Com. v. Spada, Z. ( 2023 )

J-S17041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZACHARY THOMAS SPADA :
:
Appellant : No. 55 WDA 2023
Appeal from the PCRA Order Entered December 21, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002927-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZACHARY THOMAS SPADA :
:
Appellant : No. 56 WDA 2023
Appeal from the PCRA Order Entered December 21, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002926-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ZACHARY THOMAS SPADA :
:
Appellant : No. 57 WDA 2023
Appeal from the PCRA Order Entered December 21, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002928-2018
J-S17041-23
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: November 2, 2023
Appellant, Zachary Thomas Spada, appeals from the order entered in
the Erie County Court of Common Pleas, which denied his motion for
modification of probation. We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history of this appeal as follows:
On July 3, 2019, [Appellant] entered negotiated guilty pleas
at [four] dockets to various crimes, including kidnapping
and aggravated assault by a prisoner.[1] On August 21,
2019, the trial court sentenced him to an aggregate term of
two to five years of incarceration and a consecutive two-
year probationary term. [Appellant] did not file an appeal.
On April 23, 2020, [Appellant] filed a pro se petition for
transcripts and in forma pauperis status at each docket. On
May 4, 2020, the trial court denied the petition. On May 11,
2020, he filed a pro se notice of appeal in which he
challenged the court’s denial of transcripts, but later
withdrew it.
On June 3, 2020, [Appellant] filed a pro se “Motion to Alter
Sentencing Order Due to Economic Hardship,” in which he
requested [to pay the remainder of court costs upon his
release on parole]. The trial court transferred this petition
to the Commonwealth Court for disposition. On July 27,
2020, [Appellant] filed a “Motion to Amend/Reconsider
Sentencing Order Nunc Pro Tunc.” The trial court denied
this motion on July 31, 2020.
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1 The sentence at one of the trial court dockets, No. 2902 of 2018, is not at
issue in the current appeal. At No. 2902 of 2018, the court imposed a term
of imprisonment for Appellant’s guilty plea to kidnapping. At the remaining
dockets, the court imposed probationary sentences, which we address infra.
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On June 16, 2021, nearly two years after he was sentenced,
[Appellant] filed a pro se PCRA petition, in which he raised
various claims of ineffective assistance based upon his
mental health status. The PCRA court appointed counsel.
On September 10, 2021, PCRA counsel filed a supplemental
PCRA.
On October 7, 2021, the PCRA court issued Pa.R.Crim.P. 907
notice of its intent to dismiss [Appellant’s] PCRA petition
without a hearing because it was untimely filed. [Appellant]
filed a pro se response. By order entered November 9,
2021, the PCRA court dismissed [Appellant’s] petition. On
December 6, 2021, PCRA counsel filed a notice of appeal at
each docket.
* * *
On December 13, 2021, PCRA counsel wrote to the [PCRA
court] requesting that a Grazier[2] hearing be scheduled.
On December 28, 2021, the court held a Grazier hearing
during which [Appellant] advised he wanted to waive the
right to counsel. The court determined [Appellant’s] waiver
of counsel was knowing, voluntary and intelligent, and
permitted [Appellant] to proceed pro se.
Commonwealth v. Spada, Nos. 1465, 1466, 1467, and 1468 WDA 2021,
unpublished memorandum at 2-3 (Pa.Super. filed March 31, 2023) (internal
record citations and footnote omitted).
On December 20, 2022, while the appeal of the PCRA order remained
pending, Appellant filed a pro se motion for modification of probation at the
three docket numbers where the court imposed probationary sentences.3 In
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2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
3 Generally, a trial court may no longer consider a matter after an appeal is
taken. See Pa.R.A.P. 1701(a). Nevertheless, we observe that a “court has
(Footnote Continued Next Page)
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his motion, Appellant claimed that the “August 21, 2019 sentencing orders
[provide] that [Appellant] is to pay costs as a condition of the aggregate 2-
year probationary sentence.” (Motion, filed 12/20/22, at ¶4). Appellant
insisted, however, that 42 Pa.C.S.A. § 9754 (governing probation orders)
“does not authorize the imposition of court costs as a condition of probation.”
(Id.) (citing Commonwealth v. Hudson, 231 A.3d 974, 981 (Pa.Super.
2020)). Consequently, Appellant requested that the court “modify the order
of probation, as it is permitted to do at any time, and remove the language
that [Appellant] is ordered to pay costs.” (Id. at ¶6).
The court denied Appellant’s motion on December 21, 2022. Appellant
timely filed a pro se notice of appeal on January 9, 2023. On January 23,
2023, Appellant voluntarily filed a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal.4
Appellant now raises three issues for this Court’s review:
Can the denial of relief stand where a motion filed under 42
Pa.C.S. § 9771(a) to modify a patently illegal sentence is
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inherent power to at any time terminate continued supervision [or] lessen
the conditions upon which an order of probation has been imposed….” 42
Pa.C.S.A. § 9771(a) (emphasis added). Because a court possesses the power
to lessen the conditions of probation “at any time,” we conclude that Appellant
properly filed his motion seeking to invoke the court’s power. See id. See
also Commonwealth v. Nicely, 536 Pa. 144, 152, 638 A.2d 213, 217 (1994)
(stating trial court possessed jurisdiction to modify defendants’ probation
conditions; probation order is conditional by its very nature; as such, court
may lessen or increase conditions of probation at any time).
4 This Court subsequently affirmed the order denying PCRA relief on March 31,
2023. See Spada, supra.
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summarily denied by the [trial] court despite the
requirement that illegal sentences must be vacated?
Does the [trial] court misapply the law when it fails to
correct its own errors by failing to modify illegal sentences
despite having the jurisdiction to do so under 42 Pa.C.S. §
9771(a)?
Does the [trial] court abuse its discretion when it fails to
correct patently illegal sentences despite having the
jurisdiction to do so?
(Appellant’s Brief at 4).
Despite raising three discrete issues in his statement of questions
involved, Appellant consolidates these claims in the argument section of his
brief. Therein, Appellant reiterates the assertion made in his motion for
modification of probation: there is no statutory authorization for the
imposition of court costs as a condition of probation. On this basis, Appellant
insists that the trial court erred by ordering him to pay court costs as part of
the probationary sentences. Appellant concludes that this Court must vacate
the judgments of sentence and remand the matter for the court to correct the
purportedly illegal sentences. We disagree.
“The defendant or the Commonwealth may appeal as of right the legality
of the sentence.” 42 Pa.C.S.A. § 9781(a). “As long as the reviewing court
has jurisdiction, a challenge to the legality of the sentence is non-waivable
and the court can even raise and address it sua sponte.” Commonwealth v.
Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “A challenge to the legality of
sentence is a question of law; our standard of review is de novo and our scope
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of review is plenary.” Commonwealth v. Alston, 212 A.3d 526, 528
(Pa.Super. 2019).
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence
is illegal and subject to correction. An illegal sentence must
be vacated. Likewise, a sentence that exceeds the statutory
maximum is illegal. If a court imposes a sentence outside
of the legal parameters prescribed by the applicable statute,
the sentence is illegal and should be remanded for
correction.
Infante, supra at 363 (internal citations and quotation marks omitted).
The Sentencing Code provides for the mandatory payment of costs as
follows:
§ 9721. Sentencing generally
* * *
(c.1) Mandatory payment of costs.—Notwithstanding
the provisions of section 9728 (relating to collection of
restitution, reparation, fees, costs, fines and penalties) or
any provision of law to the contrary, in addition to the
alternatives set forth in subsection (a), the court shall order
the defendant to pay costs. In the event the court fails to
issue an order for costs pursuant to section 9728, costs shall
be imposed upon the defendant under this section. No court
order shall be necessary for the defendant to incur liability
for costs under this section. The provisions of this
subsection do not alter the court’s discretion under
Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
42 Pa.C.S.A. § 9721(c.1).
“Often following a criminal conviction, the trial court places a monetary
imposition on the defendant.” Commonwealth v. Rivera, 95 A.3d 913, 916
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(Pa.Super. 2014) (quoting Commonwealth v. Wall, 867 A.2d 578, 583
(Pa.Super. 2005)).
Unlike restitution imposed under 42 Pa.C.S. §§ 1106,
9721(c), and unlike fines, which are both part of a
defendant’s sentence, 42 Pa.C.S. § 9726(a), (b)(1)-(2), “a
direction to pay costs in a criminal proceeding is not part of
the sentence, but is an incident of the judgment. Costs do
not form a part of the penalty imposed by the statutes
providing for the punishment of criminal offenses[.]”
[Commonwealth v. Soudani, 165 A.2d 709, 711
(Pa.Super. 1960)].
Commonwealth v. Mulkin, 228 A.3d 913, 919 (Pa.Super. 2020) (internal
citations and quotation marks omitted). “Costs are a reimbursement to the
government for the expenses associated with the criminal prosecution.”
Rivera, supra at 916.
Instantly, the record contains each of the relevant sentencing orders.
All three orders are formatted in the same manner. First, the orders list the
count for which the court sentenced Appellant, followed by the length of the
probationary term for that count. Next, the orders provide the “linked
sentences” that Appellant received at the related docket numbers. Following
the “linked sentences,” each order states: “The defendant is to pay costs.”
(Orders at Nos. 2926, 2927, and 2928 of 2018, filed 8/21/19) (emphasis in
original).
Thereafter, the orders contain a separate section setting forth the
conditions of Appellant’s probation:
Conditions of Supervision: The defendant shall pay
supervision fees/administrative fees/costs per
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month/payment plan and comply with all rules and
conditions of probation, parole, or intermediate
punishment as set forth in any contract of supervision and
any other conditions as the court may impose.[5]
(Id.) (emphasis in original).
Contrary to Appellant’s assertions, our review of the sentencing orders
reveals that the payment of court costs was not a condition of probation.
Rather, the court properly imposed costs as “an incident of the judgment,”
while devoting separate sections of the orders to the actual probation
conditions. See Mulkin, supra. See also Commonwealth v. Deshong,
850 A.2d 712 (Pa.Super. 2004) (evaluating totality of sentencing order and
concluding that restitution was part of “direct sentence,” rather than condition
of probation; conditions of probation were on first page of order; conditions
did not specifically include restitution, which court could have easily added to
conditions of probation section; additionally, judge did not say restitution was
condition of probation). Under these circumstances, Appellant’s reliance on
Hudson, supra is misplaced. Cf. Hudson, supra (concluding court costs are
not authorized as condition of probation; therefore, court should not have
found appellant in technical violation of probation for failing to pay court
costs). Because statutory authorization exists to support the sentence
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5 “In addition to costs, a court can impose, as a condition of supervision, a
monthly fee for administrative expenses attendant to offender supervision
programs.” Commonwealth v. White, 251 A.3d 1274, 1276-77 (Pa.Super.
2021), appeal denied, ___ Pa. ___, 284 A.3d 868 (2022).
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imposed, we conclude that Appellant’s sentence is legal. See Infante,
supra; 42 Pa.C.S.A. § 9721(c.1). Accordingly, we affirm the order denying
Appellant’s motion for modification of probation.
Order affirmed.
11/2/2023
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