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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHAEL BURROWS
Appellee No. 88 WDA 2017
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001414-2014
BEFORE: STABILE, SOLANO, and FITZGERALD, * JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED: October 31, 2017
I dissent from the learned Majority because Pa.R.Crim.P. 706 is
inapplicable at sentencing. The trial court relied on Rule 706 at sentencing
to justify its failure to comply with the requirements 16 P.S. § 1403 (relating
to costs of prosecution) and 42 Pa.C.S.A. § 1725.3 (relating to criminal
laboratory fees). I would vacate the judgment of sentence and remand for a
new sentence.
Following Appellee’s plea of guilty but mentally ill to one count of
murder of the third degree, the trial the trial court sentenced Appellee to a
term of incarceration of 12-25 years. At sentencing, the Commonwealth
provided the trial court with the costs of prosecution ($9,891.70), which
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*
Former Justice specially assigned to the Superior Court.
J-S43034-17
included the criminal laboratory fee ($7,145.00); however, the trial court
only imposed $2,500 in costs to Appellee. In doing so, the trial court
explained
I’ll impose all those [costs and fees] at 1414 of 2014. But
I’m also going to find that the imposition of these fines, though
I’ve [ordered] them, would violate—the collection of them would
violate the Constitution. [Appellee] has an IQ of 65. He will
never—if outside of prison—make enough of a living to pay those
sums to the Commonwealth. And it’s wrong to impose these
costs without concluding that [Appellee] actually has any real
possibility of paying them. They would just languish over his
head forever and prevent a fresh start.
So, I’ve imposed them, but I’m also finding the collection
of them would violate the Constitution given what I perceive his
earning capacity and power is in the current world, it’s just not
going to happen.
No I’m going to do something different, I’m going to limit
them to $2,500 in terms of collection. I want to impose
something on him, but I don’t want to basically bury him under a
litany of fees so that when he’s out, these will—he’s going to
have enough issues on his plate.
N.T. Sentencing Hearing, 12/16/16, at 22-23.
As the Majority correctly notes “[t]he determination as to whether the
trial court imposed an illegal sentence is a question of law; our standard of
review in cases dealing with questions of law is plenary.” Commonwealth
v. Garzone, 993 A.2d 306, 316 (Pa. Super. 2010) (citation and quotation
marks omitted). The Majority quotes the relevant statutes; however, it fails
to apply them in a literal manner. Section 1403 provides that
All necessary expenses incurred by the district attorney or his
assistance or any office directed by him in the investigation of
crime and the apprehension and prosecution of persons charged
with or suspected of the commission of crime, upon approval
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thereof by the district attorney and the court, shall be paid by
the county from the general funds of the county. 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 (emphasis added). Thus, as the statute uses “shall,” rather
than “may,” the statute removes any discretion from the trial court in
imposing the costs of prosecution.
Further, § 1725.3 provides for
(a) Imposition.—A person who . . . is convicted of a crime as
defined in 18 Pa.C.S. § 106 (relating to classes of
offenses) . . . shall, in addition to any fines, penalties or
costs, in every case where laboratory services were
required to prosecute the crime or violation, be
sentenced to pay a criminal laboratory or paramedic
user fee which shall include, but not be limited to, the cost
of sending a laboratory technician or paramedic to court
proceedings.
(b) Amount of user fee.—
(1) The director or similar officer of the county
laboratory or emergency medical services agency that has
provided services in the prosecution shall determine the
actual cost of the laboratory or paramedic services
provided in the prosecution and transmit a statement for
services rendered to the court.
(2) If a Pennsylvania State Police laboratory has
provided services in the prosecution, the director or similar
officer of the Pennsylvania State Police laboratory shall
determine the actual cost of the laboratory services
provided in the prosecution and transmit a statement for
services rendered to the court.
***
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(d) Other laws.—The criminal laboratory and paramedic
user fee shall be imposed notwithstanding any other
provision of the law to the contrary.
18 Pa.C.S.A. § 1725.3. Thus, as with § 1403, the statute provides that the
trial court shall impose the actual costs of the fees rather than deferring to
the discretion of the trial court. As the Majority correctly notes, the
language in these statutes is mandatory. Thus, the only question is whether
Rule 706 gives the trial court discretion in imposing these fees.
The Majority relies on Pa.R.Crim.P. 706, which provides, in relevant
part,
(A) A court shall not commit the defendant to prison for failure
to pay a 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 the 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.
(C) The court, in determining the amount and method of
payment of a fine or costs shall, insofar as 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. However, Rule 706 provides only procedural safeguards
to “ensure that an indigent defendant will be afforded an opportunity to
prove his financial inability to pay the costs of prosecution before being
committed to prison.” Commonwealth v. Hernandez, 917 A.2d 323, 326
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(Pa. Super. 2007). In Commonwealth v. Childs, 63 A.3d 323, 326-27 (Pa.
Super. 2013), this Court found that the trial court was not required to have
a hearing at the time of sentencing on an appellant’s ability to pay costs of
prosecution pursuant to Rule 706 because the trial court can hold the
hearing when the appellant fails to make payment. Childs, 63 A.3d at 326.
Furthermore, this Court previously held that Rule 706(C) does not apply at
sentencing. See Commonwealth v. Ciptak, 657 A.2d 1296, 1298 (Pa.
Super. 1995), rev’d on other grounds, 665 A.2d 1161 (Pa. 1995).1 In
Ciptak, this Court noted that the entirety of Rule 7062 deals with a situation
in which a defendant has defaulted from his payment of a fine or costs of
prosecution; therefore, the Court found that Rule 706 does not apply at the
time of sentencing. Id. at 1297-98.
The purpose of Rule 706 is to prevent incarceration for an inability to
pay a fine, not for sentencing discretion. Therefore, I dissent because the
trial court did not have the discretion to reduce the mandatory costs of
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1
Our Supreme Court reversed Ciptak on the grounds that defendant raised
an ineffective assistance of trial counsel claim, however, trial counsel and
appellate counsel were members of the same public defender’s office. Thus,
appellate counsel was essentially claiming its own ineffectiveness. Ciptak,
665 A.2d at 1162.
2
In Ciptak the Court discusses Pa.R.Crim.P. 1407, which was renumbered
to Rule 706 on March 1, 2000.
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prosecution and laboratory fees as required by 16 P.S. 1403 and 42
Pa.C.S.A. § 1725.3.
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