Commonwealth v. Diaz

J-A04022-18

2018 PA Super 175

COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
WILLIAM PEREZ DIAZ :
: No. 893 MDA 2017
Appellant

Appeal from the Order Entered April 25, 2017
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001175-2013,
CP-38-CR-0001838-2012

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

OPINION BY NICHOLS, J.: FILED JUNE 21, 2018

Appellant William Perez Diaz appeals from the order holding him in

contempt and imprisoning him for failure to pay court-ordered fines and costs.

Appellant challenges whether the trial court erred by not appointing him

counsel and without making a finding of fact that he had the financial ability

to pay. Because the court erred, we vacate the order below and remand for

appointment of counsel and a new hearing, at which the trial court must

render appropriate findings on Appellant’s financial ability to pay the fines and

costs.

At docket no. 1838-2012, on July 3, 2013, Appellant entered a plea of

guilty to retail theft and was ordered to pay $23.98 in restitution, $400 in

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* Retired Senior Judge assigned to the Superior Court.
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fines, and $1,686.35 in costs. The trial court imposed a sentence of 100 days’

to eighteen months’ imprisonment, but immediately paroled him. Order,

7/3/13. At some point, Appellant paid the restitution in full.

At docket no. 1175-2013, on December 18, 2014, Appellant entered a

plea of guilty to use of or possession with intent to use drug paraphernalia,

and the trial court ordered him to pay $100 in fines and $1,536 in costs. The

court sentenced Appellant to serve one year of probation.

Both dockets reflect several entries for hearings on a violation of

probation or parole, as well as bench warrants and delinquency notices. In

pertinent part, the docket for no. 1838-2012 reflects a November 2, 2016

entry for “contempt fines and costs scheduled 01/30/2017 9:00 a.m.” Docket

at 15. The trial court subsequently scheduled a delinquency hearing for

January 30, 2017. Appellant failed to appear for the hearing, and the court

issued a bench warrant.

On April 6, 2017, Appellant appeared at a bench warrant hearing. At

the hearing, the court asked Appellant how much he could afford for bail. N.T.

Bench Warrant Hr’g, 4/6/17, at 3. Appellant responded that he knew someone

in Reading, Pennsylvania, who could provide “maybe fifty to a hundred dollars

and (inaudible) maybe twenty dollars.”1 Id. at 4. The trial court informed

Appellant of his right to counsel, vacated the bench warrant, and set bail at

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1 The record does not clarify the inaudible portion of the transcript.

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$100 for each docket, for a total of $200 cash. Id. at 2, 4. The court also

scheduled a contempt hearing. The court did not explicitly advise Appellant

that he could be imprisoned if he failed to make bail. Appellant did not pay

bail, so he remained in prison.

At the April 24, 2017 contempt hearing, Appellant appeared without

counsel. The trial court did not colloquy Appellant about proceeding pro se,

and Appellant did not waive his right to counsel. The Commonwealth was

represented only by a probation officer from the Lebanon County Collections

and Disbursement Unit.

We reproduce the entirety of the hearing after the trial court swore

Appellant under oath:

[Probation officer]: Your Honor, this is the second time [Appellant]
is scheduled for a contempt hearing. Previously one bench
warrant issued. Payment plan is currently set at $100 a month
per agreement that he signed back on January 11, 2016.

[The court]: William [addressing Appellant], did anybody come
with any money?

[Appellant]: I did get a letter from . . . that in Reading he does
have a job for me . . . (inaudible)

[The court]: The [c]ourt makes the following findings. This is the
second time this has been scheduled. One previous bench
warrant. Payments were set at $100 a month per an agreement
in January 2016. He’s failed to pay since a year ago, over a year
ago—March. With a balance of $710.33 in one case and $1636.00
in another. The [c]ourt finds [Appellant] in contempt and directs
he be incarcerated in the Lebanon County Correctional Facility for
a period of thirty days. He may purge himself of this contempt on
[docket no. 1838-2012] by paying $100 on the account. And on
[docket no. 1175-2013] by paying $150. The [c]ourt has no
objection to immediate work release. All right.

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[Probation officer]: Your Honor, if you could add a [c]ourt
[o]rdered amount.

[The court]: And the [c]ourt ordered amount of $100 a month.

N.T. Contempt Hr’g, 4/24/17, at 2-3 (ellipses in original).

The trial court subsequently entered the following order clarifying the

inaudible portion of the hearing:

The record in this matter is AMENDED such that, in the portion of
the April 24, 2017 transcript where [Appellant’s] statement is.
“inaudible,” the record shall reflect that the [Appellant] stated that
no one came that day with any money to pay his fines and costs,
that he had received a letter from a friend stating that he had a
possible job constructing pallets available in Reading, and that he
could continue to sell his blood plasma to make some money.

Order, 8/22/17.

On April 25, 2017, the trial court entered an order holding Appellant in

contempt and sentencing him to thirty days’ imprisonment with a total purge

condition of $250. The order did not set forth any legal reasoning, findings of

fact, or conclusions of law.

On May 2, 2017, Appellant filed a counseled petition for a writ of habeas

corpus, which alleged, among other reasons, that his imprisonment was

unlawful because the trial court failed to (1) find he had the financial resources

to pay the fines and costs but willfully failed to do so, and (2) appoint counsel.

Appellant’s Pet. for Writ of Habeas Corpus, 5/2/17, at 4-6. Appellant,

however, was released from prison on May 4, 2017, and thus Appellant filed

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a notice of withdrawal of his petition for writ of habeas corpus on May 9, 2017.

Appellant’s Notice of Withdrawal of Pet. for Writ of Habeas Corpus, 5/9/17.

Appellant timely appealed from the April 25, 2017 order on May 22,

2017, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court responded with two-sentence order merely stating that “upon

consideration” of Appellant’s Rule 1925(b) statement, “we hereby affirm our

Order dated April 24, 2017,” which was entered on April 25, 2017. Order,

8/1/17.2 The second sentence of the court’s order instructed the clerk of

courts to transmit the record to this Court. Id.

Appellant raises the following issues, which we have reordered as

follows:

1. Did the trial court err by incarcerating [Appellant] for civil
contempt without either providing him with counsel or obtaining a
knowing, intelligent, and voluntary waiver of that right?

2. Did the trial court err by holding [Appellant] in civil contempt
for failure to pay his court fines and costs and incarcerating him
without inquiring into his ability to pay?

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2 The trial court’s order does not comply with Pa.R.A.P. 1925(a), which states:

the judge who entered the order giving rise to the notice of appeal,
if the reasons for the order do not already appear of record, shall
forthwith file of record at least a brief opinion of the reasons for
the order, or for the rulings or other errors complained of, or shall
specify in writing the place in the record where such reasons may
be found.

Pa.R.A.P. 1925(a)(1).

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3. Did the trial court abuse its discretion by holding [Appellant] in
contempt when the evidence on the record demonstrated that he
was unable to pay?

4. Did the trial court abuse its discretion by setting a dollar amount
by which [Appellant] could purge his contempt and be released
from incarceration without finding beyond a reasonable doubt that
[Appellant] had the present ability to comply with the Court’s
order and meet that purge condition?

5. Did the trial court err by placing [Appellant] on a payment plan
without inquiring into his financial circumstances and determining
that the ordered payment was within his means and did not
unreasonably impose a financial hardship?

Appellant’s Brief at 5 (issues reordered to facilitate disposition).3

I. Appellant’s Right to Counsel

In support of Appellant’s first issue, he raises three arguments. We

summarize two, as they are dispositive. Appellant initially acknowledges that

because this is a civil contempt proceeding, he has no right to counsel under

the Sixth Amendment of the United States Constitution. 4 Appellant’s Brief at

19. Instead, Appellant asserts, he has right to counsel under the Due Process

Clause of the Fourteenth Amendment.5 Id. Appellant suggests that under

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3 The Pennsylvania Association of Criminal Defense Lawyers, Pennsylvania
Legal Aid Network, and National Coalition for a Civil Right to Counsel have
filed amicus briefs raising arguments in support of Appellant.
4 “In all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
5 In pertinent part, it provides that “nor shall any state deprive any person of
life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1.

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the three-factor balancing test set forth in Turner v. Rogers, 564 U.S. 431

(2011), he should have been appointed counsel. Appellant’s Brief at 20-21.

For the first factor, he points out that “loss of liberty through imprisonment”

alone warrants the right to counsel. Id. at 21. With respect to the second

factor, Appellant contends that without appointed counsel, “there is a

substantial risk that unrepresented individuals who have not willfully refused

to pay will be wrongfully held in contempt and incarcerated.” Id. Lastly, he

asserts that there are no countervailing interests that would justify not

appointing counsel. Id. at 21-22. Appellant points out the asymmetry

between (1) the Commonwealth with its expertise and resources, and (2) an

uncounseled defendant charged with contempt for nonpayment. Id. at 22.

Appellant maintains appointment of counsel would promote fairness in the

proceedings and ameliorate the asymmetry. Id.

The Commonwealth acknowledges that “counsel must be assigned” in a

civil contempt proceeding for nonpayment of fines and costs because there is

a likelihood of imprisonment. Commonwealth’s Brief at 5, 9.6 The

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6 Both Appellant and the Commonwealth agree that Appellant was subject to
an order of civil contempt. See Appellant’s Brief at 12; Commonwealth’s Brief
at 5. We acknowledge that some caselaw suggests that contempt from a
failure to pay court-ordered fines and costs could be criminal in nature. But
because the parties agree the contempt is civil in nature and have not argued
otherwise, we decline to define the underlying contempt order.

We add that although court-imposed fines and costs are not for the
benefit of a private party, the typical purpose of a contempt proceeding for

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Commonwealth does not address the Turner factors discussed by Appellant.

The Commonwealth, although conceding that Appellant is entitled to counsel,

nonetheless argues, as discussed in further detail below, that Appellant waived

his right to counsel. Id. at 10.7

Ordinarily, a failure to preserve the arguments raised on appeal would

raise concerns about appellate waiver. See generally 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.”). But our courts have long “recognized that the failure

to preserve an issue for appeal may be excused when a strong public interest

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failure to pay fines and costs would be to compel the contemnor to comply
with the court’s order and not punish the contemnor for disobeying the order
imposing fines and costs. See Commonwealth v. Rosser, 407 A.2d 857,
860 (Pa. Super. 1979) (concluding that the Commonwealth has two
remedies—contempt and a civil proceeding—for a failure to pay fines and
costs, and the Commonwealth elected “civil contempt, for the dominant
purpose was prospectively to coerce [the defendant] as the contemnor to
comply with an order of the court, not to punish him for disobedience of the
order” (citations and footnote omitted)). But a contemnor’s ability to comply
with a payment order may “mark[] a dividing line between civil and criminal
contempt,” because an incorrect classification of the contempt proceeding as
civil “can increase the risk of wrongful incarceration by depriving the
defendant of the procedural protections (including counsel) that the
Constitution would demand in a criminal proceeding.” Turner, 564 U.S. at
445. Given the absence of counseled argument on the issue, we do not
address whether the proceeding should be labeled criminal.
7 The Commonwealth does not argue that Appellant failed to raise his
arguments to the trial court. Even if it had, we would hold that the
Commonwealth waived any such waiver argument. See Commonwealth v.
Williams, 141 A.3d 440, 464 n.23 (Pa. 2016) (stating the “Commonwealth’s
waiver argument . . . is waived, as the Commonwealth raised it for the first
time on appeal”).

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outweighs the need to protect the judicial system from improperly preserved

issues.” Klein v. Com., State Emps.’ Ret. Sys., 555 A.2d 1216, 1220 n.6

(Pa. 1989) (plurality). One such strong public interest is whether a party is

entitled to counsel in a civil contempt proceeding. See Turner, 564 U.S. at

438 (resolving right to counsel issue that was raised for the first time on direct

appeal in state court). Additionally, a failure by an appellant to object to the

trial court’s compliance with procedural rules may, under appropriate

circumstances, be raised for the first time on appeal. See Bell Fuel Corp. v.

Cattolico, 544 A.2d 450, 454 n.3 (Pa. Super. 1988) (refusing to conclude

appellant “waived an objection to the trial court following a procedure which

was never fully described and which was both unanticipated and incorrect”).

II. Right to Counsel Under the Due Process Clause

Having resolved that the issue of whether Appellant is entitled to court-

appointed counsel is properly before this Court, we discuss Turner. In

Turner, the United States Supreme Court addressed “whether the Fourteenth

Amendment’s Due Process Clause requires the State to provide counsel (at a

civil contempt hearing) to an indigent person potentially faced with such

incarceration.” Turner, 564 U.S. at 435.

In that case, the defendant was subject to a South Carolina family court

order requiring him to pay $51.73 per week in child support. Turner, 564

U.S. at 436. The defendant failed to comply, and thus the court held a civil

contempt hearing, at which both parties appeared without counsel. Id. at

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437. The court advised the defendant that he was $5,728.76 in arrears and

gave him an opportunity to speak,8 after which the court held him in contempt.

Id.

The trial court in Turner sentenced the defendant to twelve months’

imprisonment with a purge condition of having a “zero balance” on or before

his release. Turner, 564 U.S. at 437. “The court made no express finding

concerning [the defendant’s] ability to pay his arrearage . . . . Nor did the

judge ask any followup questions or otherwise address the ability-to-pay

issue.” Id. at 437-48. The court’s contempt order did not indicate whether

the defendant had the ability to make the support payments. Id. at 438.

The defendant obtained pro bono counsel and appealed to the South

Carolina Supreme Court on the basis that the Federal Constitution “entitled

him to counsel at his contempt hearing.” Turner, 564 U.S. at 438. After the

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8 The defendant in Turner stated:

Well, when I first got out, I got back on dope. I done meth,
smoked pot and everything else, and I paid a little bit here and
there. And, when I finally did get to working, I broke my back,
back in September. I filed for disability and SSI. And, I didn’t get
straightened out off the dope until I broke my back and laid up for
two months. And, now I’m off the dope and everything. I just
hope that you give me a chance. I don’t know what else to say.
I mean, I know I done wrong, and I should have been paying and
helping her, and I’m sorry. I mean, dope had a hold to me.

Turner, 564 U.S. at 437.

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defendant completed his sentence, the state Supreme Court held that he had

no right to counsel. Id.

The United States Supreme Court granted the defendant’s petition for

certiorari. First, the Court held that although the defendant had completed

his prison sentence, the case was not moot because the issue was capable of

repetition while evading review. Turner, 564 U.S. at 439.

Second, the Court addressed whether the Due Process Clause gave an

indigent defendant a right to appointed counsel. Turner, 564 U.S. at 441.

The Court initially categorized the contempt proceeding as a civil proceeding.

Id. at 444. The Turner Court then examined three factors relevant to

formulating the “specific safeguards [that] the Constitution’s Due Process

Clause requires in order to make a civil proceeding fundamentally fair.” Id.

(citation omitted). Those factors are “(1) the nature of the private interest

that will be affected, (2) the comparative risk of an erroneous deprivation of

that interest with and without additional or substitute procedural safeguards,

and (3) the nature and magnitude of any countervailing interest in not

providing additional or substitute procedural requirements.” Id. at 444-45

(quotation marks, citations, and brackets omitted).

A. The Private Interest of Freedom from Bodily Restraint and the Risk of
Erroneous Deprivation of that Freedom

The Turner Court noted that the potential for imprisonment weighs

heavily in favor of a right to counsel:

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The “private interest that will be affected” argues strongly for the
right to counsel that [the defendant] advocates. That interest
consists of an indigent defendant’s loss of personal liberty through
imprisonment. The interest in securing that freedom, the freedom
from bodily restraint, lies at the core of the liberty protected by
the Due Process Clause. And we have made clear that its
threatened loss through legal proceedings demands due process
protection.

Given the importance of the interest at stake, it is obviously
important to assure accurate decisionmaking in respect to the key
“ability to pay” question. Moreover, the fact that ability to comply
marks a dividing line between civil and criminal contempt,
reinforces the need for accuracy. That is because an incorrect
decision (wrongly classifying the contempt proceeding as civil) can
increase the risk of wrongful incarceration by depriving the
defendant of the procedural protections (including counsel) that
the Constitution would demand in a criminal proceeding.

Turner, 564 U.S. at 445 (citations and some quotation marks omitted).

B. Nature and Magnitude of Three Countervailing Interests

The Turner Court then summarized three interests for not mandating

court-appointed counsel for an indigent defendant:

First, the critical question likely at issue in these cases concerns .
. . the defendant’s ability to pay. That question is often closely
related to the question of the defendant’s indigence. But when
the right procedures are in place, indigence can be a question that
in many—but not all—cases is sufficiently straightforward to
warrant determination prior to providing a defendant with counsel,
even in a criminal case. Federal law, for example, requires a
criminal defendant to provide information showing that he is
indigent, and therefore entitled to state-funded counsel, before
he can receive that assistance.

Second, sometimes, as here, the person opposing the defendant
at the hearing is not the government represented by counsel but
the custodial parent un represented by counsel. . . .

A requirement that the State provide counsel to the noncustodial
parent in these cases [i.e., cases in which the custodial parent is

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not represented by counsel,] could create an asymmetry of
representation that would alter significantly the nature of the
proceeding. Doing so could mean a degree of formality or delay
that would unduly slow payment to those immediately in need.
And, perhaps more important for present purposes, doing so could
make the proceedings less fair overall, increasing the risk of a
decision that would erroneously deprive a family of the support it
is entitled to receive. The needs of such families play an important
role in our analysis.

Third, as the Solicitor General points out, there is available a set
of substitute procedural safeguards, which, if employed together,
can significantly reduce the risk of an erroneous deprivation of
liberty. They can do so, moreover, without incurring some of the
drawbacks inherent in recognizing an automatic right to counsel.
Those safeguards include (1) notice to the defendant that his
ability to pay is a critical issue in the contempt proceeding; (2)
the use of a form (or the equivalent) to elicit relevant financial
information; (3) an opportunity at the hearing for the defendant
to respond to statements and questions about his financial status,
(e.g., those triggered by his responses on the form); and (4) an
express finding by the court that the defendant has the ability to
pay. [The Government] does not claim that they are the only
possible alternatives, and this Court’s cases suggest, for example,
that sometimes assistance other than purely legal assistance
(here, say, that of a neutral social worker) can prove
constitutionally sufficient. But the Government does claim that
these alternatives can assure the fundamental fairness of the
proceeding even where the State does not pay for counsel for an
indigent defendant.

Turner, 564 U.S. at 446-48 (some quotation marks and citations omitted).

C. Indigent Contemnor Has No Automatic Right to Court-Appointed Counsel
Under the Due Process Clause

After balancing the factors, the United States Supreme Court held the

following:

In our view, a categorical right to counsel in proceedings of the
kind before us would carry with it disadvantages (in the form of
unfairness and delay) that, in terms of ultimate fairness, would
deprive it of significant superiority over the alternatives that we

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have mentioned. We consequently hold that the Due Process
Clause does not automatically require the provision of counsel
at civil contempt proceedings to an indigent individual who is
subject to a child support order, even if that individual faces
incarceration (for up to a year). In particular, that Clause does
not require the provision of counsel where the opposing parent or
other custodian (to whom support funds are owed) is not
represented by counsel and the State provides alternative
procedural safeguards equivalent to those we have mentioned
(adequate notice of the importance of ability to pay, fair
opportunity to present, and to dispute, relevant information, and
court findings).

Turner, 564 U.S. at 448 (first emphasis added). Thus, notwithstanding the

potential for one year of imprisonment, the Supreme Court declined to

mandate court-appointed counsel if the opposing party was not represented

by counsel and there were alternative procedural safeguards. Id. But the

Turner Court declined to “address civil contempt proceedings where the

underlying child support payment is owed to the State, [because] [t]hose

proceedings more closely resemble debt-collection proceedings. The

government is likely to have counsel or some other competent

representative.” Id. at 449 (emphasis added).

D. Other State Cases Addressing Contempt for Failure to Pay Court-Ordered
Costs to the State

In Ex parte Gonzales, 945 S.W.2d 830 (Tex. Crim. App. 1997) (en

banc), a case that predates Turner, the Texas Court of Criminal Appeals

addressed whether a defendant was entitled to court-appointed counsel for

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costs payable to the state.9 In Gonzales, the defendant was convicted and

sentenced, expressed her intent to appeal, and requested court-appointed

counsel. Id. at 831. At an indigency hearing, the defendant appeared pro

se, and the trial court found she had limited income. Id. The court ordered

the pro se defendant to pay $50 per week to the court for court-appointed

appellate counsel and a statement of facts prepared by the court reporter. Id.

The defendant, however, failed to make the court-ordered payments,

and the court held a contempt hearing. Gonzales, 945 S.W.2d at 832. At

the hearing, the pro se defendant explained why she was not making the

payments: “she was employed at Taco Bell working eight hours a day, six

days a week. She was living by herself and paying rent on a house her father

vacated.” Id. The court stated that she was not indigent and would not

appoint her an attorney. Id.

According to the Gonzales Court:

The record of the hearing demonstrates that [the defendant] did
not understand the proceeding and repeatedly asked the judge for
explanations. [The defendant] did not put on any evidence nor
did she argue in her own behalf. The judge held [the defendant]
in contempt and sentenced her to ninety days in jail. The judge
provided that [the defendant’s] sentence would be suspended
after thirty days if [she] paid . . . $750.00, the amount past due
on her court ordered payments.

Gonzales, 945 S.W.2d at 832.

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9 The Texas Court of Criminal Appeals is the court of last resort for criminal
cases.

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On appeal, the defendant claimed, among other things, that “the trial

court’s failure to advise her of her right to counsel at the contempt hearing

deprived her of due process under” the Sixth and Fourteenth Amendments of

the United States Constitution, as well as similar provisions in the Texas

Constitution.10 Gonzales, 945 S.W.2d at 834-35. The Court acknowledged

that it had not previously resolved whether a defendant had a right to counsel

at a contempt hearing, but noted that other state courts have addressed the

“issue in the context of a contempt hearing resulting from failure to pay child

support.” Id. at 835.

After summarizing relevant Texas law, the Gonzales Court stated that

because “contempt proceedings are quasi-criminal in nature . . . proceedings

in contempt cases should conform as nearly as practicable to those in criminal

cases.” Gonzales, 945 S.W.2d at 836 (citation omitted). The Court further

held that

the right to counsel turns on whether deprivation of liberty may
result from a proceeding, not upon its characterization as
“criminal” or “civil.” “No person may be deprived of his liberty
who has been denied the assistance of counsel . . . .”
Argersinger v. Hamlin, 407 U.S. 25, 37-38, 92 S. Ct. 2006,
2013, 32 L. Ed. 2d 530 (1972). Contemnors are entitled to
procedural due process protections before they may be held in
contempt; this is especially true when the results of a contempt
proceeding may lead to incarceration. We note that several
federal circuits addressing this issue have held that a defendant
in a contempt proceeding who faces imprisonment as a result of
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10We note that the defendant in Gonzales raised this issue for the first time
on appeal.

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the proceeding is entitled to representation. See, e.g., United
States v. Anderson, 553 F.2d 1154, 1155 (8th Cir. 1977)
(stating due process requires right to counsel be extended to
contempt proceeding where defendant may be imprisoned); In re
Di Bella, 518 F.2d 955, 959 (2nd Cir. 1975) (holding defendant
entitled to counsel in civil contempt proceeding where defendant
faced with prospect of imprisonment); see also United States
v. Bobart Travel Agency, Inc., 699 F.2d 618, 620 (2nd Cir.
1983) (recognizing “contempt is an area of the law in which
counsel’s advice is often indispensable”); Brooks v. United
States, 686 A.2d 214, 233 (D.C. App. 1996) (Ruiz, J., concurring)
(due process requires assistance of counsel in contempt
proceedings that result in incarceration); Wisconsin v. Pultz,
206 Wis. 2d 111, 556 N.W.2d 708, 717 (1996) (trial court must
advise pro se defendant in contempt proceeding which might
result in incarceration that he is entitled to be represented by an
attorney, and if found indigent, entitled to appointment of
counsel).

Id. at 836 (some quotation marks, brackets, and citations omitted).

The Gonzales Court, based on these precedents, held that because the

defendant was held in contempt and jailed due to her failure to make court-

ordered payments, her liberty was deprived. Gonzales, 945 S.W.2d at 836.

In conjunction with Texas legal authorities providing that criminal contemnors

are entitled to legal representation, the Court held that the defendant “had a

right to be represented by counsel at the contempt proceeding.” Id. The

Gonzales Court thus ordered that the defendant be released because the

conviction for contempt and resulting incarceration was void.

In State v. Stone, 268 P.3d 226 (Wash. Ct. App. 2012), the trial court,

following a guilty plea to possession of narcotics and theft, imposed on the

defendant a jail sentence and a “legal financial obligation” (LFO) of $2,860,

which primarily was comprised of various court costs. Id. at 228. The

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resulting procedural history is lengthy but in sum, the defendant appeared

without counsel at several hearings regarding his failure to make LFO

payments. Id. at 228-29.

Eventually, the trial court appointed counsel for the defendant. Stone,

268 P.3d at 229. The court then held a hearing at which it found that the

defendant willfully failed to pay, but made no findings on the defendant’s

financial ability to pay the LFOs. Id. at 230. The defendant appealed.

The Stone Court initially held that the proceedings to enforce payment

of the LFOs, under Washington law, were criminal in nature. Stone, 268 P.3d

at 230. The Court acknowledged that indigent defendants had a right to

appointed counsel for probation and parole revocation hearings, but that right

was derived not from “the right of an accused to counsel in a criminal

prosecution, but . . . the more limited due process right of one who is a

probationer or parolee only because he has been convicted of a crime.” Id.

at 233 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973)). The

existence of that right to appointed counsel, the Court concluded, must be

determined on a case-by-case basis by the trial court. Id.

The Stone Court, addressing the case at hand—involving LFO

enforcement proceedings—noted that such proceedings, like probation and

parole revocation hearings, occur post-prosecution. Stone, 268 P.3d at 233.

The Stone Court held that under Washington law, “LFO enforcement

proceedings subject the convicted felon to a modification of his original

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sentence—i.e., imprisonment—and trigger due process concerns.” Id.

(footnote omitted). Accordingly, the Court examined whether the defendant

was entitled to court-appointed counsel. Id. at 234.

The Stone Court first discussed Tetro v. Tetro, 544 P.2d 17 (Wash.

1975), a Washington Supreme Court case that resolved “whether the right to

appointed counsel for indigent individuals extended to contempt proceedings

for failure to pay child support.” Stone, 268 P.3d at 234. In holding that

such individuals had a right to court-appointed counsel, the Court in Tetro

noted that the label given to a particular proceeding—whether criminal, quasi-

criminal, or civil—was a meaningless distinction. Id. Rather, the Tetro Court

observed, the critical inquiry is whether the deprivation of liberty involved

immediate imprisonment. Id. (citing Tetro, 544 P.2d at 20 n.1). At the LFO

enforcement proceeding, the Stone Court acknowledged that the defendant

(1) faced immediate imprisonment and (2) had to argue against imprisonment

against the prosecutor, who was trained as an attorney. Id. at 235. Thus,

the Court held the defendant had a due process right to appointed counsel.

Id.

E. Due Process Right to Counsel for Civil Contempt Proceeding Involving
Court-Ordered Fines and Costs Payable to the Commonwealth

Here, we have facets from Turner, Gonzales, and Stone. Initially, the

question of whether this proceeding is civil or criminal in nature is not before

this Court. Both parties have agreed that the contempt proceeding is civil in

nature and have not presented any argument suggesting otherwise. See

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Appellant’s Brief at 12; Commonwealth’s Brief at 5. Furthermore, no party

disputes that Appellant’s affected private interest is the freedom from

imprisonment.

Appellant’s ability to pay, like the defendant’s ability in Turner, is a

question that must be answered with utmost accuracy. See Turner, 564 U.S.

at 445. Unlike in Turner, the party opposing the defendant is the

Commonwealth, who was represented by a probation officer. See id. at 446-

48. The Commonwealth also has several relevant statutes and rules that

address Appellant’s financial resources and therefore could potentially reduce

or eliminate any possibility of erroneous imprisonment. See id.; see

generally 42 Pa.C.S. § 9730; 42 Pa.C.S. § 9772; Pa.R.Crim.P. 706. In

accordance with those procedural safeguards, a court’s findings of fact

regarding the contemnor’s financial ability to pay would seemingly assure the

fundamental fairness of any contempt proceeding without imposing any

requirement for court-appointed counsel. See Turner, 564 U.S. at 446-48.

Thus, a trial court’s adherence to these preexisting safeguards would appear

to obviate any automatic right to counsel.11 See id.

____________________________________________

11 As we discuss below, the instant trial court did not comply with these
safeguards. But our current inquiry is limited to whether Appellant has a due
process right to counsel, with one factor being the existence of additional or
substitute procedural safeguards. The Turner multi-factor framework
necessarily presumes proper employment of those safeguards. See Turner,
564 U.S. at 447.

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But unlike Turner, and more akin to Gonzales and Stone, the fines

and costs are owed to the Commonwealth and not a private party. See

Turner, 564 U.S. at 448; Gonzales, 945 S.W.2d at 832; Stone, 268 P.3d at

228.12 Thus, the Turner Court’s reluctance to impose an automatic right to

court-appointed counsel for an indigent defendant must be viewed against the

backdrop of that case’s unique facts. See Turner, 564 U.S. at 449 (noting

that when a payment is owed to the state, a civil contempt proceeding for

failure to pay is akin to a debt-collection hearing).

Here, like the defendant in Stone, Appellant appeared at a contempt

proceeding in which the court could have imprisoned him for contempt

immediately.13 See Stone, 268 P.3d at 235. As both the Stone and

Gonzales Courts observed, several courts have held that an indigent

defendant faced with incarceration at a contempt proceeding is entitled to

counsel. See Gonzales, 945 S.W.2d at 836 (citing cases); Stone, 268 P.3d

at 234.

Furthermore, Appellant had to represent himself in a proceeding in

which the Commonwealth was represented by a probation officer. Although a

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12 “We may consider the decisions of other states’ courts, but they are not
binding on us.” Commonwealth v. Luketic, 162 A.3d 1149, 1157 n.9 (Pa.
Super. 2017).
13 As noted above, Appellant had failed to make bail, and thus was already in
prison.

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probation officer is not an attorney, the Commonwealth was nonetheless

advocating that Appellant be held in contempt, which raised a likelihood of

imprisonment. Cf. Stone, 268 P.3d at 235.

After weighing the nature and magnitude of these interests, we decline

to impose an automatic right to court-appointed counsel for all civil contempt

proceedings involving an indigent defendant’s failure to pay court-imposed

fines and costs. Sufficient procedural safeguards exist, such as 42 Pa.C.S. §

9730, 42 Pa.C.S. § 9772, and Pa.R.Crim.P. 706, that would prevent any

erroneous imprisonment—assuming the trial court complied with them. While

we are cognizant of the asymmetry present between an indigent defendant

acting pro se and the Commonwealth and its resources, absent any court

finding of a likelihood of imprisonment, mandating a right to court-appointed

counsel seems premature.

Rather, as the Commonwealth has acknowledged, see Commonwealth’s

Brief at 9, an indigent defendant’s right to court-appointed counsel is triggered

in any proceeding in which the court finds there is a likelihood of

imprisonment.14 Thus, we hold that upon the trial court’s determination at

____________________________________________

14 We note the parallel to Pa.R.Crim.P. 122(A)(1), which provides that
“[c]ounsel shall be appointed . . . in all summary cases, for all defendants who
are without financial resources or who are otherwise unable to employ counsel
when there is a likelihood that imprisonment will be imposed[.]” Pa.R.Crim.P.
122(A)(1). The comment to the Rule explains that “in summary cases, [this
rule] requires a pretrial determination by the issuing authority as to whether

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the civil contempt hearing that there is a likelihood of imprisonment for

contempt and that the defendant is indigent, the court must appoint counsel

and permit counsel to confer with and advocate on behalf of the defendant at

a subsequent hearing. An indigent defendant has the option of knowingly,

intelligently, and voluntarily waiving that right to appointed counsel. See

generally Pa.R.Crim.P. 121 (identifying information a court should elicit from

the defendant to ensure a proper waiver of the right to counsel). Here,

because Appellant was imprisoned, he should have been afforded the

opportunity to demonstrate entitlement to court-appointed counsel.

F. Waiver of Right to Counsel

Having concluded that at a civil contempt proceeding for failure to pay

court-ordered fines and costs, an indigent defendant has a right to appointed

counsel upon a determination of a likelihood of imprisonment, we briefly

address the Commonwealth’s allegation of waiver. The Commonwealth notes

that Appellant was advised of his right to counsel. Commonwealth’s Brief at

10.15 It posits that because Appellant never requested a public defender and

____________________________________________

a jail sentence would be likely in the event of a finding of guilt in order to
determine whether trial counsel should be appointed to represent indigent
defendants.” Pa.R.Crim.P. 122 cmt. “If there is any doubt, the issuing
authority can seek the advice of the attorney for the Commonwealth, if one is
prosecuting the case, as to whether the Commonwealth intends to recommend
a jail sentence in case of conviction.” Id.
15 The Commonwealth’s brief does not acknowledge that Appellant was
notified of his right to counsel at the April 6, 2017 bench warrant hearing and

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did not retain private counsel, he knowingly, intelligently, and voluntarily

waived his right to counsel. Id. We disagree. The record simply does not

reflect Appellant knowingly, intelligently, and voluntarily waived his right to

counsel. See Rodriguez v. Rodriguez, 600 A.2d 589, 551-52 (Pa. Super.

1991) (holding putative parent challenging paternity had constitutional right

to counsel and never knowingly and intelligently waived right to counsel); see

generally Pa.R.Crim.P. 121.

III. Inquiring into the Potential Contemnor’s Financial Ability to Pay

Having resolved that an indigent defendant may have a right to court-

appointed counsel, we next address whether the trial court erred by holding

Appellant in contempt. Ordinarily, having reversed on Appellant’s first issue,

we need not address Appellant’s remaining issues. See Commonwealth v.

Sodomsky, 137 A.3d 620, 629 (Pa. Super.), appeal denied, 158 A.3d 1236

(Pa. 2016), cert. denied, 137 S. Ct. 1205 (2017). We deem it appropriate,

however, to address Appellant’s issue to forestall any potential issues on

remand.

Appellant argues that the trial court abused its discretion in holding him

in contempt by failing to consider his ability to pay before opining that his

failure to pay was “willful.” Appellant’s Brief at 13. In Appellant’s view, the

____________________________________________

not at the April 24, 2017 contempt hearing, which resulted in his
imprisonment.

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court, although asking whether anyone came to pay the outstanding fines on

his behalf, failed to adequately inquire into his financial status. Id. at 16.

Appellant maintains that he attempted to explain he lacked income, sold his

blood for money, and potentially had a job in the near future. Id.

The Commonwealth argues that the trial court did not err by holding

Appellant in contempt. Commonwealth’s Brief at 5. Pennsylvania Rule of

Criminal Procedure 706 and pertinent caselaw, the Commonwealth asserts,

do not provide “guidance on how to determine whether a defendant is willfully

refusing to pay their fines and costs.” Id. at 7-8. According to the

Commonwealth, the trial court concluded Appellant “must have had some

ability to pay his fines and costs,” as he noted he could sell his blood, had a

potential job, and knew someone in Reading, Pennsylvania, that could pay for

bail.16 Id. at 8. Based on these facts, the Commonwealth opines the trial

court did not abuse its discretion because Appellant established “some ability

to pay his fines and costs and willfully refused to do so.” Id. We conclude

Appellant has established that the trial court erred.

The standard of review for an order finding a party in contempt is an

abuse of discretion. Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa.

2003). “Discretion is abused when the course pursued represents not merely

____________________________________________

16As set forth above, Appellant did not state at the contempt hearing that he
knew someone in Reading that could pay for bail—that testimony occurred at
the prior bench warrant hearing. N.T. Bench Warrant Hr’g, 4/6/17, at 4.

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an error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied[.]” Id. at 762 (citations omitted).

By way of background, Section 9728 of the Sentencing Code discusses

the collection of fines and costs:

(1) Except as provided in subsection (b)(5),[17] all restitution,
reparation, fees, costs, fines and penalties shall be collected by
the county probation department or other agent designated by the
county commissioners of the county with the approval of the
president judge of the county for that purpose in any manner
provided by law. However, such restitution, reparation, fees,
costs, fines and penalties are part of a criminal action or
proceeding and shall not be deemed debts.

42 Pa.C.S. § 9728(a)(1).

Section 9730, in turn, sets forth the procedures for a failure to pay:

(b) Procedures regarding default.—

(1) If a defendant defaults in the payment of a fine, court costs or
restitution after imposition of sentence, the issuing authority or a
senior judge or senior magisterial district judge appointed by the
president judge for the purposes of this section may conduct a
hearing to determine whether the defendant is financially able to
pay.

(2) If the issuing authority, senior judge or senior magisterial
district judge determines that the defendant is financially able to
pay the fine or costs, the issuing authority, senior judge or senior
magisterial district judge may turn the delinquent account over to
a private collection agency or impose imprisonment for
nonpayment, as provided by law.

____________________________________________

17This subsection addresses deductions from an offender’s personal financial
account with the Department of Corrections and is not pertinent here. See
generally 42 Pa.C.S. § 9728(b)(5).

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(3) If the issuing authority, senior judge or senior magisterial
district judge determines that the defendant is without the
financial means to pay the fine or costs immediately or in a single
remittance, the issuing authority, senior judge or senior
magisterial district judge may provide for payment in installments.
...

(4) A decision of the issuing authority, senior judge or senior
magisterial district judge under paragraph (2) or (3) is subject to
section 5105 (relating to right to appellate review).

42 Pa.C.S. § 9730(b)(1)-(3).18

The Pennsylvania Commonwealth Court has explained the procedure for

imprisoning a defaulting offender as follows:

Before an offender can be confined solely for nonpayment
of financial obligations he or she must be given an
opportunity to establish inability to pay. If the offender
establishes indigence, he or she will be allowed to make payments
in reasonable installments. Thus, if an offender defaults in the
payment of a fine or court costs after imposition of sentence, the
fines and costs court may conduct a hearing to ascertain
information regarding an offender’s financial resources. 42
Pa.C.S. § 9730(b)(1). If the fines and costs court determines the
offender is able to pay fines or costs, it may turn the delinquent
account over to a private collection agency or impose
imprisonment for nonpayment, as provided by law. 42 Pa.C.S. §
9730(b)(2).

Imprisonment for nonpayment of financial obligations may [also]
be imposed on a finding of contempt for failure to pay a fine, 42
____________________________________________

18 The Pennsylvania Supreme Court has apparently construed the statute as
requiring a hearing on the defendant’s ability to pay. See Buck v. Beard,
879 A.2d 157, 161 (Pa. 2005) (noting that “pursuant to Section 9730(b) of
the Sentencing Code, when a defendant is in default, the court of common
pleas conducts a hearing to determine the defendant’s ability to pay, and then
may order an appropriate payment plan. Section 9730(b) directs the court to
consider the defendant’s financial resources”).

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J-A04022-18

Pa.C.S. § 9772,[19] on a finding of contempt for failure to make
restitution, 18 Pa.C.S. § 1106,[20] or on a finding of violation of a
specific condition of supervision. 42 Pa.C.S. § 9773. Each
proceeding requires a hearing.

George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003) (emphasis added

and some citations omitted).

If . . . failure to pay sentenced financial obligations exposes an
offender to initial confinement, additional confinement or
increased conditions of supervision, a hearing is warranted.
Stated differently, if an offender is notified that he or she is
charged with contempt or with probation or parole violations as a
result of failure to pay fines, costs or restitution, the offender
should be afforded a hearing.

Id.

Pennsylvania Rule of Criminal Procedure 706 similarly bars

imprisonment unless the court conducts a hearing and ascertains that the

defendant has the financial ability to pay:

____________________________________________

19 In relevant part, Section 9772 states as follows:

Unless there is proof that failure to pay a fine or that portion of
the fine that is due is excusable, the court may after a hearing
find the defendant guilty of contempt and sentence him to not
more than six months imprisonment, if a term of confinement of
that amount could have been imposed for the offense charged.

42 Pa.C.S. § 9772.
20 Section 1106(f), in pertinent part, states “[u]pon such notice of failure to
make restitution, or upon receipt of the contempt decision from a magisterial
district judge, the court shall order a hearing to determine if the offender is in
contempt of court or has violated his probation or parole.” 18 Pa.C.S. §
1106(f).

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J-A04022-18

(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.

(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 . . . .

(C) 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.

Pa.R.Crim.P. 706(A)-(C).21

Initially, we acknowledge that the trial court did not specify the

particular framework it was proceeding under, e.g., 42 Pa.C.S. § 9730, 42

Pa.C.S. § 9772, or Pa.R.Crim.P. 706. The court’s lack of specificity, however,

does not inhibit our review because 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. See 42 Pa.C.S. § 9730 (stating

imprisonment for nonpayment must be pursuant to law); 42 Pa.C.S. § 9772

(explaining imprisonment for nonpayment must occur after a hearing and a

determination that the defendant’s failure to pay was not excusable);

____________________________________________

21 This rule of criminal procedure would seem to suggest that a finding of
contempt due to a failure to pay court-ordered fines and costs would be
criminal in nature.

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Pa.R.Crim.P. 706 (specifying that a court shall not imprison without a hearing

and a finding that the defendant had a financial ability to pay).

Here, the trial court failed to make any findings of fact on Appellant’s

ability to pay prior to imprisoning him. See 42 Pa.C.S. § 9730(b)(2); 42

Pa.C.S. § 9772; Pa.R.Crim.P. 706. Although Appellant indicated that he could

sell his blood, the court failed to find—as our law requires—that he had the

present financial ability to pay the outstanding fines and costs such that

imprisonment was warranted.22 Order, 8/22/17; see 42 Pa.C.S. § 9730(b)(2)

(court must comply with law prior to imprisoning defendant for nonpayment);

42 Pa.C.S. § 9772 (court cannot hold a defendant in contempt and imprison

defendant unless there is proof that the failure to pay fine was not excusable);

Pa.R.Crim.P. 706 (stating that unless a defendant is financially able, the court

“shall not” imprison a defendant for a failure to pay fines or costs). By

imprisoning Appellant without the required findings of fact of his financial

resources, the court failed to apply the law properly.23 See Bowden, 838

____________________________________________

22 We doubt the amount received from the sale of Appellant’s blood would
suffice to pay his outstanding fines and costs or the $250 purge condition.
23 We note that the National Task Force on Fines, Fees and Bail Practices has
drafted a useful summary articulating the procedure for collecting court-
imposed fines and costs. Nat’l. Task Force on Fines, Fees and Bail Practices,
Lawful Collection of Legal Financial Obligations (2017),
http://www.ncsc.org/~/media/Images/Topics/Fines%20Fees/BenchCard_FIN
AL_Feb2_2017.ashx. Page two of this document refers to a document titled,

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A.2d at 762. Thus, we vacate the order below and remand for a hearing on

Appellant’s financial means to pay the court-ordered fines and costs. If the

court determines at the civil contempt hearing that there is a likelihood of

imprisonment,24 then the court must ascertain whether Appellant is entitled

to court-appointed counsel, which, as we held above, he has a conditional

right to under the Due Process Clause of the United States Constitution.25 In

light of the foregoing, we vacate the payment plan.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/21/2018

____________________________________________

Best Practices for Determining the Right to Counsel in Legal Financial
Obligation Cases, which has not yet been released.
24A finding of indigency would appear to preclude any determination that
Appellant’s failure to pay the court-ordered fines and costs was willful.
25 As we noted above, the parties did not argue that the underlying contempt
proceeding was not civil in nature. The issue of whether a contempt
proceeding for failure to pay court-ordered fines and costs is civil or criminal
is not properly before this Court.

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