Com. v. Keeno, S. ( 2020 )

J-A12014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN JAMES KEENO :
:
Appellant : No. 1763 WDA 2019
Appeal from the Judgment of Sentence Entered November 6, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000682-2017
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MAY 21, 2020
Appellant, Steven James Keeno, appeals from the judgment of
sentence of the remainder of his original sentence of four to sixty months of
confinement imposed after the revocation of his parole for failure to pay
court-ordered costs, fees, and fines, inter alia. Appellant challenges whether
the trial court erred by revoking his parole without making a finding of fact
that he had the financial ability to pay these obligations. As we agree that
the trial court erred, we vacate the judgment of sentence below and remand
for a new hearing at which the trial court must render appropriate findings
on Appellant’s financial ability to pay outstanding costs, fees, and fines.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On October 5, 2017, Appellant pleaded guilty to driving under the
influence (“DUI”) of a controlled substance. 1 On November 21, 2017, he
was sentenced to four to sixty months of confinement and ordered to pay
costs, fees, and fines. He was paroled on December 28, 2017.
On November 6, 2019, the trial court held a violation of parole
hearing. Appellant “apparently admitted . . . methamphetamine use after he
was advised that he had tested positive for that substance” and “was not
making an effort to report to the Adult Probation/Parole Department.” Trial
Court Opinion, dated December 18, 2019, at 2. “Finally, he admitted the
technical violation that he still owed a balance of $2,576.00 for fines, costs
and related fees”; no evidence was presented as to Appellant’s ability to pay
his financial obligations. Id. “Based on all of that, th[e trial c]ourt
concluded that his technical violations warranted revocation of his parole[.]”
Id.
____________________________________________
1 75 Pa.C.S. § 3802(d)(1)(iii) (metabolite of a substance). Appellant also
pleaded guilty to and was sentenced for driving while operating privilege is
suspended or revoked (“DWOPS”). Id. at § 1543(b)(1). The sentencing
order explicitly stated that his 90-day sentence of confinement for DWOPS
was to be completed before his sentence for DUI began. Accordingly,
Appellant’s current judgment of sentence following the revocation of his
parole arises from his DUI conviction only.
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Appellant did not file any post-sentence motions. On November 25,
2019, Appellant filed this timely direct appeal.2
Appellant presents the following issue for our review:
Did the trial court err as a matter of law when it revoked
Appellant’s parole and recommitted him to total confinement,
under circumstances where parole remained a viable means of
rehabilitating Appellant and deterring future antisocial conduct;
and did the trial court abuse its discretion in its factual findings
at Appellant’s [revocation of parole] hearing by giving unfair,
undue weight to the unsworn testimony of the probation officer
who failed to provide sufficient evidence to contradict Appellant’s
sworn testimony?
Appellant’s Brief at 4.
Preliminarily, we note that the Commonwealth has requested that this
Court dismiss the current appeal, “because the issue regarding the
discretionary aspects of [Appellant’s] sentence was not properly preserved
at sentencing or in a motion to reconsider and modify sentence.”
Commonwealth’s Brief at 5. However --
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. . . . Therefore, the
purposes of a court’s parole-revocation hearing—the revocation
court’s tasks—are to determine whether the parolee violated
parole and, if so, whether parole remains a viable means of
rehabilitating the defendant and deterring future antisocial
conduct, or whether revocation, and thus recommitment, are in
order. . . . Following parole revocation and recommitment, the
proper issue on appeal is whether the revocation court erred, as
____________________________________________
2 Appellant filed his statement of errors complained of on appeal on
December 12, 2019. The trial court entered its opinion on December 18,
2019.
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a matter of law, in deciding to revoke parole and, therefore, to
recommit the defendant to confinement. Accordingly, an
appeal of a parole revocation is not an appeal of the
discretionary aspects of sentence.
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(citation omitted) (emphasis added). As Appellant’s appeal of his parole
revocation was not an appeal of the discretionary aspects of his sentence, he
did not need to engage in the multi-part procedure that would have been
required to preserve a challenge to the discretionary aspects of his sentence.
See Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super.
2018) (citing Pa.R.A.P. 902 and 903; Pa.R.Crim.P. 720; Pa.R.A.P. 2119(f);
42 Pa.C.S. § 9781(b)).
Turning to Appellant’s arguments, he contends that “the
Commonwealth has failed to show that parole does not remain a viable
means of rehabilitating him and deterring future antisocial conduct.”
Appellant’s Brief at 7. He continues that this Court should order a new
parole revocation hearing, because the trial court “did not inquire into [his]
ability to pay, the reasons for his failure to pay, [and] whether his failure to
pay was willful[.]” Id. at 7-8.
Before an offender can be confined . . . for nonpayment of
financial obligations he or she must be given an opportunity to
establish inability to pay. . . . Thus, if an offender defaults in the
payment of a fine or court costs after imposition of sentence, the
fines and costs court may conduct a hearing to ascertain
information regarding an offender’s financial resources. 42
Pa.C.S. § 9730(b)(1). . . . [I]f an offender is notified that he or
she is charged with . . . parole violations as a result of failure to
pay fines, costs or restitution, the offender should be afforded a
hearing.
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Commonwealth v. Diaz, 191 A.3d 850, 865 (Pa. Super. 2018) (emphasis
omitted) (some citations omitted).
Accordingly, the trial court in the current action erred by not giving
Appellant an opportunity to establish his inability to pay his court-ordered
financial obligations. Id. Ergo, we vacate Appellant’s judgment of sentence
and remand for a new hearing at which the trial court must render
appropriate findings on Appellant’s financial ability to pay outstanding costs,
fees, and fines.
Furthermore, Appellant’s nonpayment of financial obligations was one
of three reasons articulated by the trial court for revoking his parole. Trial
Court Opinion, dated December 18, 2019, at 2. Consequently, after the trial
court determines whether Appellant was able or unable to pay his financial
obligations, it must then re-evaluate its decision to revoke Appellant’s parole
– e.g., if the court concludes that Appellant did not have sufficient financial
resources, it must then analyze whether the other two violations that it
found were enough in combination to support revocation of Appellant’s
parole.
While we would normally include a date by which the hearing must
occur, we are reluctant to issue a specific timeline given the coronavirus
disease 2019 (“COVID-19”) pandemic. Instead, we relinquish jurisdiction at
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this time, and we direct the court and the parties to comply with the
standard timing requirements as much as possible.3
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2020
____________________________________________
3 Having vacated the judgment of sentence on this argument, Appellant’s
Brief at 7-8, we need not address his remaining arguments, as they could
become moot depending on the outcome of the hearing on remand. See
Commonwealth v. Sodomsky, 137 A.3d 620, 629 (Pa. Super. 2016).
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