J-S29010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD LEE COOPER III                      :
                                               :
                       Appellant               :   No. 2495 EDA 2019

         Appeal from the Judgment of Sentence Entered August 2, 2019
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000476-2019


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              Filed: July 23, 2020

        Appellant, Donald Lee Cooper III, appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas on

August 2, 2019, after he was resentenced to imprisonment following

revocation of his parole. For the reasons discussed below, we vacate and

remand for resentencing.

        On March 4, 2019, Appellant entered a negotiated guilty plea to defiant

trespass. The trial court imposed a negotiated sentence of time-served1 to six

months’ incarceration, plus payment of costs of prosecution, a fine of one

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Appellant received credit for eighteen days of incarceration from November
18, 2018 to December 6, 2018.
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hundred dollars, and supervision fees. See N.T., Guilty Plea, 3/4/2019, at 6;

see also Sentencing Order, 3/4/2019, at 2. Approximately one month later

Appellant was paroled.

       On August 2, 2019, Appellant stipulated to violating his parole.

Specifically, Appellant stipulated that he was arrested on new charges,

including defiant trespass; he failed to report to the probation and parole

department as directed; he failed to maintain a legal and verifiable address;

and he failed to pay fines and costs as directed. 2 The court sentenced

Appellant to to serve the balance of his original sentence, dated from May 31,

2019, with no credit for time on parole, and with eligibility for parole after

three months. The sentencing order further specified that Appellant must pay

the “balance [due] within the first 4 months of supervision in monthly

installments as directed” and that he “shall pay the monthly offender

supervision fee”. Sentencing Order, 8/2/2019. This appeal followed.

       Appellant raises two issues on appeal.

       1. Did the trial court err in revoking parole on the basis of failure
       to pay costs and a fine without determining that the failure to pay
       was willful?

       2. Did the parole revocation sentence illegally exceed the original
       sentence where: (a) the court sentenced [Appellant] to five
       months and twelve days of back-time after he served forty-eight
       days on a six month sentence and, (b) he is being ordered to pay
       the balance on a $1,000 fine but was originally sentenced to a
       $100 fine?
____________________________________________


2Appellant was charged with failing to pay a balance due of $1,819.00, and
an overdue amount of $727.60.


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See Appellant’s Brief, at 2.

      In his first issue, Appellant contends he was sentenced to incarceration

“in substantial part [for] failure to pay a fine and costs, without a

determination that he was able to pay the fine and costs” and therefore his

case should be remanded for an ability-to-pay hearing. Appellant’s Brief, at

9-10. “Prior to imprisoning a contemnor for failure to pay fines or costs, the

trial court must render findings of fact on the contemnor's financial resources.”

Commonwealth v. Diaz, 191 A.3d 850, 866 (Pa. Super. 2018). “A claim that

the trial court erroneously imposed an illegal sentence is a question of law

and, as such, our scope of review is plenary and our standard of review is de

novo.” Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013)

(citation omitted).

      In its 1925(b) opinion, the trial court admits that it revoked Appellant’s

parole “in part based upon his failure to pay supervision fees” and further that

“[t]here was no determination as to his ability to pay.” Trial Court Opinion, at

4-5. Both the Commonwealth and the trial court agree a remand is necessary

for a hearing to determine Appellant’s ability to pay his financial obligations.

      We find Appellant’s assertion that his failure to pay his financial

obligations was a “substantial” basis for his sentence of incarceration is belied

by the record, as Appellant stipulated to multiple violations of his parole in

addition to his failure to pay his financial obligations, all of which the court




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took into consideration in resentencing Appellant. It is unclear from the record

the amount of weight given to each violation.

      We nevertheless agree that to the extent Appellant’s failure to pay his

financial obligations factored into the court’s reasoning in any way, Appellant

was entitled to an ability-to-pay hearing. See Pa.R.Crim.P. 706(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.”); see also Diaz, 191 A.3d at 866. We therefore remand to the

trial court for a hearing on Appellant’s ability to pay his financial obligations.

      Due to our disposition, we need not reach Appellant’s second issue, in

which he contends his new sentence illegally exceeds his original sentence in

that the trial court miscalculated the balance of his sentence and ordered him

to pay a higher fine than the original sentence. Since we are remanding for a

hearing on Appellant’s failure to pay his financial obligations, a factor in his

sentence of incarceration, it follows that the sentence imposed following

revocation of Appellant’s parole is vacated, and we need not address this issue

further. Appellant may raise these issues before the trial court on remand,

prior to resentencing.

      Case remanded for resentencing after a determination of Appellant’s

ability to pay his financial obligations. Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/20




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