without considering his ability
to pay. Appellant also challenges his registration requirements under the
Sexual Offender Registration and Notification Act2 (SORNA). We affirm in part
and reverse in part, vacate the judgment of sentence to the extent it imposed
fines, and remand as set forth below.
We adopt the PCRA court’s summary of the facts. See PCRA Ct. Op.,
7/15/20, at 1. Briefly, on March 9, 2017, Appellant entered a negotiated guilty
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1 42 Pa.C.S. §§ 9541-9546.
2 42 Pa.C.S. §§ 9799.10-9799.41 (eff. 2012, subsequently amended 2018).
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plea to charges of aggravated indecent assault, indecent assault, unlawful
conduct with a minor, and corruption of a minor, all of which occurred in 2008.
Plea Agreement, 3/9/17, at 1-2; Guilty Plea Hr’g, 3/9/17, at 1-2. Appellant’s
plea agreement set forth an agreed-upon sentence of four to eight years’
incarceration followed by a consecutive five years’ probation, with “fines,
cost[s] . . . left to the discretion of the” trial court. Plea Agreement at 1-2;
accord N.T. Guilty Plea Hr’g at 2-3. Following an evaluation, Appellant was
found not to be a sexually violent predator (SVP). N.T. Sentencing Hr’g,
5/11/17, at 2.3
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3 Appellant was also informed that he was considered a Tier III offender and
would be subject to lifetime registration requirements under SORNA. At the
time of Appellant’s original SVP and sentencing hearing, SORNA I was in
effect. On July 19, 2017, our Supreme Court decided Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), which held that SORNA I’s registration
requirements were “punitive in effective.” Muniz, 164 A.3d at 1128. As such,
the Court concluded that SORNA I violated ex post facto principles when
applied to individuals who, like Appellant, committed a sexual offense before
December 20, 2012, the effective date of SORNA I. See id. at 1223; see
also Commonwealth v. Lippincott, 208 A.3d 143, 150 (Pa. Super. 2019)
(en banc). Subsequently, the General Assembly amended SORNA I and
passed SORNA II, in part to address Muniz. SORNA II divides sex offender
registrants into two distinct subchapters: Subchapter H and Subchapter I. As
relevant here, Subchapter I governs individuals who were convicted for an
offense that occurred “on or after April 22, 1996, but before December 20,
2012,” and whose registration requirements had not yet expired. See 42
Pa.C.S. § 9799.52. On July 21, 2020, our Supreme Court held that
Subchapter I “is nonpunitive and does not violate the constitutional prohibition
against ex post facto laws.” Commonwealth v. Lacombe, 234 A.3d 602,
605-06 (Pa. 2020).
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On May 31, 2017, the trial court imposed the agreed-upon sentence and
also ordered Appellant to pay a fine of $50 for each of the four charges, for a
total of $200. Order, 5/31/17.4 However, the trial court did not inquire as to
Appellant’s ability to pay those fines. Appellant did not appeal.
On May 11, 2018, the PCRA court docketed Appellant’s pro se first timely
PCRA petition. The PCRA court appointed Shannon Sprow, Esq., as Appellant’s
PCRA counsel, and she filed a motion to withdraw on July 16, 2018. Attorney
Sprow’s motion to withdraw noted that Appellant had requested that she raise
a claim that the retroactive application of SORNA was unconstitutional. Mot.
to Withdraw, 7/16/18, at ¶ 17. Counsel opined that the claim lacked merit.
Id.On July 18, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice,
which advised that (1) Appellant had a right to file a response, (2) counsel’s
motion to withdraw complied with Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),
and (3) it would grant counsel’s petition to withdraw. Rule 907 Notice,
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4The trial court’s original sentencing order, entered May 11, 2017, imposed a
sentence of forty-eight years’ imprisonment instead of the agreed-upon
sentence of four to eight years’ imprisonment. Order, 5/11/17. On May 31,
2017, the trial court issued an amended sentencing order with the correct
sentence. Order, 5/31/17. We add that although the record does not specify
whether Appellant’s fines were mandatory or non-mandatory, none of
Appellant’s convictions called for a mandatory fine.
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7/18/18.5 Appellant did not file a response to the Rule 907 notice, and the
PCRA court took almost two years to issue its final order dismissing Appellant’s
first PCRA petition. Order, 4/30/20.6
Appellant timely filed a pro se notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. In his Rule 1925(b) statement, Appellant
claimed that SORNA was improperly applied to him retroactively in violation
of ex post facto principles. See Rule 1925(b) Statement, 6/24/20, at 1-2
(unpaginated) (citing Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
(plurality), and Commonwealth v. Moore, 222 A.3d 16 (Pa. Super. 2019),
vacated, 240 A.3d 102 (Pa. 2020)). The PCRA court filed a responsive Rule
1925(a) opinion on July 15, 2020, which stated, in relevant part, that
Appellant waived the illegal fine issue and that his SORNA claims were
meritless. PCRA Ct. Op. at 4.
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5 The trial court’s Rule 907 notice, somewhat confusingly, stated that “notice
is hereby given of this court’s intention to dismiss [Appellant’s] PCRA petition
and grant court-appointed counsel’s petition to withdraw,” which tends to
suggest that the court intended to grant counsel’s petition to withdraw. Rule
907 Notice, 7/18/18. No party, however, disputes that Attorney Sprow was
granted permission to withdraw.
6 Meanwhile, before the PCRA court dismissed Appellant’s first PCRA petition,
the PCRA court docketed pro se Appellant’s second PCRA petition. The PCRA
court appointed Wendy Grella, Esq., as counsel, and Attorney Grella filed a
petition to withdraw, to which Appellant filed a pro se response. On August
10, 2020, the PCRA court issued an order stating that Appellant’s second PCRA
petition “shall not be entertained” as it was premature because the instant
appeal was before this Court. Order, 8/10/20. The order also granted
Attorney Grella permission to withdraw. Id.-4-
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On appeal, Appellant raises the following issues, which we have
reordered as follows:
1. Where [Appellant] bargains for [and] agrees to pay a fine
as part of a negotiated plea agreement, must the sentencing
court conduct a separate [inquiry] into [Appellant’s] ability
to pay the fine?
2. Did the trial court err by subjecting [Appellant] to register
as a sex offender under SORNA for a crime that happened
before SORNA’s effective date[?]
3. Did the trial court err by forcing [Appellant] to sign
registration requirements that included mandatory
minimums for sex offenders, when Megan’s Law II had no
mandatory minimums unlike SORNA[?]
4. Did the trial court err by forcing [Appellant] to register with
the [Pennsylvania State Police (PSP)] in which the PSP
dissemination of personal information to the public when
Megan’s Law II only forced sexually violent predators to
public notifications[?]
Appellant’s Brief at 9-10 (unpaginated) (formatting altered).
Appellant’s first issue is that the trial court erred by failing to inquire
into his ability to pay the fine included in the negotiated guilty plea. Id.Although Appellant does not argue this claim in his brief, he subsequently filed
a letter with this Court acknowledging that his “brief may be incomplete,” and
requesting that this Court consider the fact that he was moved to a prison
dormitory and no longer has the privacy to work on his case. Letter,
10/21/20.
In reviewing Appellant’s claim, we are guided by the following principles:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
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supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered).
When a defendant claims that the trial court imposed nonmandatory
fines without conducting an ability-to-pay hearing, it constitutes a
nonwaivable challenge to the legality of the sentence. See Commonwealth
v. Ford, 217 A.3d 824, 831 (Pa. 2019). “Challenges to the legality of a
sentence—even a sentence resulting from a negotiated guilty plea—are
cognizable under the PCRA.” Id. (citations omitted); see also
Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (stating
that “a criminal defendant cannot agree to an illegal sentence, so the fact that
the illegality was a term of his plea bargain is of no legal significance”).
Further, as long as this Court has jurisdiction over the matter, an illegal
sentencing claim is reviewable, cannot be waived, and may be raised by this
Court sua sponte. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super.
2014); Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007).
When a trial court orders a defendant to pay nonmandatory fines
without making a record of a defendant’s ability to pay those fines, the
sentence is illegal. 42 Pa.C.S. § 9726(c); Ford, 217 A.3d at 829 (stating that
“the plain language of [Section 9726(c)] is clear: trial courts are without
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authority to impose non-mandatory fines absent record evidence that the
defendant is or will be able to pay them”); Commonwealth v. Snyder, ---
A.3d ---, 2021 WL 1324388, at *10-11 (Pa. Super. filed Apr. 9, 2021)
(vacating the imposition of fines because “the law is clear that the [c]ourt
must consider a defendant’s ability to pay fines prior to their imposition”).7
Here, the record confirms that the trial court did not inquire into
Appellant’s ability to pay before imposing $50 fines on each of the four counts
included in the negotiated plea agreement. As such, that portion of
Appellant’s sentence is illegal. See 42 Pa.C.S. § 9726(c); Ford, 217 A.3d at
828; Snyder, 2021 WL 1324388, at *10-11. We therefore vacate the portion
of the sentence imposing court fines and remand for the trial court to
determine the appropriate amount of fines, if any, in accordance with Section
9726. See 42 Pa.C.S. § 9726(c); Ford, 217 A.3d at 828; Snyder, 2021 WL
1324388, at *10-11.8
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7 In contrast to Ford, which addressed fines, in Commonwealth v. Lopez, -
-- A.3d ---, 2021 WL 1096376 (Pa. Super. filed Mar. 23, 2021) (en banc), an
en banc panel of this Court resolved whether the trial court was required to
hold a hearing under Pa.R.Crim.P. 706(C) to determine the defendant’s ability
to pay before imposing court costs at sentencing. See Lopez, 2021 WL
1096376, at *1. The Lopez Court held that although the trial court has the
discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only
requires the trial court to hold such a hearing when the defendant faces
incarceration for failure to pay court costs that were previously imposed. Id.8In Ford, the defendant entered a negotiated guilty plea which included an
agreed-upon term regarding the amount of non-mandatory fines. See Ford,
217 A.3d at 827. On appeal, this Court concluded that the fines were illegal
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Appellant’s remaining issues challenge his registration requirements
under SORNA. First, Appellant claims that the trial court erred by requiring
Appellant to register as a sex offender under SORNA for a crime that occurred
before SORNA’s effective date. Appellant’s Brief at 9-10 (unpaginated).
Appellant also asserts that the trial court erred by requiring Appellant to sign
registration requirements that included mandatory minimum sentences for
non-compliant sex offenders when Megan’s Law II had no such mandatory
minimum sentences. Id. Finally, Appellant argues that he should not be
forced to register with the Pennsylvania State Police when, under Megan’s Law
II, only SVPs were required to register. Id.
Initially, we note that Appellant does not include any argument in
support of these issues in his brief. As noted above, Appellant acknowledged
his brief was incomplete but essentially requested leniency. See Letter,
10/21/20.
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because the trial court failed to conduct an ability-to-pay hearing pursuant to
Section 9726. Id. at 828. Therefore, we vacated the portion of the
defendant’s sentence that imposed the illegal fines and remanded the matter
for resentencing in accordance with Section 9726. Id. Our Supreme Court
later reversed, explaining that “[b]ecause selectively vacating specific
conditions of a plea agreement threatens to upset the parties’ underlying
bargain, the better remedy is to put both sides right back where they started,
at which point they can begin plea negotiations anew or proceed to trial.” Id.
at 831. Here, unlike in Ford, there was no agreement regarding the amount
of fines. Instead, the parties left that determination to the discretion of the
trial court. Under these circumstances, where the specific fines do not affect
the basis of the parties’ plea bargain, it is not necessary to vacate Appellant’s
entire judgment of sentence. Cf. id.
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When an appellant fails to properly develop issues on appeal, this Court
will not consider the merits of those claims. See Commonwealth v. Knox,
50 A.3d 732, 748 (Pa. Super. 2012) (holding that an appellant’s failure to cite
legal authority in support of his argument results in waiver); see also
Pa.R.A.P. 2119(a) (requiring that an argument section contain discussion and
citation of pertinent authorities); Pa.R.A.P. 2101 (stating that “if the defects
are in the brief . . . are substantial, the appeal or . . . may be quashed or
dismissed”). Here, Appellant has failed to develop his issues in any
meaningful fashion capable of review. Therefore, they are waived. See Knox,
50 A.3d at 748.
In any event, we note that Appellant appears to challenge his
Subchapter I registration requirements based on his claim that SORNA is more
punitive than Megan’s Law II and cannot be retroactively applied to him.
However, even if Appellant properly developed this claim, he would not be
entitled to relief. See Lacombe, 234 A.3d at 605-06 (noting that the
appellant was not entitled to relief from SORNA II based on Muniz, which
applied to SORNA I and holding that that Subchapter I “is nonpunitive and
does not violate the constitutional prohibition against ex post facto laws”).
In sum, we conclude that the PCRA court erred as a matter of law in
denying relief on Appellant’s claim regarding the illegal fine. See Sandusky,
203 A.3d at 1043-44; see also Ford, 217 A.3d at 829. Accordingly, we affirm
in part, reverse in part, and remand for resentencing solely for a determination
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regarding the amount of non-mandatory fines in accordance with Section
9726.
Order affirmed in part and reversed in part. Judgment of sentence
vacated with respect to fines. Case remanded for resentencing on fines.9
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/24/2021
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9Appellant is entitled to counsel for resentencing, unless he wishes to proceed
pro se.
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