J-S54042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENDALL HUDSON :
:
Appellant : No. 526 WDA 2017
Appeal from the Judgment of Sentence November 9, 2016
In the Court of Common Pleas of Forest County
Criminal Division at No(s): CP-27-CR-0000077-2016
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 22, 2017
Appellant, Kendall Hudson, appeals from the judgment of sentence
entered in the Forest County Court of Common Pleas after he pleaded guilty
to one count of assault by prisoner.1 Appellant challenges the legality of the
trial court’s sentence of 40 to 120 months’ imprisonment and the imposition
of a $2,500 fine. Appellant’s counsel (“Counsel”) has filed a petition to
withdraw and submitted an Anders/Santiago2 brief. We grant Counsel’s
petition to withdraw and affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2703(a).
2
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S54042-17
On April 22, 2016, Appellant struck a correctional officer in the face
several times with a closed fist. The officer suffered a laceration under his
left eye and a broken nose. Appellant was charged with aggravated assault,
assault by prisoner, and simple assault.
On November 9, 2016, Appellant entered an open guilty plea to
assault by prisoner, a felony of the second degree. That same day, the trial
court sentenced him to serve 40 to 120 months’ imprisonment and pay a
fine of $2,500 and the costs of prosecution. The trial court nol prossed the
remaining charges.
On November 21, 2016, Counsel timely filed a post-sentence motion
for reconsideration claiming that the maximum term of imprisonment and
fine were excessive.3 The trial court held a hearing on December 16, 2016,
and denied Appellant’s post-sentence motion that same day. Appellant
timely filed a notice of appeal. In response to the trial court’s order for the
submission of a Pa.R.A.P. 1925(b) statement, Counsel filed a statement of
her intent to file an Anders/Santiago brief. See Pa.R.A.P. 1925(c)(4).
Counsel’s Anders/Santiago brief identifies the following claims for
review:
I. Whether Appellant’s sentence is illegal because his
maximum period of incarceration is more than twice his
minimum period of incarceration?
3
Because the tenth day following sentencing fell on Saturday, November 19,
2016, Appellant’s counseled post-sentence motion was timely filed. See 1
Pa.C.S. § 1908. We note that Appellant also sent to the trial court a pro se
motion asserting that the maximum aspect of his sentence was illegal.
-2-
J-S54042-17
II. Whether Appellant’s sentence is illegal where the
sentencing court imposed fines and costs without taking
into account Appellant’s ability to pay?
Anders/Santiago Brief at 4.
We first consider Counsel’s request to withdraw. See
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
[Santiago]. The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s reasons for concluding that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worthy of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted).
-3-
J-S54042-17
Instantly, Counsel has complied with the procedures for petitioning to
withdraw and submitted a brief that complies with the requirements of
Anders and Santiago. Therefore, we proceed to an independent review to
determine “whether the appeal is in fact frivolous.” Id. at 882 n.7 (citation
and quotation marks omitted).
Appellant’s first intended issue is that the maximum sentence of 120
months’ imprisonment is illegal.4 According to Counsel, Appellant claims
that the maximum sentence is illegal because it is more than double his
minimum sentence. We agree that this claim is frivolous.
The Sentencing Code provides, in relevant part, that the trial court
must “impose a minimum sentence of confinement which shall not
exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. §
9756(b)(1) (emphases added). The permissible maximum sentence for a
felony of the second degree is “not more than ten years.” 18 Pa.C.S. §
1103(2).
4
Although this claim was not preserved in Appellant’s counseled post-
sentence motion, this Court may address it sua sponte as a challenge to the
legality of the sentence. See Commonwealth v. Milhomme, 35 A.3d
1219, 1221 (Pa. Super. 2011) (reiterating that “[a] challenge to the legality
of sentence is non-waivable[,]” and that “[o]ur scope of review of challenges
to the legality of a sentence is plenary, and the standard of review is de
novo”). We note that although Appellant’s pro se post-sentence motion is
technically a nullity because it was filed while Counsel represented Appellant,
he asserted that “the overlapping maximum . . . isn’t even with the
minimum.” Appellant’s Pro Se Post-Sentence Mot., 11/18/17, ¶ 8.
-4-
J-S54042-17
Although Section 9756(b)(1) provides that a maximum sentence be at
least double the minimum sentence imposed by the trial court, it does not
limit the trial court’s authority to impose a maximum sentence greater than
double the minimum. Thus, Counsel properly determined that Appellant’s
intended claim misconstrues the controlling statute. Moreover, Appellant’s
maximum sentence did not exceed the statutory maximum for the offense.
See 18 Pa.C.S. § 1103(2). Accordingly, we conclude Appellant’s intended
challenge to the maximum aspect of his sentence is frivolous.
The second issue identified by Counsel is a challenge to the costs of
prosecution5 and the $2,500 fine. According to Counsel, Appellant claims
that these sanctions are illegal because “the sentencing court imposed fines
and costs without taking into account [his] ability to pay.”
Anders/Santiago Brief at 10. We conclude this issue is also frivolous.
With respect to the costs of prosecution, 16 P.S. § 1403 provides, in
part: “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.” 16 P.S. § 1403. Section 1403 does
not expressly provide for consideration of the defendant’s ability to pay
when the costs of prosecution are imposed as part of the sentence. It is well
5
The docket indicates that Appellant was assessed $50 for the costs of
prosecution. Appellant’s total costs and fees in this case was $572.
-5-
J-S54042-17
settled that a defendant is not entitled to an ability to pay hearing before the
imposition of costs. See Commonwealth v. Hernandez, 917 A.2d 332,
337 (Pa. Super. 2007). Therefore, Appellant’s claim that the trial court
failed to consider his ability to pay before imposing costs lacks any legal
basis.
As to fines, 42 Pa.C.S. § 9726 authorizes the trial court to sentence a
defendant to pay a fine in addition to a sentence of imprisonment if “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.” 42 Pa.C.S. §
9726(b)(2). Section 9726(c) states: “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(c).
This Court has stated that “a claim that the trial court failed to
consider the defendant’s ability to pay a fine can fall into several distinct
categories.” Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa. Super.
2013) (en banc). Possible claims include: (1) the absence of “a record of
the defendant’s ability to pay before the sentencing court[;]” (2) the failure
of “the sentencing court [to] consider evidence of record[;]” and (3) the
failure of the sentencing court “to permit the defendant to supplement the
record.” Id. The second and third categories go to the discretionary aspect
-6-
J-S54042-17
of the sentence. Id. at 1274. Only the first category—i.e., the complete
absence of a record of the defendant’s ability to pay—constitutes a challenge
to the legality of the sentence. Id. at 1273.
Here, Counsel’s analysis focuses on a legality of sentence challenge.
Counsel notes that this Court in Boyd held that the presentence
investigation report (“PSI”) constitutes part of the record and that the
information contained in the PSI may provide a sufficient evidentiary basis
for the trial court to consider the defendant’s ability to pay.
Anders/Santiago Brief at 11; see Boyd, 73 A.3d at 1274 (noting that the
PSI in that case contained information regarding the defendant’s educational
and employment history, as well as his existing assets). Counsel also notes
that the $2,500 fine is “relatively modest.” Anders/Santiago Brief at 11.
We agree that Appellant is not entitled to relief on this claim for separate
reasons.
Initially, we note that Counsel represented Appellant in the trial court
and had an opportunity to review and amend Appellant’s PSI before
sentencing. See N.T. Sentencing, 11/9/16, at 6-7 (indicating present
counsel reviewed the PSI and made a correction that Appellant received a
high school diploma). Nevertheless, the PSI was not made part of the
certified record transmitted to this Court, which hampers our ability to
conduct an independent review of Counsel’s assessment of this claim.
-7-
J-S54042-17
In any event, the record reveals that the trial court was informed of
several factors relevant to Appellant’s ability to pay. Appellant was a high
school graduate, was twenty-eight years old at the time of sentencing in the
present case, and, of particular significance, was serving previously imposed
sentences, the minimums of which would not expire until approximately
2050. Id. at 7, 10. Thus, the trial court was apprised of factors relevant to
Appellant’s ability to pay at the time of sentencing. Accordingly, Appellant’s
intended challenge to the legality of the trial court’s failure to consider his
ability to pay lacks support in the record.
As to the discretionary aspects of Appellant’s ability to pay claim, it is
well settled that “[a] challenge to the discretionary aspects of a sentence
must be considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute.” Commonwealth v. McAfee, 849
A.2d 270, 274 (Pa. Super. 2004) (citation omitted). One requirement for
preserving a discretionary aspects claim for appeal is that the defendant
object in the trial court. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003). If the defendant does not give the trial court an opportunity
to reconsider or modify its sentence on a specific basis, the claim will be
deemed waived. Id.; see also Pa.R.A.P. 302(a).
Instantly, Appellant challenged the imposition of the costs and the fine
as excessive in his post-sentence motion. At the beginning of the hearing on
the post-sentence motion, Appellant’s counsel reiterated that Appellant
-8-
J-S54042-17
believed that “the fine that was imposed is excessive as he lacks the ability
to pay.” N.T., 12/16/16, at 3. The trial court thereafter discussed its
decision to impose the 40 to 120 month term of imprisonment and denied
the post-sentence motion. Id. at 5-7. No further discussions occurred
regarding the fine. Aside from the boilerplate assertion that the fine was
excessive in light of Appellant’s ability to pay, Appellant’s counsel failed to
identify a specific discretionary argument regarding the adequacy of the trial
court’s consideration of Appellant’s ability to pay. Therefore, we are
constrained to conclude that a discretionary challenge to the imposition of
the fine is waived, and that this Court is precluded from addressing that
issue. See Pa.R.A.P. 302(a); Mann, 820 A.2d at 794.
Thus, we concur with the assessment of Appellant’s counsel that
Appellant’s intended claims are frivolous and having conducted an
independent review, we discern no further issues of arguable merit
preserved for review. Accordingly, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
-9-
J-S54042-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2017
- 10 -