Com. v. Baizar, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES WILLIAM BAIZAR :
:
Appellant : No. 449 WDA 2020
Appeal from the Judgment of Sentence Entered February 25, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001016-2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 30, 2021
Charles William Baizar (Appellant) appeals from the judgment of
sentence imposed in the Court of Common Pleas of Erie County (sentencing
court) after he entered a guilty plea to criminal conspiracy of possession with
intent to deliver (PWID) heroin.1 We vacate Appellant’s judgment of sentence,
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30). Upon entry of Appellant’s plea,
charges of possession of a controlled substance (35 P.S. § 780-113(a)(16))
and of drug paraphernalia (35 P.S. § 780-113(a)(32)) were dismissed. We
note that there is some confusion as to the controlled substance in question,
as the Commonwealth refers to cocaine; see Commonwealth’s Brief at 4.
However, the plea transcript confirms that the substance in question is heroin;
see N.T. Plea, 12/10/19, at 7. Appellant entered a plea to PWID in the range
of 100 to 1000 grams. See N.T. Sentencing, 2/25/20, at 9. The burden to
pay lab fees is shared by codefendants Jermaine Belgrave and Sheldon
Morales, as imposition was joint and several; Appellant’s Brief at 4.
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remand the case for 30 days for proceedings consistent with this
memorandum, and retain jurisdiction.
Appellant brings a single challenge:
Did the trial court err when it ordered Appellant, who had been
solely convicted of conspiracy to distribute heroin, to pay all of the
lab fees requested by the Commonwealth at sentencing where
some of these fees did not stem from this particular conviction,
thereby violating 42 Pa.C.S.[ ] § 1725.3 and the United States
Supreme Court’s holding in Nelson v. Colorado, 137 S.Ct. 1249(2017)?
Appellant’s Brief at 7.2
At Appellant’s plea hearing, he entered a plea acknowledging the
following, as stated by the Commonwealth:
I’m now going to go over what the Commonwealth alleges that
you did.
On February 7th of 2019, you did, with the intent of promoting
the commission of the crime of delivery of a controlled substance,
did agree with Jermaine Belgrave, Morales and others known or
unknown, to engage in conduct which constitutes an attempt or
solicitation to commit a crime.
Specifically, you did attempt to exchange one kilo of heroin in
exchange for $80,000. Heroin is a Schedule I substance. This
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2 Appellant’s appeal was timely filed, and Appellant and the trial court both
complied with Pa.R.A.P. 1925; these filings were made in the spring of 2020,
when the entire state was under an extension order from our Supreme Court
in response to the COVID-19 pandemic. See In re Gen. Statewide Judicial
Emergency, 229 A.3d 229, 230 (Pa. April 1, 2020) (“any legal papers or
pleadings which are required to be filed between March 19, 2020, and April
30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May
1, 2020, or on a later date as permitted by the appellate or local court in
question”). Thus, Appellant’s Notice of Appeal, docketed with the sentencing
court on March 30, 2020, must be considered timely filed.
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occurred at the Courtyard Marriott, Sassafras Pier here in Erie,
thereby you did commit the crime of criminal conspiracy, delivery,
a felony.
N.T. Plea Hr’g at 7-8.
The trial court points out that Appellant did not object to the imposition
of joint and several liability with his codefendants for the $10,229 lab fee.
Trial Ct. Op., 6/23/20, at 1. Appellant frames this as a non-waivable challenge
to the legality of sentence, and acknowledges that the issue was raised initially
in Appellant’s statement per Pa.R.A.P. 1925(b).3 Appellant’s Brief at 11.
Thus, our first inquiry must be whether this Court has jurisdiction to hear this
appeal. If this is a legality of sentence issue, then jurisdiction lies;4 if it is not,
then the issue is waived for failure to object at the time joint and several
liability for the lab fee was imposed.
Appellant cites Commonwealth v. Garzone, 993 A.2d 306 (Pa. Super.
2010) in support of his jurisdictional argument. Appellant’s Brief at 12.
Garzone involved a claim that imposition of grand jury costs and costs arising
from the salaries of prosecutors should not have been imposed as part and
parcel of the appellant’s sentence; “we note that, inasmuch as Appellant’s
argument is premised upon a claim that the trial court did not have the
authority to impose the costs at issue, Appellant has presented a legality of
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3 Appellant filed a post-sentence motion seeking a downward adjustment to
the length of his sentence, but did not seek review of costs imposed.
Appellant’s Brief at 9.
4 See Commonwealth v. Hill, 238 A.3d 399, 409 (Pa. 2020) (where
challenge implicates legality of sentence, it is non-waivable).
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sentencing claim.” Garzone, 993 A.2d at 316. “[A] determination that a
claim implicates the legality of a sentence ... operates to revive a claim
otherwise insufficiently preserved below[.]” Commonwealth v. Weir, 239
A.3d 25, 34 (Pa. 2020) (citations omitted) (challenge to restitution award
sounds in discretionary aspects of sentence and must be properly preserved).
“Where such a challenge is directed to the trial court’s authority to impose
restitution, it concerns the legality of the sentence; however, where the
challenge is premised upon a claim that the restitution order is excessive, it
involves a discretionary aspect of sentencing.” In re M.W., 725 A.2d 729,
731 n.4 (Pa. 1999).
Therefore, to the extent that Appellant is claiming merely that the
portion of his sentence imposing laboratory costs is excessive, it is not
properly preserved. However, to the extent Appellant claims that the trial
court lacked authority to impose the testing amounts, his challenge sounds in
legality of, rather than the discretionary aspects of, his sentence. It is well-
established that “[i]f no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.” Commonwealth
v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). “Issues
relating to the legality of a sentence are questions of law[.] ... Our standard
of review over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016), aff’d sub
nom. Commonwealth v. Aikens, 168 A.3d 137 (Pa. 2017).
Section 1725.3 of the Judicial Code states, in relevant part:
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(a) Imposition.--A person who is placed on probation without
verdict pursuant to section 17 of the act of April 14, 1972 (P.L.
233, No. 64),1 known as The Controlled Substance, Drug,
Device and Cosmetic Act, or who receives Accelerated
Rehabilitative Disposition or who pleads guilty to or nolo
contendere to or who is convicted of a crime as defined in 18
Pa.C.S. § 106 (relating to classes of offenses) or 75 Pa.C.S. §
1543(b)(1.1) (relating to driving while operating privilege is
suspended or revoked) or 3802 (relating to driving under
influence of alcohol or controlled substance) or 3735 (relating
to homicide by vehicle while driving under influence) or 3735.1
(relating to aggravated assault while driving under the
influence) or 3808(a)(2) (relating to illegally operating a motor
vehicle not equipped with ignition interlock) or a violation of
The Controlled Substance, Drug, Device and Cosmetic Act
shall, in addition to any fines, penalties or costs, in every case
where laboratory services were required to prosecute the
crime or violation, be sentenced to pay a criminal laboratory
or paramedic user fee which shall include, but not be limited
to, the cost of sending a laboratory technician or paramedic to
court proceedings.
(b) Amount of user fee.—
...
(2) If a Pennsylvania State Police laboratory has provided
services in the prosecution, the director or similar officer of the
Pennsylvania State Police laboratory shall determine the actual
cost of the laboratory services provided in the prosecution and
transmit a statement for services rendered to the court.
42 Pa.C.S. § 1725.3(a), (b)(2).
Appellant argues that “[t]he plain language of this statute requires an
individual, convicted of a violation of the Drug Act, to pay the lab fee required
to prosecute that particular violation. Further, the State Police lab is required
to submit a report of the actual cost associated with the lab services provided
in that prosecution.” Appellant’s Brief at 13. Appellant also cites Nelson, for
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the proposition that “absent conviction, the courts have no legal right to exact
or retain the funds paid by a defendant toward costs, fees, and restitution.”
Appellant’s Brief at 13-14, citing Nelson, 137 S.Ct. at 1255-56. He
acknowledges that Nelson involved cases wherein defendants’ convictions
were subsequently overturned, and those defendants sought return of monies
already paid. Appellant’s Brief at 14. He also cites Commonwealth v.
Smith, 361 A.2d 881 (Pa. Super. 1976), in which this Court held that a
defendant who is acquitted of a felony, but convicted of a misdemeanor,
“cannot be ordered to pay the costs of prosecuting the felony charge because
he was acquitted.” Smith, 361 A.2d at 883; Appellant’s Brief at 14, 17. “The
question becomes, therefore, what portion of the costs were necessary to
convict appellant on the misdemeanor charge.” Id.
At sentencing, the Commonwealth gave the following numbers: “427,
580, 1,444, 274, 7,145, 246, and 113. We’d ask for those lab fees.” N.T.
Sentencing at 10. Our review of the record reveals that those numbers
correspond as described below. First, a Laboratory User Fee Statement
(statement) for $427 for AFIS latent print entry and comparison and an
administrative handling fee; this fee pertains to Appellant and codefendants
Jermaine Belgrave and Sheldon Morales, as well as an additional suspect
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named Eduardo Santana.5 Second, a statement for $580 pertaining to a case
of attempted homicide, with an administrative handling fee and a firearm
functionality test with discharged bullet and cartridge case comparison.6
Third, a statement for $1,444, with an administrative handling fee and
bloodstain identification and DNA sample preparation. Fourth, a statement
for $274, with an administrative handling fee and NIBIN Entry/Analysis, which
appears to pertain to certain ballistics analysis conducted with the National
Integrated Ballistic Information Network. Fifth, a statement for $7,145 with
an administrative handling fee and DNA analysis that appears to involve
samples taken from a parking garage and a handgun and rounds found
therein, with a few other miscellaneous sample sources such as coffee lids.
Sixth, a statement for $246, with the administrative handling fee and a
cartridge case comparison. Seventh, a statement for $113 with the
administrative handling fee and a line item for drug analysis.
Thus, we are not presented with an instance where the Commonwealth
recovered several substances that could have been drugs and needed to
conduct testing on all the substances to sort the wheat from the chaff. Rather,
it appears that Appellant has been saddled with lab fees having to do with
crimes with which he was never charged, and in applying Section 1725.3, we
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5 The statements are appended to Appellant’s presentence investigation
report; see Presentence Investigation Report, Charles William Baizar Jr.,
undated.
6This statement likewise lists the names of Appellant, his codefendants, and
suspect Santana, as do all the statements at issue.
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must ask: how were these lab services “required to prosecute the crime or
violation” to which Appellant entered a plea? See 42 Pa.C.S. § 1725.3(a).
Appellant asks that this Court vacate his judgment of sentence (but not
his plea) and remand for the Commonwealth to file an itemized lab fee report
delineating the costs associated with Appellant’s conviction. Appellant’s Brief
at 18. The Commonwealth opposes this and argues that “[g]iven that
Appellant pled guilty to an inchoate crime involving a violation of the Drug,
Device and Cosmetic Act, Appellant was thus plainly aware of their causal
connection to the cases of both [codefendants] Belgrave and Morales, and
such awareness satisfies any obligation the Commonwealth ostensibly has
under either 61 P.S. 1403[7] or Commonwealth v. Moran, 675 A.2d 12[6]9
(Pa. Super. 1996)” (holding that defendant could not be required to pay
district attorney’s expenses incurred on charge of which defendant was
acquitted). Commonwealth’s Brief at 6.
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7 All necessary expenses incurred by the district attorney or the
district attorney’s assistants or any officer directed by the district
attorney in the investigation of crime and the apprehension and
prosecution of persons charged with or suspected of the
commission of crime, upon approval thereof by the district
attorney and the court, shall be paid by the county from the
general funds of the county. In any case where a defendant is
convicted and sentenced to pay the costs of prosecution and trial,
the expenses of the district attorney in connection with such
prosecution shall be considered a part of the costs of the case and
be paid by the defendant.
16 P.S. § 1403.
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Nelson confirms that at a certain level, dissonance between costs
imposed and the scope of an appellant’s conviction implicates due process.
See Nelson, 137 S.Ct. at 1252 (“Absent conviction of a crime, one is
presumed innocent . . . [a scheme forcing parties whose convictions have been
vacated to prove innocence prior to refunding costs] offends the Fourteenth
Amendment’s guarantee of due process.” Plainly, it cannot be within a
sentencing court’s discretion (or, indeed, any court’s discretion) to offend the
federal constitution. Therefore, if we find that the joint and several imposition
of costs that are not causally related to any charge of which Appellant has
been convicted exceeded the sentencing judge’s authority, then the issue is
not capable of succumbing to waiver.
We are persuaded that Appellant’s argument sounds in the sentencing
court’s authority rather than the way it exercised that authority, and therefore
under Garzone, the issue is not subject to waiver. Based on the record before
us and the relative brevity of the Commonwealth’s Brief and the sentencing
court’s opinion, we cannot determine whether these laboratory fees were
within the sentencing court’s authority to impose and therefore compliant with
Appellant’s due process rights under Nelson and Smith. Therefore, we
remand to give the Commonwealth and the sentencing court an opportunity
to complete the record for our review.
Judgment of sentence vacated; case remanded for 30 days for
proceedings consistent with this memorandum; jurisdiction retained.
Judge Colins joins the memorandum.
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Judge Bowes files a dissenting memorandum.
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