Com. v. Cooper, D.

J-S29010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD LEE COOPER III :
:
Appellant : No. 2495 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000476-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: July 23, 2020
Appellant, Donald Lee Cooper III, appeals from the judgment of
sentence entered in the Montgomery County Court of Common Pleas on
August 2, 2019, after he was resentenced to imprisonment following
revocation of his parole. For the reasons discussed below, we vacate and
remand for resentencing.
On March 4, 2019, Appellant entered a negotiated guilty plea to defiant
trespass. The trial court imposed a negotiated sentence of time-served1 to six
months’ incarceration, plus payment of costs of prosecution, a fine of one
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Appellant received credit for eighteen days of incarceration from November
18, 2018 to December 6, 2018.
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hundred dollars, and supervision fees. See N.T., Guilty Plea, 3/4/2019, at 6;
see also Sentencing Order, 3/4/2019, at 2. Approximately one month later
Appellant was paroled.
On August 2, 2019, Appellant stipulated to violating his parole.
Specifically, Appellant stipulated that he was arrested on new charges,
including defiant trespass; he failed to report to the probation and parole
department as directed; he failed to maintain a legal and verifiable address;
and he failed to pay fines and costs as directed. 2 The court sentenced
Appellant to to serve the balance of his original sentence, dated from May 31,
2019, with no credit for time on parole, and with eligibility for parole after
three months. The sentencing order further specified that Appellant must pay
the “balance [due] within the first 4 months of supervision in monthly
installments as directed” and that he “shall pay the monthly offender
supervision fee”. Sentencing Order, 8/2/2019. This appeal followed.
Appellant raises two issues on appeal.
1. Did the trial court err in revoking parole on the basis of failure
to pay costs and a fine without determining that the failure to pay
was willful?
2. Did the parole revocation sentence illegally exceed the original
sentence where: (a) the court sentenced [Appellant] to five
months and twelve days of back-time after he served forty-eight
days on a six month sentence and, (b) he is being ordered to pay
the balance on a $1,000 fine but was originally sentenced to a
$100 fine?
____________________________________________
2Appellant was charged with failing to pay a balance due of $1,819.00, and
an overdue amount of $727.60.
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See Appellant’s Brief, at 2.
In his first issue, Appellant contends he was sentenced to incarceration
“in substantial part [for] failure to pay a fine and costs, without a
determination that he was able to pay the fine and costs” and therefore his
case should be remanded for an ability-to-pay hearing. Appellant’s Brief, at
9-10. “Prior to imprisoning a contemnor for failure to pay fines or costs, the
trial court must render findings of fact on the contemnor's financial resources.”
Commonwealth v. Diaz, 191 A.3d 850, 866 (Pa. Super. 2018). “A claim that
the trial court erroneously imposed an illegal sentence is a question of law
and, as such, our scope of review is plenary and our standard of review is de
novo.” Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013)
(citation omitted).
In its 1925(b) opinion, the trial court admits that it revoked Appellant’s
parole “in part based upon his failure to pay supervision fees” and further that
“[t]here was no determination as to his ability to pay.” Trial Court Opinion, at
4-5. Both the Commonwealth and the trial court agree a remand is necessary
for a hearing to determine Appellant’s ability to pay his financial obligations.
We find Appellant’s assertion that his failure to pay his financial
obligations was a “substantial” basis for his sentence of incarceration is belied
by the record, as Appellant stipulated to multiple violations of his parole in
addition to his failure to pay his financial obligations, all of which the court
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took into consideration in resentencing Appellant. It is unclear from the record
the amount of weight given to each violation.
We nevertheless agree that to the extent Appellant’s failure to pay his
financial obligations factored into the court’s reasoning in any way, Appellant
was entitled to an ability-to-pay hearing. See Pa.R.Crim.P. 706(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.”); see also Diaz, 191 A.3d at 866. We therefore remand to the
trial court for a hearing on Appellant’s ability to pay his financial obligations.
Due to our disposition, we need not reach Appellant’s second issue, in
which he contends his new sentence illegally exceeds his original sentence in
that the trial court miscalculated the balance of his sentence and ordered him
to pay a higher fine than the original sentence. Since we are remanding for a
hearing on Appellant’s failure to pay his financial obligations, a factor in his
sentence of incarceration, it follows that the sentence imposed following
revocation of Appellant’s parole is vacated, and we need not address this issue
further. Appellant may raise these issues before the trial court on remand,
prior to resentencing.
Case remanded for resentencing after a determination of Appellant’s
ability to pay his financial obligations. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
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