J-S03026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD TOKARCIK, JR.
Appellant No. 948 WDA 2016
Appeal from the Order Dated June 13, 2016
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000049-2010
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED APRIL 27, 2017
Pro se Appellant, Richard Tokarcik, Jr., appeals from the order
imposing a payment plan for the remaining amount of his outstanding fines,
costs, and restitution. We affirm.
The facts and full procedural history underlying Appellant’s convictions
are unnecessary for our disposition. In pertinent part, on November 9,
2010, the trial court sentenced Appellant to an aggregate term of four
months to three years’ imprisonment and restitution of $3,392.89 to one
victim and $650 to another victim. Order, 11/9/10. Appellant was also
ordered to pay fines and costs. Id. The sentencing order provided that
“within ten (10) days from the date of parole, [Appellant] shall contact the
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*
Retired Senior Judge assigned to the Superior Court.
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Clearfield County Department of Probation Services, Collection Division, to
establish a monthly payment plan.” Id.
Appellant filed an untimely “supplemental post-sentence motion,”
which the trial court denied. Appellant did not file a direct appeal. He
subsequently filed two Post-Conviction Relief Act (PCRA) petitions, both of
which were denied.
Appellant remained incarcerated for his entire sentence, which ended
in October of 2013. On April 29, 2016, the Commonwealth filed a request to
hold him in contempt.1 The Commonwealth alleged that Appellant was in
arrears of $4,505.02 ($4,039.46 of which was restitution), and that
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1
Contempt may be criminal or civil:
The distinguishing characteristic between contempts which are
classified as criminal and those labeled civil is that the latter has
as its dominant purpose to enforce compliance with an order of
court for the benefit of the party in whose favor the order runs.
Criminal contempts, on the other hand, have as a dominant
purpose the vindication of the dignity and authority of the court
and to protect the interests of the general public. The dominant
purpose of coercion or punishment is expressed in the sanction
imposed. A civil adjudication of contempt coerces with a
conditional or indeterminate sentence of which the contemnor
may relieve himself by obeying the court’s order, while a
criminal adjudication of contempt punishes with a certain term of
imprisonment or a fine which the contemnor is powerless to
escape by compliance.
Grubb v. Grubb, 473 A.2d 1060, 1062 (Pa. Super. 1984) (citations,
quotation marks, and brackets omitted). In this case, the Commonwealth
did not specify whether it sought to have Appellant held in civil or criminal
contempt.
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Appellant had failed to contact the Department of Probation Services to set
up payment arrangements within ten days of his release. Allegations of
Contempt of Court, 4/29/16. Appellant appeared at the June 13, 2016
hearing, and the trial court issued the following order:
AND NOW, this 13th day of June, 2016, [Appellant]
having appeared before this Court on an allegation of
Contempt of Court; he having appeared without counsel
and the Court being satisfied he has knowingly, voluntarily
and intelligently waived his right to same, it is the ORDER
of this Court as follows:
1. Effective with the month of June 2016 and continuing
through and including November 2016, the Collection
Office shall receive no less than Twenty ($20.00) Dollars
per month, with the same to be received by no later than
the last business day of each month for which said
payment is due;
2. Effective with the month of December 2016 and
continuing thereafter until all amounts are paid in full, the
Collection Office shall receive no less than Fifty ($50.00)
Dollars per month, with the same to be received by no
later than the last business day of each month for which
said payment is due;
3. Effective June 2016 and continuing thereafter, the
[Appellant] shall perform no less than fifteen (15) hours of
community service per month under the standard terms
and conditions of the Clearfield County Community Service
Program.
Any failure to comply with the above provisions shall
result in automatic issuance of Bench Warrant without
further notice or hearing being provided.
It is the responsibility of [Appellant] to, at all times,
notify, in writing, the Adult Probation office of any new
phone number or address, or to communicate the same in
person to an employee of the Collections Office.
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It is the further ORDER of this Court that [Appellant]
notify the Department of Probation Services, Adult
Division, of any financial changes.
Order, 6/13/16.
On June 27, 2016, Appellant timely appealed to this Court and also
filed a motion to stay the order with the trial court. The trial court denied
the motion to stay as frivolous, and explained its reasons as follows:
1. Richard Tokarcik . . . who is no longer on parole or probation
appeared for a contempt hearing before the Court on June 13,
2016. The purpose of the hearing was to deal with [Appellant]’s
failure to make payments towards his outstanding fines, costs
and restitution. [Appellant] was not incarcerated at the time.
2. [Appellant]’s balance due at the time of the hearing was
$4,305.00; most of the same being for restitution.
3. [Appellant] had been released from a [Department of
Corrections] halfway house by his own admission in July, 2015.
Since that time no payments had been received other than
$200.00 paid May 17, 2016. This payment clearly had been
made due to [Appellant] receiving notice of the contempt
hearing, as the notice was dated April 28, 2016.
4. At [the] time of the contempt hearing, the Court inquired of
[Appellant] as to his ability to pay on amounts due. [Appellant]
suggested $20.00 per month at the current time, as he was
working part-time. He was hoping to obtain a full time shift and
being able to pay more later.
5. Accordingly, the Court ordered him to pay $20.00 per month
effective June, and through November, 2016. The monthly
payment was raised to $50.00 per month effective December,
2016.
6. As noted, the majority of the amounts due by [Appellant]
constituted restitution. The Clearfield County Adult Probation
Department has a Community Service Program wherein
defendants who owe restitution can perform community service
and receive $7.00 credit per hour towards the amount of
restitution owed. This option is for restitution payment only, and
is not available relative [to] fines and costs.
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7. [Appellant] was advised that he could do community service
to help pay on restitution. He agreed to do so and indicated that
all of his days were pretty much free. Accordingly, [Appellant]
was ordered to successfully complete no less than 15 hours of
community service per month.
8. At no time during the hearing did [Appellant] object to
performing community service. Nor did he indicate he had any
mental or physical disability, including but not limited to severe
depression, which would render him incapable of performing
community service.
9. [Appellant] has not preserved with the record objections to
his performance of community service.
Order, 7/14/16. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement. In lieu of a Pa.R.A.P. 1925(a) opinion, the trial court asked this
Court to consider its Order of July 14, 2016 as determinative. See Letter,
8/16/16.
In this appeal, Appellant raises the following issues, as stated in his
brief:
1) Whether judicial error occurred when the court ordered a
contempt order, when the facts show [Appellant] not in
contempt.
2) Whether judicial error occurred when the court failed to
ensure [Appellant] knowingly, intelligently and voluntarily
waived his right to counsel.
3) Whether counsel was ineffective during original plea and
sentencing, to allow [Appellant] to be sentenced unknowing of a
term in the sentence, of contacting the [C]learfield [C]ounty
[D]epartment of [P]robation after serving the entire sentence.
Appellant’s Brief at 2.
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Contempt
In his first issue, Appellant claims that the trial court erred by entering
a contempt order when he was not in fact in contempt. However, the trial
court did not hold Appellant in contempt. The trial court merely established
a payment plan for the restitution, fines, and costs Appellant already owed.
See Order, 6/20/16.
The Judicial Code sets forth specific procedures for when a defendant
defaults in payment of a fine, court costs, or restitution:
(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.
(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. In determining the appropriate installments, the
issuing authority, senior judge or senior magisterial district judge
shall consider the defendant’s financial resources, the
defendant’s ability to make restitution and reparations and the
nature of the burden the payment will impose on the defendant.
If the defendant is in default of a payment or advises the issuing
authority, senior judge or senior magisterial district judge that
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default is imminent, the issuing authority, senior judge or senior
magisterial district judge may schedule a rehearing on the
payment schedule. At the rehearing the defendant has the
burden of proving changes of financial condition such that the
defendant is without the means to meet the payment schedule.
The issuing authority, senior judge or senior magisterial district
judge may extend or accelerate the schedule, leave it unaltered
or sentence the defendant to a period of community service as
the issuing authority, senior judge or senior magisterial district
judge finds to be just and practicable under the circumstances.
42 Pa.C.S. § 9730(b).
Here, after the Commonwealth filed its request to hold Appellant in
contempt, the trial court, in accordance with Section 9730(b), held a hearing
to determine Appellant’s ability to pay the outstanding fines, costs, and
restitution. See Order, 7/14/16, at ¶ 4. At that hearing, Appellant stated
that he could pay $20 per month, was hoping to obtain a full-time job so
that he could pay more, and was willing to do community service to receive
credit towards the amount of restitution. Id. at ¶¶ 4, 7. Based on
Appellant’s representations, the trial court’s order established a payment
plan. The trial court’s procedure was in accordance with Section 9730(b)(3).
The trial court did not impose imprisonment, or any other penalty, for
nonpayment.
That the trial court’s order was issued in response to allegations of
contempt does not necessarily mean that the court held Appellant in
contempt. See Commonwealth v. Stoltzfus, 424 A.2d 868, 869 (Pa.
1981). In Stoltzfus, the defendant had been ordered to pay a fine and
costs of prosecution within 30 days of his conviction. 424 A.2d at 869.
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When he failed to make the required payment, he was arrested for criminal
contempt. Id. Ultimately, the trial court entered an order establishing a
schedule for payment of the outstanding fine and costs. Id. The Supreme
Court of Pennsylvania held that the order establishing the payment schedule
was not an order of criminal contempt. Id.
In Gerace v. Gerace, 631 A.2d 1360, 1361 (Pa. Super. 1993),
Gregory Gerace had been ordered to return his step-daughter’s property.
When Gregory failed to do so, his step-daughter petitioned the court to enter
a rule and adjudicate Gregory in civil contempt. Id. In response, the court
ordered Gregory to pay his step-daughter $8,680.85, the value of the
property he had either retained or destroyed. Id. On appeal, this Court
explained that the order to pay $8,680.85, although filed in response to a
petition for an adjudication of civil contempt, did not find Gregory in
contempt; rather, it merely modified the earlier order requiring return of his
step-daughter’s property. Id. at 1362 (“The fact that the order was made in
response to a petition for rule and adjudication of civil contempt does not
mean appellant was actually adjudged in contempt of court”).
Here, as in Stoltzfus and Gerace, although contempt proceedings
were initiated, the trial court never held Appellant in contempt. Rather, the
trial court simply followed the procedure set forth in 42 Pa.C.S. §
9730(b)(3). Therefore, Appellant’s first issue has no merit.
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Right to Counsel
In his second issue, Appellant contends that the trial court failed to
ensure that he knowingly, intelligently, and voluntarily waived his right to
counsel at the contempt hearing. Appellant’s Brief at 4.2
There is no transcript of the June 13, 2016 hearing in the certified
record, and the record does not indicate that Appellant requested such a
transcript. We are unable to review Appellant’s second issue without this
transcript. This Court has explained:
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for[3] any
transcript necessary to permit resolution of the issues raised on
appeal. Pa.R.A.P. 1911(a). . . . When the appellant . . . fails to
conform to the requirements of Rule 1911, any claims that
cannot be resolved in the absence of the necessary transcript or
transcripts must be deemed waived for the purpose of appellate
review. [Commonwealth v. Williams, 715 A.2d 1101, 1105
(Pa. 1998)]. It is not proper for either the Pennsylvania
Supreme Court or the Superior Court to order transcripts nor is it
the responsibility of the appellate courts to obtain the necessary
transcripts. Id.
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2
For purposes of this appeal, we assume, without deciding, that Appellant
had a right to counsel at the June 13, 2016 hearing. The notice informing
Appellant of the June 13th hearing stated, “It is your responsibility to see
that you and your attorney are present in the Courtroom at the time and
date specified. If you cannot afford an attorney, you may apply for free legal
representation at the Public Defender’s Office . . . .” Notice, 4/29/16. The
trial court appears to have believed that Appellant had a right to counsel, as
it noted in its June 13, 2016 Order its satisfaction that Appellant knowingly,
voluntarily, and intelligently waived that right. See Order, 6/13/16.
3
If a person is unable to pay the costs of transcription, those costs will be
waived or adjusted. Pa.R.J.A. 4007(E).
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In the absence of specific indicators that a relevant document
exists but was inadvertently omitted from the certified record, it
is not incumbent upon this Court to expend time, effort and
manpower scouting around judicial chambers or the various
prothonotaries’ offices of the courts of common pleas for the
purpose of unearthing transcripts . . . .
Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa. Super. 2006) (en banc),
appeal denied, 916 A.2d 632 (Pa. 2007).
Although Appellant was granted leave to proceed in forma pauperis,
that did not relieve him of his obligation to request the necessary transcript.
See Commonwealth v. Osellanie, 597 A.2d 130, 131 (Pa. Super. 1991)
(“Although Osellanie is before this court in forma pauperis it is nonetheless
the appellant’s responsibility to order the transcript required and ascertain
its presence in the record prior to certification for appeal”).
Because we are unable to review Appellant’s second claim without the
missing transcript, that claim is waived. See Preston, 904 A.2d at 7-8.
Ineffective Assistance of Counsel at Sentencing
In his third issue, Appellant claims that his counsel was ineffective at
his November 9, 2010 sentencing. Appellant claims that his counsel failed to
explain his sentence. This claim is not properly before this Court. The only
issue in this appeal is the propriety of the trial court’s June 13, 2016 order
imposing a payment plan. Any claim that sentencing counsel was ineffective
should have been raised in a timely PCRA petition. See Commonwealth v.
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Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (“The PCRA provides the sole
means for obtaining collateral review of a judgment of sentence”).4
For the foregoing reasons, we affirm the trial court’s order imposing a
payment plan.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
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4
We note that Appellant filed a PCRA petition on August 3, 2016. That
petition was dismissed because Appellant is no longer serving a sentence of
imprisonment, probation, or parole. See Order 8/9/16 (citing 42 Pa.C.S. §
9543(a)(1)(i); Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.
Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010)).
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