Commonwealth v. Rivera , 2014 Pa. Super. 140 ( 2014 )

OPINION BY

JENKINS, J.:

Hector Rivera was charged with receiving stolen property¹ and retail theft² for stealing several items from a general store. The Wayne County Public Defender entered his appearance for Rivera. Several weeks after waiving his preliminary hearing and arraignment, Rivera pled guilty to both charges. The trial court sentenced Rivera to twelve months probation and restitution of $55.00. The court also ordered him to pay $500.00 for the “cost of the Public Defender’s representation,” an amorphous term of sentence that we refer to as the “Public Defender Assessment”, or “PDA”.

The trial court denied Rivera’s post-sentence motion objecting to the PDA. Rivera filed this timely direct appeal and a timely statement of matters complained of on appeal.

In its Pa.R.A.P. 1925(a) opinion, the trial court maintained that the PDA was a proper condition of probation under 42 Pa.C.S. § 9754(c)(ll), which authorizes the court to “require the defendant ... to pay such fine as has been imposed.” The court also contended that the PDA was valid under 42 Pa.C.S. § 9754(c)(13), which provides that the court may order the defendant “to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.”

For the reasons that follow, we hold that sections 9754(c)(ll) and (c)(13) do not authorize the PDA. We vacate Rivera’s judgment of sentence and remand for resen-tencing.

Rivera raised two issues in his statement of matters complained of on appeal:

1. Did the sentencing court impose an illegal sentence when it added as an item of cost to the Defendant’s May 9, 2013 Sentence the requirement that the Defendant pay $500 for the costs of the Public Defender when there is no statutory authority for the imposition of that cost by the sentencing court?

2. Did the sentencing court impose an illegal sentence when it added as an item of cost to the Defendant’s May 9, 2013 Sentence the requirement that the Defendant pay $500 for the costs of the Public Defender when there is no evidence of record supporting the basis for the $500 cost imposed by the sentencing court?

Brief for Appellant, p. 4.

In his first issue, which we find dispositive, Rivera argues that the PDA is an illegal condition of sentence under section 9754³. Our standard of review over the defendant’s objection to the legality of his sentence

[is] well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Id. at 1211 (citing Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super.2006)).

When interpreting a sentencing statute such as section 9754, we are mindful that

‘[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.’ 1 Pa.C.S. § 1921(a). The plain language of the statute is generally the best indicator of legislative intent, and the words of a statute ‘shall be construed according to rules of grammar and according to their common and approved usage_’ 1 Pa.C.S. § 1903(a). We generally will look beyond the plain language of the statute only when words are unclear or ambiguous, or the plain meaning would lead to ‘a result that is absurd, impossible of execution or unreasonable.’ 1 Pa.C.S. § 1922(1); see also Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n [618 Pa. 175], 55 A.3d 1056, 1058 (Pa.2012).

Commonwealth v. Hall, — Pa. -, 80 A.3d 1204, 1211 (2013). Since section 9754 is a penal statute, we must strictly construe this provision and interpret any ambiguity in the light most favorable to the criminal defendant. Id. at 1212 (“as a penal statute, Section 9754 must be interpreted in the light most favorable to [the defendant]”).

The first provision that the trial court cites as authority for the PDA is section 9754(c)(ll), which prescribes that the court “may require the defendant ... to pay such fine as has been imposed.” We do not think the PDA is a fine. In Commonwealth v. Wall, 867 A.2d 578 (Pa.Super.2005), we defined “fines” by comparing them with costs and restitution:

Often following a criminal conviction, the trial court places a monetary imposition on the defendant. The imposition of costs and restitution are not considered punishment. Both costs and restitution are designed to have the defendant make the government and the victim whole. Restitution compensates the victim for his loss and rehabilitates the defendant by impressing upon him that his criminal conduct caused the victim’s loss and he is responsible to repair that loss. See Commonwealth v. Runion, 541 Pa. 202, 205, 662 A.2d 617, 618 (1995). Costs are a reimbursement to the government for the expenses associated with the criminal prosecution. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (4th Cir.1988). Costs and restitution are akin to collateral consequences. Conversely, fines are considered direct consequences and, therefore, punishment. See Parry [v. Rosemeyer], 64 F.3d [110] at 114 [ (3d Cir.1995) ] (quoting [U.S. v.] Salmon, 944 F.2d [1106] at 1130 [ (3d Cir.1991) ]); see also Commonwealth v. Martin, 233 Pa.Super. 231, 335 A.2d 424 (1975) (requiring an indigent to pay a $5,000.00 fine was per se manifestly excessive and constituted too severe [a] punishment). The Legislature authorized fines for all offenses and intended to relate the amount of the fine to the gravity of the offense. See 18 Pa.C.S.A. § 1101 ...

Historically, fines are punishment. A fine is a monetary amount equal to the severity of the crime and has been used to ensure that a person does not receive a pecuniary gain from the offense.

Id., 867 A.2d at 583.

Although the judgment of sentence does not explain the purpose of the PDA, it appears to us that the trial court intended to earmark funds to a particular government unit (the Wayne County Public Defender) as reimbursement for its services, thus making the Public Defender more self-sufficient and less dependent on the taxpayers. While this objective is laudatory, it does not transform the PDA into punishment, because the PDA is not intended to “punish” Rivera or ensure that he “does not receive a pecuniary gain from the offense”. Wall, supra. For this reason, the PDA is not a fine and falls outside the scope of section 9754(c)(ll).

The trial court also asserts that the PDA is valid under section 9754(c)(13), which authorizes “any other conditions” of probation “reasonably related to [the defendant’s] rehabilitation.” We do not find the PDA permissible under this provision. Pennsylvania appellate courts have repeatedly refused to require defendants to pay the Public Defender for its services absent explicit statutory authority. See Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977); Commonwealth v. Verilla, 363 Pa.Super. 386, 526 A.2d 398 (1987); Commonwealth v. Pride, 252 Pa.Super. 34, 380 A.2d 1267 (1977); Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1975) (plurality). Most significantly, in Pride, this Court held, 5-2, that the trial court lacked statutory authority to order the defendant to pay $500.00 for the services of the Defender Association of Philadelphia following his convictions for rape and indecent assault. The majority overruled the dissent’s argument that section 9754(c)(13) authorized this condition of sentence, stating flatly that “there is no statutory authority to support the lower court’s order of reimbursement to the public defender.” Id., 380 A.2d at 1270. “Characterizing the repayment order as a probation condition,” the majority continued, “is an attempt to transform a statutorily unauthorized repayment into a permissible order.”⁴ Id.

Pride remains good law, since section 9754(c)(13) has the same language today as it did when Pride was decided. In view of Pride, we hold that section 9754(c)(13) does not authorize imposition of the PDA on Rivera.

We also conclude that the trial court did not validate the PDA under section 9754(c)(13) by labeling it a “cost” in its judgment of sentence. Costs are not part of the criminal’s sentence but are merely incident to the judgment. Commonwealth v. Nicely, 536 Pa. 144, 638 A.2d 213, 217 (1994) (citing Commonwealth v. Cauffiel, 97 Pa.Super. 202, 205-06 (1929)). As a mere incident to judgment, costs are not “reasonably related to the rehabilitation of the defendant,” the sine qua non of probationary conditions under section 9754(c)(13).

Our interpretation of section 9754(c)(13) is faithful to the Supreme Court’s instruction in Hall to construe section 9754 strictly. Our decision also is consistent with recent legislative history. In 1968, the legislature enacted 19 P.S. § 793, which required criminal defendants to reimburse the county for the expenses of court-appointed counsel. In the same year, the legislature enacted the Public Defender Act, which provided that “any person who has been convicted of making a false affidavit or false statement for the purpose of securing counsel or services under this act shall make restitution as the court shall determine to the county and the Commonwealth of Pennsylvania of all moneys paid on the basis of the false affidavit or false statement.” 16 P.S. § 9960.8. In 1984, the legislature repealed 19 P.S. § 793. There has been no new legislation since 1984 mandating payment for court-appointed counsel. This chain of events suggests that the legislature does not intend to assess individuals for the Public Defender’s services except for those defendants convicted of obtaining the Public Defender’s services by misrepresenting their financial status. Rivera does not fit within this narrow provision, since he was not convicted of submitting false statements or affidavits for the purpose of obtaining the Public Defender’s services.

Having agreed with Rivera’s first argument on appeal, we vacate the condition of his sentence directing him to pay the PDA⁵. We also remand this case to the trial court for resentencing, since our decision might affect the trial court’s sentencing scheme. Commonwealth v. Dobbs, 452 Pa.Super. 488, 682 A.2d 388, 392 (1996) (“If a correction by this court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand”). The court remains free on remand to impose fines, costs or restitution that are authorized by statute.

Judgment of sentence vacated; case remanded for resentencing; jurisdiction relinquished.

Judge ALLEN files a concurring statement.

1 . 18 Pa.C.S. § 3925(a).

2 . 18 Pa.C.S. § 3929(a)(1).

3 . Rivera contends in his brief that the PDA is not authorized under 42 Pa.C.S. § 9754(c)(13), but he fails to discuss whether the PDA is authorized under section 9754(c)(ll). Despite this omission, we will address whether the PDA is valid under section 9754(c)(ll), since objections to an illegal sentence "cannot be waived and may be reviewed sua sponte by this Court.” Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa.Super.2009) (citing Commonwealth v. Merolla, 909 A.2d 337, 347 (Pa.Super.2006)).

4 . The other decisions cited above — Terry, Ver-illa, and Opara — do not involve section 9754(c)(13). In Terry, our Supreme Court held that 19 P.S. § 793 did not authorize the Philadelphia Municipal Court to order the defendant to pay for the Public Defender’s representation after that court acquitted the defendant of drug-related charges. As discussed infra, the legislature repealed section 793 in 1984.

In Verilla, this Court held that no statutory authority existed to order the defendant to pay for the Public Defender following his conviction for rape and indecent assault.

And in Opara, following a guilty plea to driving under the influence of alcohol, the court sentenced the defendant to probation and ordered him either to pay $750.00 to the City of Philadelphia for the use of the Philadelphia Defender Association or spend 30 days in county prison for contempt. A plurality of this Court found this condition invalid, reasoning: "[T]here is no Pennsylvania statute specifically authorizing the reimbursement order ... There being no authority for the order of the lower court, the order must be vacated.” Id., 362 A.2d at 307, 308.

5 . In Rivera’s second argument on appeal, he argues that under due process principles articulated in Opara, the trial court erred by imposing $500.00 as a PDA without obtaining an accounting of the Public Defender’s actual costs. This issue is moot in view of our decision that the trial court lacked authority to impose these costs under sections 9754(c)(ll) and (c)(13).