J-S43034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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