J-A01018-20
2020 PA Super 98
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE HUDSON :
:
Appellant : No. 611 EDA 2019
Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009201-2009
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
OPINION BY MURRAY, J.: Filed : April 16, 2020
Maurice Hudson (Appellant) appeals from the judgment of sentence
imposed following the revocation of his probation. Appellant claims that the
trial court erred in determining that he violated a specific condition of his
probation because court costs cannot be imposed as part of a sentence.
Additionally, Appellant asserts that the trial court erred when it imposed a
sentence of total confinement for his failure to pay court costs without
conducting a hearing concerning his ability to pay, and imposed an excessive
sentence. Because we are constrained to conclude that the trial court imposed
an illegal sentence, we vacate the judgment of sentence.
On April 21, 2010, Appellant entered a negotiated guilty plea to two
counts of robbery and one count each of criminal conspiracy, carrying a
firearm without a license, and possession of an instrument of crime.1 Pursuant
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3701(a)(1), 903(a)(1), 6106(a)(1), and 907(a).
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to the agreement, the trial court sentenced Appellant to two to four years of
incarceration, plus three years of probation. Appellant was work release
eligible and received credit for time served. In Appellant’s sentencing order,
the trial court imposed the following conditions of probation: obtain a GED;
attend job training; seek and maintain employment; and pay court costs.
Sentencing Order, 4/21/10.
On October 22, 2012, Appellant was released from prison and began
serving probation. Subsequently, Appellant attended four violation of
probation (VOP) hearings before the trial court. On June 25, 2015, the trial
court found him in technical violation of his probation for failing to obtain
employment and pay court costs. The trial court sentenced Appellant to 11½
to 23 months of incarceration, plus three years of probation. On January 12,
2016, the trial court granted Appellant’s petition for parole, but ordered
Appellant to comply with the conditions of probation.
On July 18, 2017, Appellant appeared for a second VOP hearing after a
bench warrant was issued following Appellant’s failure to appear at a status
hearing. The trial court found Appellant in technical violation of his probation,
but did not impose any further sentence. On May 7, 2018, Appellant appeared
for a third VOP hearing. The trial court again found Appellant in technical
violation of his probation for not maintaining employment and failing to pay
court costs. The trial court sentenced Appellant to one year of probation.
On February 12, 2019, Appellant appeared for a fourth VOP hearing,
which is the subject of the instant appeal. The trial court found Appellant in
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technical violation for failing to pay court costs. See N.T., 2/12/19, at 6, 17-
19, 21-24; see also Gagnon II Summary, 2/7/19. In order to “vindicate the
authority of the court,” the trial court sentenced Appellant to 1½ to 3 years of
incarceration. N.T., 2/12/19, at 18. The trial court also sentenced Appellant
to pay fines and costs, undergo random drug screens, and seek and maintain
employment. Id.; see also Order, 2/12/19.
On February 14, 2019, Appellant filed a motion for reconsideration of
his VOP sentence. While the motion was pending, Appellant filed a timely
notice of appeal with this Court. On April 3, 2019, the trial court issued an
order directing Appellant to file a concise statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely submitted
on April 15, 2019.
Appellant presents three issues for our review:
1. Did not the lower court err and impose an illegal sentence,
violating Rule 706 of the Pennsylvania Rules of Criminal
Procedure and Appellant’s due process rights, by committing
Appellant to prison for failure to pay court costs without making
adequate inquiry into Appellant’s ability to pay?
2. Did not the lower court impose an illegal sentence when it
revoked Appellant’s probation and imposed 1½ to 3 years
incarceration for his failure to pay court costs, where the
condition that a probationer pay court costs is not a valid
condition of probation under 42 Pa.C.S.A. § 9754?
3. Did not the lower court abuse its discretion in imposing a
sentence of 1½ to 3 years confinement because Appellant
failed to pay court costs and obtain “above the table”
employment, where the sentence imposed was inconsistent
with the Sentencing Code and fundamental norms underlying
the sentencing process, contrary to Appellant’s rehabilitative
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needs, and not necessary to vindicate the authority of the
court?
Appellant’s Brief at 3 (trial court answers omitted). We need only discuss
Appellant’s second issue, as it is dispositive of this appeal.
In an appeal from a sentence imposed after a trial court’s revocation of
probation, this Court “can review the validity of the revocation proceedings,
the legality of the sentence imposed following revocation, and any challenge
to the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted).
When imposing a sentence of total confinement after a probation
revocation, the sentencing court is to consider the factors set forth in 42
Pa.C.S.A. § 9771. Notably, Section 9771 allows for termination of supervision
or modification of the conditions of probation at any time. Id. at § 9771(a).
Revocation of probation, however, is permitted only “upon proof of the
violation of specific conditions of the probation.” Id. at § 9771(b). If, after
determining that the defendant has violated a specific condition of probation,
the court revokes a defendant’s probation, it may only resentence the
defendant to a term of incarceration if: 1) the defendant was convicted of a
new crime; 2) the defendant’s conduct makes it likely that he or she will
commit a new crime if not incarcerated; or 3) incarceration “is essential to
vindicate the authority of the court.” Id. at § 9771(c).
Appellant contends that the failure to pay court costs, the basis upon
which his probation was revoked, was an illegal condition of sentence under
Section 9754 of the Judicial Code. See id.; see also 42 Pa.C.S.A. § 9754.
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Likewise, Appellant asserts that Section 9771, which governs revocation of
probation, “unambiguously provides that revocation of probation is
permissible only ‘upon proof of the violation of specified conditions of
probation.’” Appellant’s Brief at 24 (quoting Commonwealth v. Foster, 214
A.3d 1240, 1251 (Pa. 2019)) (emphasis added). Accordingly, Appellant
submits that because court costs cannot be imposed as a condition of
probation, and thus, it cannot be said that he violated any specific condition
of his probation, the trial court illegally revoked his probation. Id.; see also
Foster, 214 A.2d at 1251.
We begin by noting that objections to an illegal sentence “cannot be
waived and may be reviewed sua sponte by this Court.” Commonwealth v.
Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). The scope and standard of
review applied to determine the legality of a sentence are well settled.
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation
omitted).
When interpreting a sentencing statute, we are mindful that:
‘[t]he object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly.
Every statute shall be construed, if possible, to give effect to all
its provisions.’ 1 Pa.C.S. § 1921(a). The plain language of the
statute is generally the best indicator of legislative intent, and the
words of a statute ‘shall be construed according to rules of
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grammar and according to their common and approved usage. . .
.’ 1 Pa.C.S. § 1903(a). We generally will look beyond the plain
language of the statute only when words are unclear or
ambiguous, or the plain meaning would lead to ‘a result that is
absurd, impossible of execution or unreasonable.’ 1 Pa.C.S. §
1922(1); see also Mercury Trucking, Inc. v. Pa. Pub. Util.
Comm'n, 55 A.3d 1056, 1058 (Pa. 2012).
Commonwealth v. Hall,
80 A.3d 1204, 1211 (Pa. 2013). Since Section 9754
is a penal statute, we must strictly construe this provision and interpret any
ambiguity in the light most favorable to the criminal defendant.
Id. at 1212
(“as a penal statute, Section 9754 must be interpreted in the light most
favorable to [the defendant]”).
The Commonwealth acknowledges that Appellant has seemingly
received an illegal sentence of incarceration. Commonwealth’s Brief at 12. In
particular, the Commonwealth avers that our case law “suggest[s] that costs
cannot be imposed as a condition of probation, and, consequently, that
probation cannot be revoked for nonpayment of costs.” Id. The
Commonwealth further recognizes the legal distinction between fines and
costs: “fines are punishment because they are direct consequences of a
criminal conviction; costs are not because they are ‘akin to collateral
consequences.’ Accordingly, ‘[c]osts are not part of [a] sentence.’”
Commonwealth’s Brief at 11-12 (citations omitted).
In its 1925(a) opinion, the trial court contends it was authorized to
revoke Appellant’s probation and sentence him to a term of incarceration
pursuant to Section 9771(c), “as such a sentence was essential to vindicate
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the authority of the court.” Trial Court Opinion, 6/27/19, at 10. The trial
court stated:
This Court had given [Appellant] numerous chances to get his life
together while on probation/parole. Instead, he chose to
squander these opportunities and simply continued doing what he
wanted to do. This Court explained to [Appellant] at the violation
hearing:
All this time that you’ve been back and forth before
this Court and every single time you got a break.
Even the first time you came in front of this Court you
didn’t go to state prison. . . . You go[t] the biggest
break when you first got sentenced. You got two to
four to be served in the County and everything was
running concurrent. That was a big break. I don’t
know if anybody ever broke it down to you that way.
That was a big break because you never had to go to
State prison and since that time I’ve been giving you
break after break after break and every single time
you came in here with nothing but excuses about why
you didn’t do what you’re supposed to do.
Id. at 10-11 (citations omitted).
The primary statute at issue in this appeal is Section 9754 of the Judicial
Code, which governs orders of probation. Specifically, Section 9754 provides
that “[t]he court shall attach such of the reasonable conditions authorized by
subsection (c) of this section as it deems necessary to insure or assist the
defendant in leading a law-abiding life.” 42 Pa.C.S.A. § 9754(b). Subsection
(c), in turn, enumerates 14 discrete conditions:
(1) To meet his family responsibilities.
(2) To devote himself to a specific occupation or employment.
(2.1) To participate in a public or nonprofit community service
program unless the defendant was convicted of murder,
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rape, aggravated assault, arson, theft by extortion,
terroristic threats, robbery or kidnapping.
(3) To undergo available medical or psychiatric treatment and
to enter and remain in a specified institution, when required
for that purpose.
(4) To pursue a prescribed secular course of study or vocational
training.
(5) To attend or reside in a facility established for the
instruction, recreation, or residence of persons on
probation.
(6) To refrain from frequenting unlawful or disreputable places
or consorting with disreputable persons.
(7) To have in his possession no firearm or other dangerous
weapon unless granted written permission.
(8) To make restitution of the fruits of his crime or to
make reparations, in an amount he can afford to pay,
for the loss or damage caused thereby.
(9) To remain within the jurisdiction of the court and to notify
the court or the probation office of any change in his address
or his employment.
(10) To report as directed to the court or the probation officer
and to permit the probation officer to visit his home.
(11) To pay such fine as has been imposed.
(12) To participate in drug or alcohol treatment programs.
(13) To satisfy any other conditions reasonably related to
the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his
freedom of conscience.
(14) To remain within the premises of his residence during the
hours designated by the court.
42 Pa.C.S.A. § 9754(c)(emphasis added).
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Section 9754 empowers sentencing courts to impose reasonable
conditions of probation, which may be monetary obligations, to assist the
defendant in leading a law-abiding life, so long as the conditions do not result
in a violation of the defendant’s essential constitutional liberty and freedom of
conscience. Hall, 80 A.3d at 1212. As described in subsections (c)(8) and
(c)(11), monetary conditions of probation may be imposed for the purpose of
“restitution” or “fines.” Notably, however, Section 9754 does not expressly
include a provision permitting the type of monetary condition imposed here –
court cost. We therefore consider the language of Section 9754 in light of the
directive that, as a penal statute, Section 9754 must be interpreted in the
light most favorable to Appellant.
Id.
In Commonwealth v. Wall, this Court reviewed the different monetary
measures a court may impose upon a defendant at sentencing, i.e., costs,
fines, or restitution. We explained:
Often following a criminal conviction, the trial court
places a monetary imposition on the defendant. The
imposition of costs and restitution are not considered
punishment. Both costs and restitution are designed
to have the defendant make the government and the
victim whole. Restitution compensates the victim for
his loss and rehabilitates the defendant by impressing
upon him that his criminal conduct caused the victim’s
loss and he is responsible to repair that loss. See
Commonwealth v. Runion, [ ] 662 A.2d 617, 618
([Pa.] 1995). Costs are a reimbursement to the
government for the expenses associated with the
criminal prosecution. See, e.g., United States v.
Monsanto Co., 858 F.2d 160 (4th Cir. 1988). Costs
and restitution are akin to collateral consequences.
Conversely, fines are considered direct consequences
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and, therefore, punishment. See Parry [v.
Rosemeyer], 64 F.3d [110] at 114 [(3d Cir.1995)]
(quoting [U.S. v.] Salmon, 944 F.2d [1106] at 1130
[(3d Cir.1991)]); see also Commonwealth v.
Martin, [ ] 335 A.2d 424 ([Pa. Super.] 1975)
(requiring an indigent to pay a $5,000.00 fine was per
se manifestly excessive and constituted too severe [a]
punishment). The Legislature authorized fines for all
offenses and intended to relate the amount of the fine
to the gravity of the offense. See 18 Pa.C.S.A. § 1101
...
Historically, fines are punishment. A fine is a
monetary amount equal to the severity of the crime
and has been used to ensure that a person does not
receive a pecuniary gain from the offense.
Id., 867 A.2d at 583.
It is undisputed that subsection (c)(8), governing an award of restitution
as a condition of probation, does not encompass a directive to pay court costs.
Likewise, in Commonwealth v. Rivera, 95 A.3d 913 (Pa. Super. 2014), this
Court explained that court costs are distinct from fines, and thus are not
authorized as a condition of probation under subsection (c)(11). This Court
in Rivera concluded that because court costs do not intend to “punish” the
defendant or ensure that he “does not receive a pecuniary gain from the
offense,” they are not a fine and fall outside the scope of subsection (c)(11).
Id. at 916.
Section 9754(c)(13) is a catchall provision, written in broader terms
than subsections (c)(8) and (11). The provision authorizes the imposition of
“any” other condition of probation reasonably related to the defendant’s
rehabilitation, so long as the condition is not “unduly restrictive” of the
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defendant’s constitutional liberty or conscience. This subsection neither
approves nor excludes monetary obligations.
Both Appellant and the Commonwealth, however, cite to Rivera as
prohibiting the imposition of court costs as a probationary monetary condition
fashioned pursuant to subsection (c)(13). We agree with the parties’
interpretation. It is clear from our reading of Rivera that court costs do not
reasonably relate to the rehabilitation that probation is designed to foster, and
thus, cannot be subsumed within the catchall provision of Section 9754. We
explained:
Costs are not part of the criminal’s sentence but are merely
incident to the judgment. Commonwealth v. Nicely, [ ] 638
A.2d 213, 217 ([Pa.] 1994). As a mere incident to judgment,
costs are not ‘reasonably related to the rehabilitation of the
defendant,’ the sine qua non of probationary conditions under
[S]ection 9754(c)(13).
Rivera, 95 A.3d at 917. Accordingly, we are constrained to conclude that
court costs are not authorized as a condition of probation under Section 9754.
Thus, because Appellant has not violated a specific condition of
probation, we likewise conclude that the trial court erred in revoking
Appellant’s probation. In Foster, our Supreme Court held that a defendant
may be found in violation of probation where the trial court concludes, based
on a preponderance of the evidence, that the probationer “violated a specific
condition of probation or committed a new crime to be found in violation.
Absent such evidence, a violation of probation does not occur solely because
a judge believes the probationer’s conduct indicates that probation has been
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ineffective to rehabilitate or to deter against antisocial conduct.” Foster, 214
A.3d at 1243.
As discussed supra, Section 9754 does not authorize the imposition of
court costs as a condition of probation. Therefore, consistent with our
Supreme Court’s directive in Foster, Appellant cannot be said to be in
technical violation of his probation. Accordingly, we reverse the trial court’s
order revoking Appellant’s probation and vacate his judgment of sentence.2
Revocation of probation reversed. Judgment of sentence vacated. Case
remanded. Jurisdiction relinquished.
Judge Colins joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/20
____________________________________________
2 Although not in the certified record but relevant to the proceedings on
remand, the parties acknowledge that Appellant’s court costs were paid in full
after Appellant filed his notice of appeal in this Court. See Appellant’s Brief
at 21 n.9; see also Emergency Motion for an Original Writ of Habeas Corpus,
9/24/19; Emergency Unopposed Application for Bail Pending Appeal from
Revocation of Probation Upon Technical Violation of Probation, 11/18/19.
Also, on November 21, 2019, our Supreme Court ordered Appellant released
on unsecured bail pending the resolution of this appeal. Order, 11/21/19.
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