Com. v. Kokinda, J. ( 2017 )

J-S34039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON KOKINDA,
Appellant No. 3667 EDA 2016
Appeal from the Order October 31, 2016
in the Court of Common Pleas of Lehigh County
Criminal Division at Nos.: CP-39-CR-0004541-2007
CP-39-MD-0005250-2008
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 06, 2017
Appellant, Jason Kokinda, appeals pro se from the order of October 31,
2016, which denied his pro se Petition to Waive Fees or Suspend Collections.
We affirm, albeit for reasons different from those expressed by the trial
court.1
We take the underlying facts and procedural history in this matter
from this Court’s decision affirming the denial of Appellant’s petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546, and our independent review of the certified record.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
“[W]e are not limited by the trial court’s rationale and that we may affirm
on any basis.” Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super.
2002), appeal denied, 828 A.2d 349 (Pa. 2003) (citations omitted).
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On November 12, 2009, [Appellant] entered a plea of
[g]uilty but [m]entally [i]ll to four counts of unlawful contact
with a minor and one count of criminal use of a communication
facility, after he engaged in online sexual communications with
an individual whom he believed was a [twelve]-year-[old] minor,
but was actually an undercover agent with the Attorney
General’s Office. Following a hearing on February 17, 2010, the
trial court determined that [Appellant] was severely mentally
disabled; specifically, a paranoid schizophrenic. Thereafter, the
court sentenced [Appellant] to [not less than thirty-six nor more
than eighty-four] months’ incarceration. [Appellant did not file a
direct appeal].
[Appellant] filed a pro se PCRA petition on February 22,
2011. Following an oral and written colloquy, the PCRA court
permitted [Appellant] to proceed pro se and appointed stand-by
counsel to assist in the PCRA proceedings. Following a hearing
on September 6, 2012, the PCRA [court] denied [Appellant’s]
petition. . . .
(Commonwealth v. Kokinda, No. 2687 EDA 2012, unpublished
memorandum at **1-2 (Pa. Super. filed Dec. 13, 2013)). This Court
affirmed the denial of Appellant’s PCRA petition on December 13, 2013.
(See id. at *3). Appellant subsequently filed an application to reinstate his
appeal and sought leave to appeal the denial of that application to the
Pennsylvania Supreme Court.
On October 28, 2016, Appellant, who is no longer incarcerated and
lives out-of-state, filed a pro se Petition to Waive Fees or Suspend
Collections. In the motion, Appellant states that he was wrongly assessed
$626.51 in court fees. (See Petition to Waive Fees or Suspend Collections,
10/28/16, at 1). He complains that he was “harassed” by a collection
agency and is unable either to pay the monies or meaningfully dispute the
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matter because of his poverty and out-of-state residence. (Id. at 2-5). On
October 31, 2016, the trial court denied the motion. The instant, timely
appeal followed. On December 12, 2016, the trial court ordered Appellant to
file a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). Appellant filed a timely Rule 1925(b) statement on December 28,
2016. See id. On January 13, 2017, the trial court issued an opinion. See
Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following issue for our review.
1. Why is [the trial court] unable to construe . . . [Pennsylvania
Rule of Criminal Procedure] 706 . . . pragmatically, pursuant
to [Pennsylvania Rule of Criminal Procedure] 101; in a
manner that comports with civil rights?
(Appellant’s Brief, at 4) (unnecessary underlining omitted).
Appellant challenges the trial court’s finding that he is statutorily
required to pay fees and costs. We note that interpreting the meaning of a
statute raises a pure question of law, therefore our standard of review is de
novo and our scope of review is plenary. See Commonwealth v. Burwell,
58 A.3d 790, 793 (Pa. Super. 2012), appeal denied, 69 A.3d 242 (Pa. 2013).
Initially, we observe that it appears that Appellant’s petition is based
on his erroneous belief that the decision of the trial court not to impose any
fines at sentencing meant that Appellant was not responsible to pay any fees
and costs. (See Petition to Waive Fees or Suspend Collections, at 1;
Appellant’s Brief, at 6). The record clearly demonstrates that while the trial
court did not order the payment of fines, it did order the payment of fees
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and costs. (See N.T. Sentencing, 2/17/10, at 112, 114, at 112; Lehigh
County Sentence Sheets, 2/17/10, at unnumbered pages 1-5). Appellant
did not object to the sentence and, when questioned, stated that he
understood it. (See N.T. Sentencing, at 119). Appellant did not file a post-
sentence motion for reconsideration and did not file a direct appeal
challenging his sentence. Thus, Appellant waived any challenge to the
judgment of sentence and the order directing payment of costs is a valid
aspect of his sentence.2 See Commonwealth v. McAfee, 849 A.2d 270,
275 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004).3
Appellant next argues that the trial court erred by not affording him
relief under Pennsylvania Rule of Criminal Procedure 706. (See Appellant’s
Brief, at 11-12). Rule 706 provides:
(A) A court shall not commit the defendant to prison for failure
to pay a fine or costs unless it appears after hearing that the
defendant is financially able to pay the fine or costs.
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2
As the Commonwealth correctly states, (see Commonwealth’s Brief, at 6-
7), the trial court’s reliance, (see Trial Court Opinion, 1/13/17, at 3-4), on
42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2) is misplaced because these
statutes were not in effect at the time of Appellant’s sentencing. See An Act
Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania
Consolidated Statutes, No. 2010-96, P.L. 949, § 3 (October 27, 2010).
3
We note that Appellant does not appear to challenge the legality of the
sentence. (See Petition to Waive Fees or Suspend Collections, 10/28/16, at
1-5). In any event, any such challenge would have needed to be raised in a
timely PCRA petition. See Commonwealth v. Guthrie, 749 A.2d 502, 503
(Pa. Super. 2000) (holding motion to correct illegal sentence must be
treated as PCRA petition where appellant did not file timely post-sentence
motions or direct appeal).
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(B) When the court determines, after hearing, that the
defendant is without the financial means to pay the fine or costs
immediately or in a single remittance, the court may provide for
payment of the fines or costs in such installments and over such
period of time as it deems to be just and practicable, taking into
account the financial resources of the defendant and the nature
of the burden its payments will impose, as set forth in paragraph
(D) below.
(C) The court, in determining the amount and method of
payment of a fine or costs shall, insofar as is just and
practicable, consider the burden upon the defendant by reason
of the defendant’s financial means, including the defendant’s
ability to make restitution or reparations.
(D) In cases in which the court has ordered payment of a fine or
costs in installments, the defendant may request a rehearing on
the payment schedule when the defendant is in default of a
payment or when the defendant advises the court that such
default is imminent. At such hearing, the burden shall be on the
defendant to prove that his or her financial condition has
deteriorated to the extent that the defendant is without the
means to meet the payment schedule. Thereupon the court may
extend or accelerate the payment schedule or leave it unaltered,
as the court finds to be just and practicable under the
circumstances of record. When there has been default and the
court finds the defendant is not indigent, the court may impose
imprisonment as provided by law for nonpayment.
Comment: See generally Commonwealth ex rel.
Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158(1973).
Under this rule, when a defendant fails to pay the
fine and costs, the common pleas court judge may
issue a bench warrant for the collection of the fine
and costs. When a “failure to pay” bench warrant is
issued, the bench warrant must be executed by a
police officer following the procedures set forth in
Rule 431(C)(1)(c) and (C)(2), or, if the defendant is
unable to pay, the police officer must proceed as
provided in Rule 150 (Bench Warrants).
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Nothing in this rule is intended to abridge any rights
the Commonwealth may have in a civil proceeding to
collect a fine or costs.
Pa.R.Crim.P. 706.
However, Appellant’s complaints are premature. At most, in his
petition, Appellant indicates that Lehigh County is attempting to collect the
debt and that the Lehigh County Bureau of Collections scheduled some type
of hearing. (See Petition to Waive Fees or Suspend Collections, at 2-4). At
no point does Appellant state that the trial court issued a bench warrant or
that Lehigh County has even instituted proceedings to garnish his
supplemental security income. (See id.). If, in fact, such an event does
occur, Appellant may request a hearing pursuant to Rule 706(D). Further,
despite Appellant’s repeated scurrilous attacks on the trial court in his
appellate brief, this Court has no doubt that the court will afford Appellant all
due process protections required under Rule 706. (See generally
Appellant’s Brief, at 9-17).
Thus, we find, for the reasons discussed above, that Appellant has
waived any attack on the imposition of fees and costs as part of his
sentence. Further, his claim that the trial court violated his due process
rights and failed to comply with Pa.R.Crim.P. 706 is premature. Accordingly,
we affirm the denial of Appellant’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2017
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