Com. v. Gary-Ravenell, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEVIN M. GARY-RAVENELL :
:
:
Appellant : No. 2551 EDA 2018
Appeal from the Judgment of Sentence Entered August 16, 2018
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0001260-2018
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 23, 2020
Kevin M. Gary-Ravenell (Appellant) appeals from the judgment of
sentence1 entered in the Montgomery County Court of Common Pleas,
following his negotiated guilty plea to possession of a controlled substance
and possession of drug paraphernalia.2 Appellant avers, for the first time on
appeal, his sentence is illegal because the trial court imposed a fine and costs
1 On September 24, 2019, a three-judge merits panel issued an opinion in this
appeal, vacating the judgment of sentence and remanding for further
proceedings. Subsequently, this Court sua sponte granted en banc review of
the issues raised by Appellant. The American Civil Liberties Union of
Pennsylvania (ACLU) and Community Legal Services (CLS) have each filed an
amicus curiae brief.
2 35 P.S. § 780-113(a)(16), (32).
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without first considering his ability to pay.3 We discern the challenge to his
fines and costs as two separate claims. We first reiterate the long-standing
principles that: (1) a fine is a part of a sentence; and (2) a claim that the
court lacked authority to impose a fine goes to the legality of sentence and
cannot be waived. We thus reach the merits of Appellant’s argument as to
his fine, grant relief, and vacate the entire judgment of sentence pursuant to
Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019). Because we vacate the
judgment, we do not reach the question of whether a claim that a trial court
failed to consider a defendant’s ability to pay costs likewise implicates the
legality of sentence.
I. Facts & Procedural History
The trial court summarized the underlying facts in its opinion as follows.
On December 1, 2017 a Lower Moreland Township Police Officer observed
Appellant operating a vehicle with a suspended New Jersey registration on
Welsh Road in Montgomery County. The officer conducted a traffic stop.
Appellant consented to a search of his vehicle,4 where the officer discovered
a marijuana “blunt,” several pills of oxycodone, and drug paraphernalia.
3Also pending on review before this Court is an appeal in Commonwealth v.
Lopez, 1313 EDA 2018. The issue presented in that case is whether the trial
court had authority, at the time of sentencing, to consider the defendant’s
motion to waive court costs. Unlike Appellant in this matter, the defendant in
Lopez challenged the imposition of costs before the trial court.
4See Police Criminal Complaint, Affidavit of Probable Cause, 1/19/18 (officer
averring that Appellant orally consented to search of his vehicle).
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Appellant was charged with, inter alia, drug possession and Motor Vehicle
Code5 offenses.
On August 16, 2018, Appellant entered a negotiated guilty plea to one
count each of possession of a controlled substance and possession of drug
paraphernalia. At the hearing, the Commonwealth informed the trial court:
. . . We have negotiated pleas for the Court’s consideration.
[Appellant] would plead guilty to Count 1, Possession of a
Controlled Substance; that is an ungraded misdemeanor. In
exchange for that plea, he would be placed on probation for a
period of one year, and pay a $50 fine plus the costs of
prosecution.
He’s also pleading guilty to Count 3, Possession of Drug
Paraphernalia, an ungraded misdemeanor. In exchange for that
plea, he would be placed on a one-year concurrent probation, pay
the costs of prosecution, and undergo a PPI [sic] and comply
with any recommended treatment.
N.T. Guilty Plea H’rg, 8/16/18, at 2 (emphases added). Appellant’s counsel
agreed that this plea deal was the parties’ agreement. Id.The trial court then imposed, pursuant to the plea agreement two terms
of one year probation to run concurrently. With respect to fines and costs,
the court stated: “[Appellant will] pay the costs on Count 1, and a $50 fine
in monthly installments as directed during the period of his supervision. Costs
are waived on Count 3.” N.T., Guilty Plea H’rg, at 12 (emphases added).
Appellant made no request that the court consider his ability to pay fines and
costs. We note, however, that the amount of the costs was neither stated on
5 See 75 Pa.C.S. §§ 101-9805.
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the record at the hearing nor in the written sentencing order, and according
to Appellant, he did not learn until after the plea and sentencing hearing that
his costs were $1,329.50 — more than 26 times the $50 fine. See Sentencing
Guideline Form, 9/12/18; Appellant’s Concise Statement of Matters
Complained of on Appeal, 9/26/18, at 1-2.
Appellant did not file a post-sentence motion, but on August 29, 2018,
filed a timely notice of appeal. The court granted him permission to proceed
in forma pauperis that same day. Pursuant to the trial court’s order, Appellant
also filed a timely Pa.R.A.P. 1925(b) statement on September 26, 2018, which
stated:6
Appellant’s guilty plea was not knowing, intelligent, and
voluntary. Following an open plea to one count of Possession of
a Controlled Substance and one count of Possession of Drug
Paraphernalia, Petitioner was sentenced to one (1) year of county
probation, a $50.00 fine, and costs. [Appellant] subsequently
received notice that the assessed costs amounted to $1,329.50.
He also subsequently learned that his driver’s license was
suspended as a result of the conviction. Appellant did not
understand at the time of the plea that he would be fined
[sic] over $1,300 for possession of marijuana and empty
containers or that he would lose his ability to drive.
Appellant’s plea discussed a $50 fine and “costs” but costs were
not specified. Appellant was not aware of the permissible range
of fines.
6 Appellant’s Rule 1925(b) statement also raised a claim that his guilty plea
should not have been “accepted because he asserted facts that might
constitute a defense” — namely that he had a prescription for the controlled
substance and that “the containers at issue [were] ‘trash.’” Appellant’s
Concise Statement of Matters Complained of on Appeal at 2. On appeal,
however, he has abandoned this issue.
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Appellant’s Concise Statement of Matters Complained of on Appeal at 1-2
(emphases added).
The trial court filed an opinion: (1) construing Appellant’s issue to be a
challenge to the voluntariness of his guilty plea; and (2) suggesting it was
waived because it was not presented in the proceedings below, but instead
raised for the first time in his Rule 1925(b) statement. Trial Ct. Op., 1/24/19,
at 7-8 & n.5, citing Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”); Commonwealth
v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super. 2017) (“In order to
preserve an issue related to a guilty plea, an appellant must either ‘object[ ]
at the sentence colloquy or . . . raise[ ] the issue at the sentencing hearing or
through a post-sentence motion.’ . . . ‘It is for the court which accepted the
plea to consider and correct, in the first instance, any error which may have
been committed.’”).
II. Parties’ & Amici’s Arguments
On appeal, however, Appellant has abandoned a claim regarding the
voluntariness of his guilty plea, and instead frames his fines-and-costs-
argument solely as a challenge to his sentence. He presents the question:
Did the sentencing court err in imposing a fine and costs at
sentencing without making a determination regarding
[Appellant’s] ability to pay?
Appellant’s Substituted Brief, 10/25/19, at vii. Appellant relies on
Pa.R.Crim.P. 706(C), which states:
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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.
See Pa.R.Crim.P. 706(C). Appellant notes Subsections (B) and (D) of Rule
706 specifically address proceedings for a defendant’s default in paying
already-imposed fines and costs.7 However, he contends Subsection (C) “is a
stand-alone provision” whose requirement — that a court consider a
7 Subsections (B) and (D) provide:
(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.
* * *
(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.
Pa.R.Crim.P. 706(B), (D) (emphasis added).
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defendant’s ability to pay — applies to the initial imposition of a fine and costs,
and not only to a default in payment. Appellant’s Brief at 11-13 & n.9.
Appellant also relies on this Court’s en banc decision in Commonwealth v.
Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc), which held the imposition
of a fine, without considering the defendant’s ability to pay, violated
Pa.R.Crim.P. 1407(C) (now Rule 706(C)). See Martin, 335 A.2d at 425-26.
Appellant further contends the imposition of fines and costs on indigent
defendants, without considering their ability to pay, disregards legislative
intent and “perpetuates cycles of poverty, recidivism, and the over-
criminalization of poor communities.” Appellant’s Substituted Brief at 6. Thus,
Appellant argues, the trial court erred when it imposed a fine and costs without
considering his ability to pay, and his case should be remanded for
resentencing. Id. at 25.
The Commonwealth agrees with Appellant that because there was no
evidence of his ability to pay a fine, his fine should be vacated.
Commonwealth’s Brief at 4, citing Ford, 217 A.3d at 831 (defendant “received
an illegal sentence when the trial court imposed non-mandatory fines without
any evidence [he] was (or would be) able to pay them,” regardless of the fact
that fine was a part of negotiated guilty plea). However, the Commonwealth
contends neither Rule 706(C) nor Martin require a presentence inquiry of a
defendant’s ability to pay costs. Commonwealth’s Brief at 6.
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In support of Appellant, the ACLU’s and CLS’ amici curiae briefs likewise
aver that Rule 706(C) requires a trial court to consider, before imposing fines
and costs, the defendant’s ability to pay. ACLU Amicus Brief at 4-5; CLS’
Amicus Brief at 7. Both organizations also address public policy. The ACLU
contends: “Court costs, unlike fines, are not supposed to ‘punish’ the
defendant. But when a defendant is unable to pay the costs and is [thus]
jailed, or has his driver’s license taken away . . . or cannot receive life-saving
public assistance such as food stamps . . . court costs become a punishment.”
ACLU’s Amicus Brief at 1. CLS contends a court’s failure to assess ability to
pay negatively affects low income individuals by “entrapping them in poverty
and placing them at risk of further criminal system contact,” and that
“[i]ndividuals are more likely to satisfy their court financial obligations when
the fines and costs . . . are reasonably tailored to their financial means.” Id.
at 7, 20.
III. Appellate Sentencing Claims & Waiver Generally
We reiterate that Appellant presented no claim, at the plea and
sentencing hearing or in any post-sentence motion, that the trial court failed
to consider his ability to pay fine and costs. As the trial court noted, “[i]ssues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” See Pa.R.A.P. 302(a); Trial Ct. Op. at 7. On appeal, however,
Appellant contends, in sum in a footnote:
The sentencing court’s imposition of fines and costs at sentencing
implicates the legality of the sentence and cannot be waived. See
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Commonwealth v. Lehman, [201 A.3d 1279 (Pa. Super. 2019),
appeal granted, 215 A.3d 967 (Pa. 2019)]; Commonwealth v.
Boyd, 73 A.3d 1269, 1272 (Pa. Super. 2013) (en banc) . . . ;
Commonwealth v. Garzone, 993 A.2d 306, 315-16 ([Pa.
Super.] 2010)], aff’d, 34 A.3d 67 ([Pa.] 2012).
Appellant’s Substituted Brief at 9-10 n.6 (emphasis added). Appellant refers
to fines and costs collectively and argues “there is ‘no basis in logic or law’ to
distinguish between the ability to pay fines and costs when determining
whether a defendant is able to pay.”8 Id. at 15, citing Commonwealth ex
rel. Parrish v. Cliff, 304 A.2d 158, 162 (Pa. Super. 1978).
“[I]n all sentencing cases, we must determine at the outset whether the
appellant’s issue concerns a discretionary aspect of sentence or the legality of
his sentence,” as they are treated differently on appeal. Commonwealth v.
Smith, 544 A.2d 991, 994 (Pa. Super. 1988) (en banc). “[A] challenge to the
legality of a sentence may be appealed as of right” and “can never be waived.”
Id., citing, inter alia, 42 Pa.C.S. § 9781(a) (“The defendant or the
Commonwealth may appeal as of right the legality of the sentence.”). “A
legality issue is essentially a claim that the trial court did not have jurisdiction
to impose the sentence which it handed down.” Smith, 544 A.2d at 994.
8 We further note that in his Pa.R.A.P. 1925(b) statement, Appellant conflates
fines and costs. The statement avers that: he “was sentenced to . . . a $50.00
fine,” he “subsequently received notice that the assessed costs amounted to
$1,329.50,” yet he “was not aware of the permissible range of fines” and he
“did not understand at the time of the plea that he would be fined over
$1,300[.]” Appellant’s Concise Statement of Matters Complained of on Appeal
at 1-2 (emphases added).
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On the other hand, “[a] challenge to a discretionary aspect of sentence
may be waived if it is not properly raised in the trial court and in the appellant’s
brief to this court.” Smith, 544 A.2d at 994, citing, inter alia, 42 Pa.C.S. §
9781(b) (“The defendant or the Commonwealth may file a petition for
allowance of appeal of the discretionary aspects of a sentence[, which] may
be granted at the discretion of the appellate court where it appears that there
is a substantial question that the sentence imposed is not appropriate under
this chapter.”).
IV. Appellate Treatment of Fines
Subsection 9721(a) of the Pennsylvania Sentencing Code9 provides:
(a) General rule.—In determining the sentence to be
imposed the court shall, except as provided in subsection (a.1),
consider and select one or more of the following alternatives, and
may impose them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
* * *
42 Pa.C.S. § 9721(a)(1)-(5). Notably, “costs” are not included. Furthermore,
this list is not preceded by the expressions “including” or “including but not
9 42 Pa.C.S. §§ 9701-9913.
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limited to,” which are generally “considered as words of enlargement and not
limitation.” See Dep’t of Envtl. Prot. v. Cumberland Coal Res., LP, 102
A.2d 962, 976 (Pa. 2014).
Costs, meanwhile, are addressed separately in Subsection (c.1):
Mandatory payment of costs.—Notwithstanding the provisions
of section 9728[10] (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. § 9721(c.1) (emphases added).
Section 9726, “Fine,” of the Sentencing Code states:
(a) Fine only.—The court may, as authorized by law,
sentence the defendant only to pay a fine, when, having regard to
the nature and circumstances of the crime and to the history and
character of the defendant, it is of the opinion that the fine alone
suffices.
10 Section 9728(b.2) provides:
Mandatory payment of costs.—Notwithstanding any provision
of law to the contrary, in the event the court fails to issue an order
under subsection (a) imposing costs upon the defendant, the
defendant shall nevertheless be liable for costs, as provided
in section 9721(c.1), unless the court determines otherwise
pursuant to Pa.R.Crim.P. No. 706(c) (relating to fines or
costs). The absence of a court order shall not affect the
applicability of the provisions of this section.
42 Pa.C.S. § 9728(b.2) (emphases added).
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(b) Fine as additional sentence.–The court may
sentence the defendant to pay a fine in addition to another
sentence, either involving total or partial confinement or
probation, when:
(1) the defendant has derived a pecuniary gain from
the crime; or
(2) the court is of the opinion that a fine is specially
adapted to deterrence of the crime involved or to the
correction of the defendant.
(c) Exception.–The court shall not sentence a
defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the
fine; and
(2) the fine will not prevent the defendant from
making restitution or reparation to the victim of the crime.
42 Pa.C.S. § 9726(a)-(c) (emphases added).
In the 2012 en banc decision in Boyd, this Court considered
the explicit language of the mandate contained in section 9726:
“The court shall not sentence a defendant to pay a fine unless it
appears of record that . . . ” the defendant has the financial means
to pay the fine and that the fine will not interfere with payment of
restitution to a victim. 42 [Pa.C.S.] § 9726(c)(1).
Boyd, 73 A.3d at 1273. The Boyd Court concluded that a claim — “that there
was no record of the defendant’s ability to pay before the sentencing court” —
is a challenge to the legality of a sentence:
[A]n argument that there was no evidence of the defendant’s
ability to pay constitutes a claim that the fine was imposed in
direct contravention of a statute. Furthermore, a complete lack
of evidence in the record would be apparent from the face of the
record and would not require the application of reasoning or
discretion on the part of the appellate court. Accordingly, we
conclude . . . that a claim raising the complete absence of evidence
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of the defendant’s ability to pay is not subject to waiver for a
failure to preserve the issue in the first instance.
Boyd, 73 A.3d at 1273–74.
In the 2019 Pennsylvania Supreme Court decision in Ford, the
defendant pleaded guilty pursuant to a negotiated plea agreement under
which he agreed to, and was ordered by the court to, pay four fines totaling
$2,700. Ford, 217 A.3d at 826. One fine was mandatory, while the remaining
three fines were imposed at the court’s discretion.11 Id. at 827-28. He did
not file a post-sentence motion nor direct appeal, but filed a Post Conviction
Relief Act12 (PCRA) petition, arguing “that his sentence is illegal because the
trial court ‘did not conduct a hearing or find facts related to [his] ability to pay
the fines and costs[.]’” Id. at 826.
On review, our Supreme Court reasoned the plain language of
Subsection 9726(c) “is clear: trial courts are without authority to impose non-
mandatory fines absent record evidence that the defendant is or will be able
to pay them.” Ford, 217 A.3d at 829. The Court thus concluded the
defendant “received an illegal sentence when the trial court imposed non-
11 The mandatory fine was imposed pursuant to 75 Pa.C.S. § 3804(c)(2)(ii),
for a second offense of driving under influence of alcohol or controlled
substance. Ford, 217 A.3d at 827. A second offense also carried a mandatory
fine, but the trial court imposed an amount “substantially” more than the
mandatory minimum amount. Id. at 828.
12 42 Pa.C.S. §§ 9541-9546.
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mandatory fines without any evidence [the defendant] was (or would be) able
to pay them.” Id. at 831. In so holding, the Court rejected
the Commonwealth’s argument that a defendant’s agreement to
pay a given fine is evidence of his ability to pay for purposes of
Subsection 9726(c). [The Court reasoned:] The mere fact that a
person agrees, as part of a quid pro quo arrangement, to pay a
specific sum does not necessarily mean that he or she can (or
even will be able to) make good on that promise. This is especially
true in the plea-bargaining context, where it is fair to say that the
primary concern of most defendants is the length of their
incarceration rather than the sum of their fines. Put differently,
when the Commonwealth extends a plea offer that includes a
short prison sentence and an exorbitant fine, a rational defendant
might — either out of shortsightedness or naïve optimism — gladly
accept the offer even though he or she has no realistic strategy to
satisfy the debt. For this reason alone, we are unpersuaded that
[the defendant’s] guilty plea agreement represents the sort of
ability-to-pay evidence that the Sentencing Code unambiguously
requires.
Id. at 829.
In light of the foregoing discussion, we conclude an allegation that the
trial court failed to consider a defendant’s ability to pay before imposing a fine
is a challenge to the legality of his sentence, and is not subject to waiver.
V. Disposition of Appellant’s Fine Claim
Applying the above discussion, we conclude Appellant is entitled to relief
as to his fine. His claim, that the trial court lacked authority to impose the
$50 fine because it did not consider his ability to pay, implicates the legality
of his sentence. See Ford, 217 A.3d at 831; Boyd, 73 A.3d at 1273-74.
Accordingly, although Appellant did not raise it before the trial court, it is not
waived. See id. We thus consider the merits.
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We note the relevant standard of review:
The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court’s application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation
omitted).
Our review of the record supports Appellant’s claim that the trial court
did not consider his ability to pay before imposing a fine. See 42 Pa.C.S. §
9726(c); Ford, 217 A.3d at 829. Appellant’s agreement to pay a $50 fine, as
a part of the parties’ negotiated plea deal, is not relevant. See Ford, 217
A.3d at 829; N.T., Guilty Plea H’rg, at 2. Accordingly, we conclude the fine
was an illegal sentence, and thus vacate it. See Ford, 217 A.3d at 831.
We now examine the disposition in Ford. The Supreme Court vacated
the defendant’s non-mandatory fines, but affirmed his mandatory fine. Ford,
217 A.3d at 831. Nevertheless, the Court reasoned:
[The Superior Court] panel should have vacated [the
defendant’s] entire judgment of sentence rather than
simply vacating the illegal fines and remanding for
resentencing. Indeed, the Commonwealth persuasively argues
that it will be deprived of the benefit of its bargain if criminal
defendants can, for instance, agree to pay a larger fine in
exchange for a shorter term of incarceration, but then later
attempt to eliminate or reduce the fine in a post-conviction
proceeding. See Brief for Commonwealth at 10. Because
selectively vacating specific conditions of a plea agreement
threatens to upset the parties’ underlying bargain, the better
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remedy is to put both sides right back where they started, at which
point they can begin plea negotiations anew or proceed to trial.
In summary, the Superior Court correctly held that Subsection
9726(c) of the Sentencing Code requires record evidence of a
defendant’s ability to pay a fine even in the negotiated guilty plea
context. Because no such evidence exists in the record before us,
the trial court imposed an illegal sentence, which we vacate in its
entirety. . . .
Id. (emphasis added).
We apply the same rationale here. The parties’ negotiated plea deal
included a $50 fine, which we hereby vacate. See N.T., Guilty Plea H’rg, at
2. As this disposition may disrupt the parties’ underlying bargain, we vacate
the entire judgment of sentence and remand so that the parties “can begin
plea negotiations anew or proceed to trial.” See Ford, 217 A.3d at 831.
VI. Disposition of Appellant’s Costs Claim
We briefly consider Appellant’s claim that his challenge to costs likewise
implicates the legality of sentencing and thus cannot be waived. In reviewing
this issue, we discern divergent lines of Superior Court authority. As stated
above, Appellant cites as support Lehman, 201 A.3d 1279, and Garzone,
993 A.2d 306. See Lehman, 201 A.3d at 1283 (“Because [the defendant]
challenges the trial court’s authority to impose costs as part of its resentencing
order, we conclude that the [defendant’s] claim implicates the legality of his
sentence and, thus, he was not required to include a [Pa.R.A.P. 2119(f)
statement] in his brief or to raise the issue before the trial court.”); Garzone,
993 A.2d at 316 (“[I]nasmuch as [the defendant’s] argument is premised
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upon a claim that the trial court did not have the authority to impose the costs
at issue, [the defendant] has presented a legality of sentencing claim.”),
citing, inter alia, Commonwealth v. Allshouse, 924 A.2d 1215, 1229 n.28
(Pa. Super. 2007) (“Like a challenge based on the contention an award of
restitution is unsupported by the record is a challenge to the legality of the
sentence, we analogously conclude this rationale can be applied to the
imposition of costs.”), affirmed on other grounds, 985 A.2d 847 (Pa. 2009),
vacated and remanded on other grounds, Allshouse v. Pennsylvania, 131
S. Ct. 1597 (2011).13
We note, however, several decisions that hold costs are not part of a
sentence. See Commonwealth v. Mulkin, 228 A.3d 913, 919 (Pa. Super.
2020) (“[U]nlike fines, which are [a] 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
13We note that in Allshouse, the defendant “contend[ed] the trial court erred
in awarding the costs to the Commonwealth pursuant to 16 P.S. § 1403,
Expenses incurred by district attorney, because no evidence was introduced
demonstrating how these costs were calculated or for what they were
incurred.” Allshouse, 924 A.2d at 1229. See 16 P.S. § 1403 (“In any case
where a defendant is convicted and sentenced to pay the costs of prosecution
and trial, the expenses of the district attorney in connection with such
prosecution shall be considered a part of the costs of the case and be paid by
the defendant.”). As we discuss infra, the Pennsylvania Supreme Court has
granted allowance of appeal in Lehman on the imposition of costs under this
statute. See Lehman, 215 A.3d at 967.
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the punishment of criminal offenses[.]’”), citing, inter alia, Commonwealth
v. Soudani, 165 A.2d 709, 711 (Pa. Super. 1960) (“[A] direction to pay costs
in a criminal proceeding is not part of the sentence, but is an incident of the
judgment[.]”).14
Accordingly, to resolve Appellant’s claim as to whether a trial court’s
authority to impose costs implicates the legality of sentence, we would
necessarily overrule one line of authority in favor of the other. After careful
review, we decline to do so in this appeal, where, as stated above, we vacate
Appellant’s costs as an incidental result of granting relief on an unrelated issue
— his fine. We are also informed by the fact that the Pennsylvania Supreme
Court has granted review in Lehman on the following issue:
Whether the Pennsylvania Superior Court erred as a matter of law
by holding that the costs relating to contested expert testimony in
a contested resentencing do not constitute costs of prosecution
under 16 P.S. § 1403[ ] and are ineligible for imposition upon
a defendant reimbursement as part of a sentence as a
matter of law rather than the sentencing court’s
discretion[?]
Lehman, 215 A.3d at 967 (emphasis added). While this issue concerns
Section 1403 of the Pennsylvania County Code,15 which is not present in the
case sub judice, the issue also includes a claim that costs were imposed
pursuant to the court’s discretion. Id. We also note the plain language of
14We note Soudani predates our Sentencing Code, which was enacted in
1974 and made effective in 1975.
15 16 P.S. §§ 101 to 3000.3903.
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Section 1403, referring to a defendant being “sentenced to pay the costs of
prosecution,” which may undermine an argument that costs are not a part of
a sentence. See 16 P.S. § 1403.
VII. Conclusion
In sum, we hold Appellant’s claim that the trial court imposed an illegal
sentence by failing to inquire into his ability to pay fines is not waived, and
merits relief. Pursuant to Ford, because Appellant’s fine was a part of his
negotiated plea agreement, we vacate the entire judgment of sentence and
remand so that the parties “can begin plea negotiations anew or proceed to
trial.” See Ford, 217 A.3d at 831. Because of this disposition, we do not
reach Appellant’s claim as to whether the court’s failure to consider his ability
to pay costs likewise implicates the legality of sentence.16
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
President Judge Panella, and Judges Stabile, Dubow, Kunselman,
Murray, McLaughlin, and King join the Memorandum.
Judge Nichols concurs in result.
16 We do not reach the question of whether Pa.R.Crim.P. 706(C) requires a
trial court to consider a defendant’s ability to pay before imposing costs.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/20
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