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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
Appellant PENNSYLVANIA
v.
MICHAEL BURROWS
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(s): CP-25-CR-0001414-2014
BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD: FILED: October 31, 2017
The Commonwealth takes this appeal from the judgment of sentence
entered in the Erie County Court of Common Pleas. The Commonwealth
claims that the trial court’s sentencing order was illegal because it failed to
impose laboratory fees and limited the total costs to $2,500.00. We affirm.
The procedural history of this appeal is as follows. On October 24,
2016, Appellee, Michael Burrows, pleaded guilty but mentally ill to one count
of murder of the third degree1 for killing his mother. At the sentencing
hearing on December 16, 2016, the Commonwealth requested the
imposition of $9,891.70 for the total cost of the prosecution, which included
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 314, 2502(c).
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$7,145.00 for the Pennsylvania State Police’s laboratory user fee.2 See R.R.
9a, 29a. The trial court, over the Commonwealth’s objection, stated that it
would impose $2,500.00 in total costs and fees due to Appellee’s expected
ability to pay and possible constitutional violations. The trial judge
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.
2
The trial court described the Commonwealth’s requests for costs and fees
as follows: (1) $2,417.00 for blood testing; (2) $7,145.00 for DNA testing;
(3) $247.00 for transcription fees; and (4) $82.70 for constable fees. The
Pennsylvania State Police’s laboratory user fee statement was not made part
of the certified record, but was included in the Commonwealth’s reproduced
record. Appellee did not object to the accuracy of the reproduced record.
Therefore, we consider the documents contained in the reproduced record.
See Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012).
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N.T. Sentencing Hr’g, 12/16/16, at 22-23. The trial court sentenced
Appellee to twelve to twenty-five years’ imprisonment, followed by fifteen
years’ special supervised probation, with Appellee to pay costs.3
Appellee filed a post-sentence motion, which the trial court denied on
January 11, 2017. The Commonwealth did not file a post-sentence motion,
but timely appealed on January 12, 2017, and filed a court-ordered
Pa.R.A.P. 1925(b) statement challenging the trial court’s limitation of costs
to $2,500.00. The trial court filed an opinion suggesting that 16 P.S. § 1403
permitted it reject the Commonwealth’s request for costs and no statutory
provision precluded its discretion in limiting the total costs and fee. Trial Ct.
Op., 2/7/17, at 3. This appeal followed.
The Commonwealth presents the following question for review:
Did the [trial] court err in failing to impose, as part of the
sentence, all necessary expenses, i.e., all lab fees,
incurred by the district attorney in the investigation and
prosecution of this case, as part of the case?
Commonwealth’s Brief at 4.
The Commonwealth argues that “[t]he plain language and plain
meaning of 16 P.S. § 1403, 42 Pa.C.S. [§§] 9728[4] and []1725.3 suggest
3
The written sentencing order states that Appellee “will pay costs” and “shall
pay supervision fees/administrative costs per month/payment plan.”
Sentencing Order, 12/16/16. The order does not contain the trial court’s
intended $2,500.00 limit on costs and fees or direct an installment plan, but
a December 22, 2016 docket entry indicated “Penalty Assessed (LAB Fees
not to exceed $2,500.00). Docket, CP-25-CR-0001414-2014, at 17.
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that payment of these expenses[, i.e., the collection of physical evidence,
serology testing and DNA analysis,] is mandatory and thus, not a
discretionary aspect of sentencing.” Id. at 9. Moreover, the Commonwealth
contends that those expenses were necessary because they were “essential
in the identification of [Appellee] and the investigation and prosecution of
the case[.]” Id. at 8. Thus, the Commonwealth concludes that “[t]he
failure to impose all necessary costs in this case, specifically the laboratory
fees, rendered the sentence illegal and . . . in error.” Id. at 9. For the
reasons that follow, we conclude that no relief is due because the
Commonwealth’s challenge goes to the discretionary aspects of the sentence
rather than its legality.
“The 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). Moreover,
this Court may review a question regarding the legality of the sentence sua
sponte. Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998)
(en banc).
The relevant statutes governing the costs of prosecution and
laboratory fees are as follows:
4
Section 9728 “provides the procedural mechanism for the collection of
court costs and fines.” Commonwealth v. LeBar, 860 A.2d 1105, 1109
(Pa. Super. 2004) (citation and quotation marks omitted).
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§ 1403. Expenses incurred by district attorney
All necessary expenses incurred by the district attorney or
his assistants 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 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.
§ 1725.3. Criminal laboratory and paramedic user
fee
(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
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transmit a statement for services rendered to the
court.
***
(d) Other laws.―The criminal laboratory and
paramedic user fee shall be imposed notwithstanding
any other provision of law to the contrary.
42 Pa.C.S. § 1725.3(a)-(c), (d).
Additionally, Pennsylvania Rule of Criminal Procedure 706 states:
(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, 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 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.
(D) In cases in which the court has ordered payment of a
fine or costs in installments, the defendant may request a
rehearing on the payment schedule when the defendant is
in default of a payment or when the defendant advises the
court that such default is imminent. At such hearing, the
burden shall be on the defendant to prove that his or her
financial condition has deteriorated to the extent that the
defendant is without the means to meet the payment
schedule. Thereupon the court may extend or accelerate
the payment schedule or leave it unaltered, as the court
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finds to be just and practicable under the circumstances of
record. When there has been default and the court finds
the defendant is not indigent, the court may impose
imprisonment as provided by law for nonpayment.
Pa.R.Crim.P. 706.
The language of Section 1403 and 1725.3 is mandatory and does not
provide for consideration of a defendant’s ability to pay prior to the
imposition of the district attorney’s costs or the laboratory user fee.
Therefore, Rule 706 provides the procedures affording constitutional
protections for indigent defendants. See Commonwealth v. Hernandez,
917 A.2d 332, 336-37 (Pa. Super. 2007) (discussing interplay between Rule
706 and Section 1403). This Court, however, has consistently held that Rule
706 does not require a hearing on a defendant’s ability to pay when costs
are imposed. See id. at 337; see also Commonwealth v. Childs, 63 A.3d
323, 325-26 (Pa. Super. 2013) (applying Hernandez to reject the claim
that a defendant was entitled to a hearing on his ability to pay costs before
the imposition of the costs of parole under 18 P.S. § 11.1102).
The Commonwealth’s legality of sentence challenge thus turns on
whether Rule 706(C) permits the trial court to consider the burden of costs
and fees at the time of sentencing when determining the amount and
method of payment. If Rule 706(C) does not apply at sentencing, then there
is merit to the Commonwealth’s argument that the trial court erred in
reducing its request for costs and fees without proper authority. If so,
however, the Commonwealth’s challenge is more properly directed to the
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discretionary aspects of the sentence. See Commonwealth v. Boyd, 73
A.3d 1269, 1273-74 (Pa. Super. 2013) (en banc) (distinguishing between
legality and discretionary sentencing challenges to the imposition of a fine).
This Court has on one occasion suggested that Rule 706(C) does not
apply at the time of sentencing, but that decision was reversed on other
grounds by the Pennsylvania Supreme Court. Commonwealth v. Ciptak,
657 A.2d 1296, 1298 (Pa. Super. 1995), rev’d on other grounds, 665 A.2d
1161 (Pa. 1995).5 However, the language of Rule 706(C) does not limit
itself to post-sentence defaults. Moreover, other statutes suggest that Rule
706(C) permits the trial court to consider the burden of the amount of costs
in light of a defendant’s financial means. For example, 42 Pa.C.S. §
9721(c.1) addresses the imposition of mandatory payment of costs at
sentencing and states:
Notwithstanding the provisions of section 9728 (relating to
collection of restitution, reparation, fees, costs, fines and
penalties) or any provision of law to the contrary, in
addition to the [sentencing] alternatives set forth in
subsection (a), the court shall order the defendant to pay
costs. In the event the court fails to issue an order for
costs pursuant to section 9728, costs shall be imposed
upon the defendant under this section. No court order
shall be necessary for the defendant to incur liability for
costs under this section. The provisions of this
subsection do not alter the court’s discretion under
Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
5
We also note that the two other panel judges in Ciptak concurred in the
result. The Pennsylvania Supreme Court reversed in a per curiam order
because the public defender’s office represented the defendant at trial and
on his claim that trial counsel was ineffective. Ciptak, 665 A.2d at 1161.
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42 Pa.C.S. § 9721(c.1) (emphasis added). Section 9728, which addresses
collection, similarly states:
(b.2) Mandatory payment of costs.—Notwithstanding
any provision of law to the contrary, in the event the court
fails to issue an order under subsection (a) imposing costs
upon the defendant,[6] the defendant shall nevertheless be
liable for costs, as provided in section 9721(c.1), unless
the court determines otherwise pursuant to
Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
The absence of a court order shall not affect the
applicability of the provisions of this section.
42 Pa.C.S. § 9728(b.2)(emphasis added).
In light of the foregoing, we conclude that the trial court retains some
discretion under Rule 706(C) “in determining the amount and method of
payment of a fine or costs.” Pa.R.Crim.P. 708(C). Accordingly, the
Commonwealth’s claim that the trial court lacked a proper basis to reduce
the request for costs and fees lacks merit as the trial court clearly
considered the burden on Appellee based on his financial means and
compromised ability to pay. See Commonwealth v. Church, 522 A.2d 30,
6
Section 9728(a)(1) states, in part:
A sentence, pretrial disposition order or order entered
under section 6352 (relating to disposition of delinquent
child) for restitution, reparation, fees, costs, fines or
penalties shall, together with interest and any additional
costs that may accrue, be a judgment in favor of the
probation department upon the person or the property of
the person sentenced or subject to the order.
42 Pa.C.S. § 9728(a)(1).
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33-34 (Pa. 1987) (holding that the trial court erred in reducing mandatory
fine from $13,517.50 to $3,000.00 for overweight vehicle where, in part,
there was “no claim of total indigency and no threat of incarceration,” but
noting reasonable installment plan would avoid any constitutional infirmity).
Moreover, the Commonwealth has failed to preserve a discretionary aspect
of sentence claim directed towards the trial court’s determination of the
burden on Appellee and the amount of costs and fees, or argue that the trial
court’s findings constituted an abuse of discretion. Therefore, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judge Solano joins the Memorandum.
Judge Stabile files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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