Com. v. Harbold, N. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMA JEAN HARBOLD :
:
Appellant : No. 1554 MDA 2022
Appeal from the Order Entered October 27, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002090-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: OCTOBER 10, 2023
Norma Jean Harbold appeals from the order entered after the court
determined that she willfully violated the terms of her parole by failing to pay
outstanding court costs and restitution. Harbold argues the court erroneously
found her violation willful when she lacked the ability to pay her court costs
and restitution. We affirm.
In September 2019, Harbold pleaded guilty to theft by deception.1 At
the plea and sentencing hearing, Harbold admitted she had offered to help the
victim, who was going blind, write checks totaling $2,750 to pay her real
estate taxes but made the checks out to herself. The victim testified that her
real property was sold at a public auction for $7,000 because her taxes went
unpaid. See N.T., 9/18/19, at 3-5.
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1 18 Pa.C.S.A. § 3922(a)(1).
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The Commonwealth requested restitution in an amount exceeding
$120,000, based on the tax-assessed value of the property. Id. at 7. Harbold
requested a restitution hearing, claiming that the property is a vacant,
landlocked lot, and not worth the value assigned by the Commonwealth. Id.
at 7, 8. Harbold also questioned why the victim had not appealed the sale of
the property after receiving notification of the appeal period from the tax
bureau. Id. at 12.
The court sentenced Harbold to six months of house arrest and five
years of probation. Id. at 12.2 It ordered Harbold to pay court costs and
$121,650 in restitution. Id. The court scheduled a restitution hearing but the
day before the hearing was to occur, it entered an order modifying the
restitution amount to $12,000 “by agreement of the parties.” Order, 12/4/19,
at 1. Harbold did not appeal her judgment of sentence or the order modifying
her restitution. Harbold later filed a petition under the Post Conviction Relief
Act, which the trial court denied. Harbold did not appeal.
Harbold failed to pay her court costs and restitution, in violation of the
terms of her probation, and in June 2021, the court held a hearing. Harbold
was no longer represented by trial counsel and proceeded pro se. Harbold first
stated she did not intend to make any payments because she wanted a jury
trial. N.T., 6/15/21, at 3-4. She also argued that the restitution amount was
too high because the real property the victim had lost was worthless. Id. at
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2 The written sentencing order in the certified record is unintelligible.
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4-5. Harbold contended that restitution should have only been $2,750,
because “[t]hat’s what [she] plead[ed] guilty to.” Id. at 7. Harbold stated she
would pay a legal advisor “$10,000” to help her contest the restitution amount
before she would make any restitution payments. Id. 14, 15. She also claimed
that she only took the money from the victim to pay for her car repairs, stating
she needed her car to drive the victim places. Id. at 15. The court informed
Harbold that if she does not make payments, she could be put in jail. Id. at
7-8. Harbold agreed to pay the uncontested amount of restitution — $2,750
— within 30 days. Id. at 16.
When she failed to make the payment, the court revoked Harbold’s
probation and resentenced her in September 2021 to a new term of five years’
probation. The court asked Harbold how much she could afford to pay toward
her outstanding balance, and Harbold responded that she was able to pay $75
per month. N.T., 9/27/21, at 5. The court ordered her to pay $2,750 by
November 2021, and $75 per month thereafter. Id. at 6.
Harbold still failed to make any payments. In December 2021, the court
held another hearing. Harbold stated she had not made any payments because
she was waiting for notice that her restitution amount had been changed to
$2,750. She said, “[M]y attorney said you get a statement for the 2750,
otherwise they’re gonna make you pay for that property and I’m not paying
for that property.” N.T., 12/7/21, at 3. The court explained that Harbold was
obligated to pay the total amount of restitution and court costs imposed
following her guilty plea, not just the amount she had acknowledged she had
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stolen. Harbold stated, “I pled guilty to 2750,” and the court responded, “No,
you pled guilty and an amount of restitution was imposed and it was not
appealed. Ultimately, this is going to end up in incarceration.” Id. at 3.
Harbold responded, “Do what you gotta do. I’m not paying for that property.”
Id. at 4. The court found Harbold violated the terms of her probation and
imposed a new sentence of 10 days to six months’ incarceration and a
consecutive four-and-a-half years’ probation. Id. at 15.
Harbold still failed to pay, and in February 2022, the court held yet
another hearing, this time for violation of parole. Harbold continued to argue
that the value of the victim’s property was not worth the full restitution
amount. She stated, “I am objecting to this whole thing.” N.T., 2/18/22, at 4-
5. The court responded,
Since you are going to take an intrenched position that you do not
owe the fines, costs and restitution that you have continued to
take throughout these proceedings, I don’t think I have any
remedies left to me other than incarceration. I mean, you basically
said you’re not going pay what the Court has ordered you to pay
as a result of your theft.
Id. at 5. The court revoked Harbold’s parole and committed her to serve
another 20 days of her prison sentence before eligibility for release. Id. at 8.
Harbold failed to make any payments, and the court scheduled a hearing
for June 21, 2022.3 Harbold failed to appear, and the court issued a bench
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3 The petition for contempt that was the basis for this hearing, and the
corresponding order scheduling June 21, 2022 hearing and instructing Harbold
to appear, are not in the certified record. The docket indicates the order to
appear was served on Harbold’s prior counsel.
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warrant. According to the docket, the warrant was returned on August 18,
2022. The next day, the court vacated the warrant, appointed counsel for
Harbold, and scheduled a hearing. At the hearing, Harbold’s counsel raised
the issue of Harbold’s ability to pay. The court ordered Harbold’s release and
rescheduled the hearing for September 26, 2022.
At the September 26 hearing, Harbold, through counsel, argued that
she lacked the ability to pay her restitution and court costs. An employee of
the Lancaster County Adult Probation and Parole Collections Enforcement Unit,
Victoria Brown, testified. She stated that in preparation for the hearing, she
had met with Harbold to determine her income and expenses. She said
Harbold brought her a statement showing her bank account transactions for
the previous month (August).4 Brown stated she calculated Harbold’s monthly
income at $1,366.59, and her monthly living expenses at $704.85. Brown
testified that Harbold has outstanding debt to York County for another criminal
case, which Brown incorporated into her calculation of Harbold’s monthly
expenses. Brown testified that Harbold has been making regular payments
towards satisfying her debt to York County. Brown stated that in contrast,
Harbold had never made a payment on her debt to Lancaster County.
On cross-examination, Brown testified that she did not know if there
was any public transportation in Harbold’s neighborhood, and stated that she
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4 Brown specified that the document was a transaction report rather than a
bank statement. N.T., 9/26/22, at 7-8. The exhibits introduced into evidence
at the hearing are not included in the certified record.
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had not accounted for Harbold’s outstanding car-repair bill. Brown testified
that she had calculated Harbold’s food budget at $50 per month but admitted
that the transaction summary showed Harbold had spent $58.32 on food
during the prior month. Brown also testified that she had not included any
expenses for Harbold’s cats, her P.O. box, or her laundry, as she could not
verify the amount of these expenses.
Harbold testified that she is 80 years old and lives on social security and
a pension of $104.59 per month. She stated her pension is in jeopardy due to
her former employer’s bankruptcy. Harbold also testified that she has no
public transportation to her house, there is no supermarket within walking
distance, and she is still paying for the most recent repairs to her car. Harbold
said that at the time of the hearing, she had $2.37 in her bank account.
However, when confronted on cross-examination as to why she was
making $65 monthly payments towards her court costs in York County but
nothing toward her outstanding balance in Lancaster County, Harbold testified
that she was not making her payments primarily because she disliked how her
Lancaster County case had been handled:
Q: What makes Lancaster County different than York County?
A: Because I object to the way my case was handled.
Q: In Lancaster County?
A: Yes.
Q: The reason you haven’t paid anything is because you object to
the way your case has been handled?
A: Exactly.
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Q: Okay. It’s not because you don’t have the ability to pay. It’s
because you don’t like the way this all shook out, correct?
A: I don’t have the ability to pay, but that’s second to how this
case was handled.
N.T. 9/26/2022, at 27. On re-direct examination, Harbold reasserted that she
lacks the ability to pay:
Q. When we talk about why you haven’t been paying, it’s been
two things, right: You can’t and you have a problem with the way
your case was handled, right?
A. Correct.
Q. Even if you didn’t have a problem with the way your case was
handled, you still couldn’t make payments?
A. Correct.
Id. at 31.
The court found Harbold willfully violated the terms of her parole. It
revoked her parole and recommitted her to serve an additional three months
of her prison sentence before being released.
Harbold appealed.5 Her sole issue is whether the court erred “when it
found that [she] willingly violated her terms of supervision when she lacked
the ability to pay her court costs and restitution?” Harbold’s Br. at 4.
Harbold argues the court improperly revoked her parole because the
Commonwealth did not prove that she willfully violated the terms of her
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5 The court did not enter the order revoking her parole on the docket until
October 27, 2022. Harbold thereafter filed a Petition for Leave to Appeal Nunc
Pro Tunc, which the court granted. However, as Harbold filed notice of appeal
within 30 days of the court’s entry of the order on the docket, the notice of
appeal was timely. See Commonwealth v. Carter, 122 A.3d 388, 391
(Pa.Super. 2015).
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supervision. Harbold argues that the evidence shows she lives barely above
the federal poverty level, and that Brown’s estimate of her expenses should
have included the costs to maintain her vehicle, as there is no public
transportation in her area. Harbold contends that neither her disappointment
with how her case was handled nor her history of paying her York County fines
negate the fact that she is unable to make payments on the instant case.
The court’s decision to revoke parole is a matter of discretion, which we
will not disturb unless the court abused its discretion or erred in the law.
Commonwealth v. Reed, 285 A.3d 334, 337 (Pa.Super. 2022).
A court may only revoke parole for a failure to pay restitution “if the
failure results from the offender’s inability to pay.” 18 Pa.C.S.A. §
1106(c)(2)(iii). The court must “inquire into the reasons for a defendant’s
failure to pay and to make findings pertaining to the willfulness of the party’s
omission.” Commonwealth v. Eggers, 742 A.2d 174, 175-76 (Pa.Super.
1999). The Commonwealth bears the burden to prove the parole violation by
a preponderance of the evidence. Reed, 285 A.3d at 337.
In coming to its decision to revoke parole, the trial court observed that
Harbold had admitted that her primary reason for failing to make payments
was her dissatisfaction with the resolution of her case. The court further noted
that until the instant hearing, Harbold’s sole explanation for her failure to pay
was her dissatisfaction with the way her case was handled and her
disagreement with the amount of restitution. The court further considered the
income and expense statement Brown had submitted. The court concluded
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that overall, the evidence “demonstrated that [Harbold] intentionally did not
pay her Lancaster Court costs and restitution out of dissatisfaction with the
resolution of her case rather than [her] inability to pay.” Trial Court Opinion,
12/22/22, at 4.
We find no abuse in the trial court’s discretion, as the Commonwealth
proved by a preponderance of the evidence that Harbold had willfully failed to
pay her restitution and court costs. Harbold’s previous acknowledgement that
she can afford to pay $75 per month, her payments to York County, and her
multiple on-the-record statements that she simply refuses to pay restitution
to Lancaster County belie her position that she cannot make any payments
towards her outstanding balance. Although Harbold’s income is modest, it
exceeds her monthly expenses, and she could have made some payment here.
Order affirmed.
Date: 10/10/2023
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