Com. v. Kulp, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARISSA A. KULP :
:
Appellant : No. 2125 EDA 2020
Appeal from the Judgment of Sentence Entered July 11, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007277-2018
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JULY 30, 2021
Appellant, Marissa A. Kulp, appeals from the judgment of sentence,
entered July 11, 2019. We affirm.
The trial court adequately summarized the procedural history of this
case as follows:
On October 12, 2018, Pottstown Borough Police Department filed
a criminal complaint charging Appellant with burglary, criminal
trespass and related offenses. On April 24, 2019, a jury found
Appellant guilty of one count of burglary,1 one count of criminal
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1 18 Pa.C.S.A. § 3502[.]
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trespass,2 one count of theft from a motor vehicle,3 and one count
of theft by receiving stolen property.4
At a sentencing hearing on July 11, 2019, [the trial] court
sentenced Appellant to a term of imprisonment for not less than
two (2) years nor more than five (5) years in a State Correctional
Institution. The [trial] court imposed a consecutive term of
probation for a period of three (3) years. The [trial] court
sentenced Appellant to pay the costs of prosecution and a fine of
$1,000.00 within the first 24 months of release from custody.
On August 6, 2019, the office of the public defender filed a timely
[n]otice of [a]ppeal to [this Court] on behalf of Appellant.5 On
August 12, 2019, [the trial] court ordered Appellant to file a
concise statement of matters complained of on appeal. On
September 3, 2019, Appellant filed a timely concise statement.
On September 4, 2019, Appellant filed an amended concise
statement, eliminating one issue raised in [her] earlier []
statement.
On September 16, 2019, the [trial court] filed an opinion pursuant
to Pa.R.A.P. 1925(a) and the record was transmitted to [this
Court]. [This Court] issued a briefing schedule. On December 18,
2019, [this Court] dismissed Appellant’s appeal for failure to file a
brief. On January 24, 2020, [this Court] remanded the record to
the trial court.
On January 24, 2020, the office of the public defender filed a
petition to reinstate appeal nunc pro tunc on Appellant’s behalf.
The petition asserted that, “[d]ue to administrative error that is
of no fault of [Appellant], the new briefing schedule was not
properly calendared by the office of the public defender. As a
result, appellate counsel inadvertently failed to file a timely brief.”
On February 18, 2020, th[e trial] court denied that petition.
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2 18 Pa.C.S.A. § 3503[.]
3 18 Pa.C.S.A. § 3934[.]
4 18 Pa.C.S.A. § 3925[.]
5 [We docketed the appeal at] 2249 EDA 2019[.]
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On September 4, 2020[, appellate counsel] properly filed a Post
Conviction Relief Act [p]etition (“PCRA [p]etition”) [pursuant to 42
Pa.C.S.A. §§ 9541-9546,] for reinstatement of appeal and
appointment of counsel.6 On September 15, 2020, the court
ordered the Commonwealth to file a response to the PCRA. By
order dated October 19, 2020, the [trial court sitting as a PCRA]
court granted Appellant’s PCRA [p]etition on the basis of
ineffective assistance of counsel, reinstated Appellant’s direct
appeal rights, and appointed conflict counsel to represent
Appellant for her direct appeal.
Trial Court Opinion, 12/11/20, at 1-3 (some citation omitted) (footnotes
numbered as in original). This appeal followed.1
Appellant’s sole issue on appeal is as follows:
Did the trial court err in not making a determination regarding
Appellant’s ability to pay court ordered fines and court costs prior
to sentencing the Appellant?
Appellant’s Brief at 3.
Appellant contends that the applicable Pennsylvania statutes and the
Rules of Criminal Procedure require a sentencing court to consider a
defendant’s ability to pay prior to imposing costs and fines, such that costs
and fines are subject to waiver where a defendant is indigent, as established
by his or her eligibility for the services of a public defender. Appellant’s Brief
at 10. Appellant asserts that the Pennsylvania Rule of Criminal Procedure
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6 The [order] dismissing [Appellant’s original] direct appeal became final thirty
(30) days from December 18, 2019. This PCRA [p]etition was timely filed
within one (1) year of the date [Appellant’s] judgment became final. See 42
Pa.C.S.A. § 9545(b).
1 Appellant timely filed a concise statement of matters complained of on appeal
on November 11, 2020 pursuant to Pa.R.A.P. 1925(b). The trial court
subsequently filed its 1925(a) opinion on December 11, 2020.
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706(C) mandates that courts determine the defendant’s ability to pay costs
and fines at the time of sentencing. She claims that the sentencing court
committed legal error by failing to follow this alleged mandate.
Appellant’s claim challenges the sentencing court’s authority to impose
fines and costs as part of its sentencing order. Therefore, it implicates the
legality of her sentence. See Commonwealth v. Lehman, 201 A.3d 1279,
1283 (Pa. Super. 2019), affirmed, 243 A.3d 7 (Pa. 2020). Thus, while
Appellant did not raise this issue at sentencing or in a post-sentence motion,
her claim is not subject to waiver. Commonwealth v. Boyd, 73 A.3d 1269,
1270 (Pa. Super. 2013) (en banc). Our standard of review is plenary and is
limited to determining whether the trial court committed an error of law.
Commonwealth v. Snyder, 2021 WL 1324388 at *10 (Pa. Super. Apr. 9,
2021). Appellant does not contest the terms of her imprisonment or her
consecutive probation. Instead, she focuses her challenge solely on the
imposition of court costs and a $1,000.00 fine. We first analyze Appellant’s
issue regarding costs and then turn to her issue regarding the fine.
Appellant argues that the legislature “explicitly mandated that costs
should be imposed only if the defendant is financially able to pay.” Appellant’s
Brief at 12. Appellant asserts that Rule 706(C) required the sentencing court
to determine her ability to pay before imposing costs. Appellant’s Brief at 13.
Appellant’s argument misconstrues the applicable statutory and case law and
thus lacks merit.
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During the pendency of this appeal, this Court addressed the precise
issue raised by Appellant in Commonwealth v. Lopez, 248 A.3d 589 (Pa.
Super. 2021) (en banc). The Lopez Court rejected the argument that
Appellant asserts here. Rather, the Lopez Court reaffirmed our prior
precedent that Rule 706(C) “in no way places an affirmative duty on a
sentencing court to hold an ability-to-pay hearing prior to imposing mandatory
costs upon a defendant.” Id. at 594; accord Commonwealth v. Childs, 63
A.3d 323, 326 (Pa. Super. 2013); Commonwealth v. Hernandez, 917 A.2d
332, 336-337 (Pa. Super. 2007). The en banc panel clarified:
we hold that while a [sentencing] court has the discretion to hold
an ability-to-pay hearing at sentencing, Rule 706(C) only
requires the court to hold such a hearing when a defendant faces
incarceration for failure to pay court costs previously imposed on
[her].
Lopez, 248 A.3d at 590 (emphasis added). Therefore, with respect to costs,
a sentencing court may, in its own discretion, hold an ability-to-pay hearing
at sentencing, but it is not required to do so until such time as the defendant
is in default and threatened with impending incarceration. Commonwealth
v. Ford, 217 A.3d 824, 827 n.6 (Pa. 2019) (a presentence ability-to-pay
determination is not necessary for mandatory costs, however a defendant
cannot be committed to prison unless the court determines defendant’s
inability to pay).
Here, the court, at sentencing, imposed mandatory court costs pursuant
to Section 9721(c.1) of the Sentencing Code. See Trial Court Opinion,
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12/11/20, at 8, citing 42 Pa.C.S.A. § 9721(c.1).2 At that time, Appellant did
not face default or potential incarceration for failure to pay previously-imposed
assessments of costs. Because no presentence determination of Appellant’s
ability to pay mandatory court costs was required at sentencing, the
sentencing court did not commit error in its imposition of court costs.
Appellant next argues that her sentence was illegal because the
sentencing court failed to determine her ability-to-pay before imposing a
$1,000.00 fine. Appellant’s Brief at 17. Appellant contends that she is
indigent, as shown by her qualification for public defender services. Id. at 16.
Appellant asserts that the sentencing court erred in imposing a fine because
it failed to inquire into her ability to pay, failed to discuss the burden it would
place on her once released, and failed to consider her indigence. Id. at 17.
Sentencing courts may impose fines on a defendant either as a sole
punishment or as an additional sentence. 42 Pa.C.S.A. § 9726(a) and (b);
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2 Section 9721(c.1) provides:
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. 706(C) (relating to fines or costs).
42 Pa.C.S.A. § 9721(c.1) (emphasis added).
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see also 42 Pa.C.S.A. § 9721(a)(5) (providing fines as a sentencing
alternative). Courts may impose fines as an additional sentence if they
determine that either (1) the defendant derived a pecuniary gain from the
crime or (2) a fine is specially adapted to deterrence or correction of the
defendant. 42 Pa.C.S.A. § 9726(b). Section 9726 forbids the imposition of a
fine unless “it appears of record” that “the defendant is or will be able to pay
the fine[.]” 42 Pa.C.S.A. § 9726(c)(1).3
The ability-to-pay requirement set out in Section 9726(c)(1) does not
necessarily require testimonial evidence. Ford, 217 A.3d at 831 n.14; id. at
828 (a sentence is illegal only when the record is silent as to defendant’s
ability to pay). Rather, a presentence investigation (“PSI”) report can satisfy
the inquiry. Id. at 831 n.14; Boyd, 73 A.3d at 1274. Where a sentencing
court possesses a PSI report, reviewing courts presume that the sentencing
court “was both aware of and appropriately weighed all relevant information
contained therein.” Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super.
2002); accord Boyd, 73 A.3d at 1274 (evidentiary basis existed for
imposition of a non-mandatory fine when the court possessed a PSI report
“containing significant information regarding appellant’s educational history,
employment history, and existing assets”).
The sentencing court explained:
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3 Section 9726(c)(2) does not come into play in this case because the court
did not order payment of restitution.
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Prior to the sentencing hearing, the [sentencing] court received
and reviewed Appellant’s PSI report and [Probation and Parole
Intervention (“PPI”)] evaluation. N.T. Sentencing [Hearing,]
7/11/19[,] at 3. The assistant district attorney and Appellant’s
counsel each reviewed the PSI report and PPI evaluation. [Id.]
Counsel made no corrections to the reports. [Id.] At the
sentencing hearing, the assistant district attorney placed the
sentencing guidelines on the record. [Id.] at 5-7.[4]
Prior to imposing [the] sentence upon Appellant, the [sentencing]
court carefully reviewed Appellant’s PSI report and PPI evaluation
[Id.] at 17-18. The PSI report provided detailed information
related to Appellant’s education, economic status and
occupation.[5] In addition, the [sentencing] court reviewed
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4 According to the guidelines, as written within the PSI report, three of
Appellant’s four convictions carried recommended fines as part of their
respective sentences. PSI report, 6/25/19, at 10 and 11. Specifically, count
two, criminal trespass, carried a recommended fine of $1,088.00 to
$1,269.00. Id. at 10. Counts four and five, theft by unlawful taking, each
carried a recommended fine of $544.00 to $725.00. Id. at 11. Therefore,
the guidelines recommended the imposition of fines totaling up to $2,719.00.
5 The PSI report noted that Appellant graduated from high school and attended
a vocational-technical school for cosmetology. PSI report, 6/25/19, at 7.
Appellant did not complete her cosmetology program due to an ATV accident.
Id. Nevertheless, Appellant plans to further her education post-incarceration.
Id. Appellant received government assistance by way of $195.00 in food
stamps per month. Id. Her work history included employment part-time at
a local Redners and then full-time as an in-home health aide for a wage of
$9.50 per hour. Id. at 6 and 8. Appellant reported being unemployed since
2015, but she “relied on the men in her life to cover her expenses” including
“housing, transportation, food, and spending money.” Id. at 7-8. Appellant
also received support from her mother, including care for her daughter. Id.
at 8. Upon release from prison, Appellant plans to apply for Social Security
Disability. Id. Though Appellant asserts in her brief to this Court that she
“has outstanding medical bills and other debts,” see Appellant’s Brief at 17,
she reported only one debt to the PSI investigator – court costs and fines in
Berks and Montgomery counties. PSI report, 6/25/19, at 8. Appellant had
several opportunities to correct or supplement the PSI report, including
entering a statement within the report and correcting the PSI report prior to
sentencing, but she failed to do so. See id. at 8; N.T. Sentencing Hearing,
7/11/19, at 3-4.
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Appellant’s written statement (two pages long) that she submitted
in conjunction with the PSI report. [Id.] at 17. Appellant also
provided an oral statement at the sentencing hearing.
Accordingly, [the sentencing] court had a sufficient evidentiary
basis to determine Appellant’s ability to pay, and the imposition
of a fine of $1,000.00 . . . was proper.
Trial Court Opinion, 10/6/20, at 9 (ellipsis omitted).
Based on our review of the record and the sentencing court’s possession
of a very detailed PSI report, we presume that the sentencing court was aware
of and appropriately weighed the information contained therein. Griffin,
supra. We therefore conclude that an evidentiary basis of record existed
regarding Appellant’s ability-to- pay. Ford, Boyd. Further challenges beyond
the presence of an evidentiary basis of Appellant’s ability-to-pay pertain to
the discretionary aspects of sentencing, which Appellant waived for failing to
preserve the claim at the trial court level. Boyd, 73 A.3d at 1274.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2021
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