J-S11044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
ALNISSA MATTOX,                           :
                                          :
                  Appellant               :           No. 837 MDA 2014

      Appeal from the Judgment of Sentence entered on April 10, 2014
            in the Court of Common Pleas of Lancaster County,
               Criminal Division, No. CP-36-SA-0000013-2014

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 26, 2015

      Alnissa Mattox (“Mattox”) appeals from the judgment of sentence

entered after she pled guilty to summary offenses concerning her violations

of a provision of the Public School Code governing compulsory school

attendance.1 We affirm.

      The trial court set forth the relevant history underlying this appeal as

follows:

            On July 10, 2012, [Mattox] appeared without counsel
      before Magisterial District Judge Bruce A. Roth (“MDJ Roth”) …,
      at which time [Mattox] entered a guilty plea on six separate
      non-traffic citations for violations of compulsory school

1
  See 24 P.S. § 13-1327(a); see also 24 P.S. § 13-1333(a)(1) (providing,
inter alia, that “[e]very parent … having control or charge of any child or
children of compulsory school age, who shall fail to comply with the
provisions of this act regarding compulsory attendance, shall on summary
conviction thereof, be sentenced to pay a fine and to pay court costs …, not
exceeding three hundred dollars ($300) …, and, in default of the payment of
such fine and costs … by the person so offending, shall be sentenced to the
county jail for a period not exceeding five (5) days.”).
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     attendance [], for repeatedly failing to send her [ten-year-old]
     child to school on a regular basis. Pursuant to 24 P.S. § 13-
     1333, MDJ Roth imposed a statutory fine of $300 on each
     citation and directed that [Mattox] pay court costs. A payment
     plan was arranged at that time [whereby Mattox] would pay
     $50.00 bi-weekly until all fines and costs were paid in full.
     [Mattox] did not file an appeal [from] the convictions or the
     sentence.

           Because [Mattox] failed to pay on her fines and costs, a
     payment determination hearing was held before MDJ Roth on
     January 6, 2014. At the conclusion of the hearing, MDJ Roth
     determined that [Mattox] was financially able to pay as ordered
     in the current payment schedule agreement.            Therefore,
     [Mattox] was directed to pay all fines and costs by no later than
     February 12, 2014[,] or report to Lancaster County Prison to
     begin serving an 80[-]day jail sentence. On January 17, 2014,
     [Mattox] filed a summary appeal to the Lancaster County Court
     of Common Pleas, objecting to the jail sentence imposed by MDJ
     Roth.

           On April 10, 2014, a summary appeal hearing [hereinafter
     referred to as “the de novo hearing”] was held on the instant
     matter, at which time [Mattox] was represented by Carol
     Herring, Esq. (“[Attorney] Herring”).     During the hearing,
     [Mattox] testified and acknowledged that her monthly income
     exceeded her monthly expenses.[FN1] Nevertheless, [Mattox]
     admitted she had made only one payment on this case since the
     date of her guilty plea in July 2012, in the total amount of
     $50.00. At the conclusion of the hearing, [the trial c]ourt
     determined [that Mattox] was in default of payments on her
     fines and costs. Furthermore, the [c]ourt found that [Mattox]
     had a past and present financial ability to comply with the
     payment plan[,] as implemented on July 10, 2012, which
     required her to pay $25.00 per week. [Mattox] simply chose not
     to make the payments, prioritizing cosmetics for herself and hair
     products for her children over her legal obligation to pay fines
     and costs.
        [FN1]
              [Mattox] testified she was currently receiving
        approximately $1,000.00 per month in public assistance
        and food stamps. [Mattox] further testified that[,] in
        addition to public assistance and food stamps[,] she
        received approximately $100.00 per month in child
        support for her two children[,] until April of 2013.

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        Additionally, [Mattox] stated that for two years[,] she
        held a job working 30 hours per week at $10.00 per
        hour, but she stopped working in August 2012 (one
        month after conviction)[,] and she has not worked since
        then.    Although [Mattox] claimed [that] she stopped
        working due to stomach pain, [Mattox] is not receiving
        Social Security Disability and she failed to produce any
        documents to substantiate a medical disability.
        [Mattox’s] only fixed monthly expense is rent in the
        amount of $465. [Mattox] also testified to expenses for
        food, clothing, cosmetics for herself, and hair products
        for the children.

         Following the [de novo] hearing, [Mattox’s] summary appeal
     was dismissed. Pursuant to 24 P.S. § 13-1333, the judgment of
     [MDJ Roth] was reinstated and [Mattox] was ordered to pay all
     fines and costs as originally imposed by MDJ Roth. However, the
     sentence of incarceration imposed by [MDJ Roth] was modified
     to a sentence of five [] days [of] imprisonment in Lancaster
     County Prison for each of the five [] summary offenses included
     in this appeal.[FN2] [Mattox was only sentenced on five of her six
     summary offenses, as she already had served a term of five
     days in the Lancaster County Prison on her sixth conviction.]
     Those sentences were to run consecutive to one another,
     resulting in an aggregate sentence of twenty-five [] days [of]
     incarceration.[FN3]
        [FN2]
              Because the maximum period of incarceration
        allowed by law for each count is “a period not exceeding
        five (5) days,” the [sentencing c]ourt modified the jail
        sentence imposed by MDJ Roth to reflect a sentence
        [that] was consistent with the provisions of that specific
        statute. 24 P.S. § 13-1333(a)(1).
        [FN3]
              Imposition of the jail sentence was deferred until
        May 16, 2014, at which time [Mattox] was directed to
        report to Lancaster County Prison unless she had paid in
        full all fines and costs owing as a result of her guilty pleas
        to the underlying summary offenses, or unless [Mattox]
        filed an appeal to the Superior Court of Pennsylvania, in
        which case the sentence of incarceration would be
        stayed.




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J-S11044-15

Trial Court Opinion, 6/4/14, at 1-3 (footnotes in original, citations and some

capitalization omitted).

        Mattox timely filed a Notice of Appeal.2       On appeal, Mattox presents

the following issue for our review: “Did the Court of Common Pleas violate

[Mattox’s] right to counsel[,] as per Pa.R.Crim[.]P[]. [] 122 [3] and

[Pa.R.Crim.P.] 454[,4] by affirming [MDJ Roth’s O]rder imposing an 80[-]day

sentence of incarceration in Lancaster County Prison, along with fines and



2
  The trial court set forth in its June 4, 2014 Opinion an extensive procedural
history concerning Attorney Herring’s failure to timely file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and her
several requests for continuances. See Trial Court Opinion, 6/4/14, at 3-8.
However, this matter is not relevant to our disposition of Mattox’s appeal.
This Court reinstated the appeal following Attorney Herring’s omission and
our initial dismissal of the appeal, after which new counsel entered his
appearance on behalf of Mattox.
3
  Rule 122 provides, in relevant part, that “[c]ounsel shall be appointed … in
all summary cases, for all defendants who are without financial resources or
who are otherwise unable to employ counsel when there is a likelihood that
imprisonment will be imposed[.]” Pa.R.Crim.P. 122(A)(1).
4
    Rule 454 provides, in relevant part, as follows:

        [I]f, in the event of a conviction [in a summary case], there is a
        reasonable likelihood of a sentence of imprisonment or
        probation, the defendant shall be advised of the right to counsel
        and

           (a) upon request, the defendant shall be             given   a
           reasonable opportunity to secure counsel, or

           (b) if the defendant is without financial resources or is
           otherwise unable to employ counsel, counsel shall be
           assigned as provided in Rule 122[.]

Pa.R.Crim.P. 454(A)(2).

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J-S11044-15

costs, as a result of [Mattox’s] indigence …?”        Brief for Appellant at 2

(footnotes added).

      Based upon Rules 122(A)(1) and 454(A)(2), supra, Mattox maintains

that she is entitled to dismissal of all charges,5 arguing as follows:

      Mattox is indigent. [] Mattox made both MDJ Roth and [the trial
      court] Judge [] aware of her indigency and lack of financial
      resources to pay the assessed fines. As a result of her inability
      to pay the assessed fines, there was a likelihood imprisonment
      would ensu[]e. Due to [] Mattox’s indigency and the likelihood
      imprisonment would ensu[]e, [she] should have been advised of
      her right to counsel and had counsel appointed. As [Mattox] was
      not advised of her right to counsel and because no counsel was
      appointed for [her], the charges [] from the Magisterial District
      Court should be dismissed.

Id. at 6-7. Because Mattox’s issue presents a question of law, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Williams, 84 A.3d 680, 684 (Pa. 2014).

      Generally, “there is no requirement, either under the United States

Constitution or under the Pennsylvania Constitution, that defendants in all

summary cases be provided with counsel.”         Commonwealth v. Thomas,

507 A.2d 57, 59 (Pa. 1986) (footnote omitted); see also Argersinger v.

Hamlin, 407 U.S. 25, 43 (1972). Rather, the right to counsel in summary

cases attaches only to those defendants who are indigent or “unable to

employ counsel when there is a likelihood that imprisonment will be

imposed[.]”      Pa.R.Crim.P.    122(A)(1)    (emphasis    added);       see   also


5
  Mattox does not challenge the propriety of her underlying convictions for
compulsory school attendance, as she did not timely file an appeal from
these convictions. See Pa.R.Crim.P. 460(a).

                                   -5-
J-S11044-15

Commonwealth v. Cannon, 954 A.2d 1222, 1227 (Pa. Super. 2008)

(stating that “Pa.R.Crim.P. 122 authorizes the court to conduct case-by-case

evaluations of individual defendants’ circumstances in order to ascertain

whether counsel should be appointed.” (footnote, quotation marks and

citation omitted)). Therefore, “[t]here is no right to counsel where the only

sentence provided for in a summary violation is a fine and costs.”

Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa. Super. 2005) (citing

Commonwealth v. Long, 688 A.2d 198, 201 (Pa. Super. 1996)).

      In the instant case, the summary offenses for which Mattox was

charged did not carry a possible sentence of imprisonment; rather, the only

possible penalty, and the penalty that was actually imposed, was the

imposition of fines and costs.   See 24 P.S. § 13-1333(a)(1). Accordingly,

Mattox was not entitled to the appointment of counsel. See Smith, supra;

see also Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa. Super.

2006) (where the indigent appellant was charged with a summary offense

that was punishable by imprisonment, but she was penalized with only a fine

and court costs, holding that “[b]ecause the trial court determined before

trial that a term of imprisonment was unlikely, and no term of imprisonment

was imposed, the trial court correctly concluded that it had no obligation to

appoint counsel. See Pa.R.Crim.P. 122(A)(1).”).

      Moreover, in the trial court’s Opinion issued after the de novo hearing,

the   court   correctly   observed   that   “[e]ven   when   the   possibility   of

imprisonment may arise upon a default of fines and costs payments, the

                                     -6-
J-S11044-15

right to counsel does not attach at proceedings to determine a defendant’s

guilt or innocence of the summary offense itself.”          Trial Court Opinion,

6/4/14, at 7 n.5 (citing Bacik v. Commonwealth, 434 A.2d 860, 862-63

(Pa. Cmwlth. 1981) (applying the predecessor Rules to Pa.R.Crim.P. 122 and

456,6 and holding that the Magisterial District Court properly denied the

indigent defendant’s request for the appointment of counsel where (1) the

only penalty authorized by the ordinance in question was fines and costs;

and (2) “the possibility of a sentence of imprisonment only comes into play

upon a determination of default in a second and subsequent hearing” if the

court finds that the defendant had the ability to pay.)).

      At the de novo hearing in this case, the trial court conducted a

thorough inquiry concerning Mattox’s financial status, income, employment

history, medical status, and monthly expenses, in order to determine her

ability to pay the fines and costs. See N.T., 4/10/14, at 25-55. Mattox was

represented by Attorney Herring at the de novo hearing. After considering

Mattox’s testimony, and evaluating her credibility, the trial court found that

Mattox had the ability to pay her fines and costs (under the installment plan

of $25.00 per week), but refused to do so. See id. at 57-58, 63; see also

Trial Court Opinion, 6/4/14, at 2.




6
  Rule 456 provides, in relevant part, that, if a defendant fails to pay fines,
costs or restitution as ordered, he or she can only be imprisoned if, after
hearing, it is determined that the defendant has the ability to pay and
refuses. See Pa.R.Crim.P. 456(B), (C).

                                     -7-
J-S11044-15

     Based upon the foregoing, we conclude that there was no violation of

Mattox’s right to counsel, and thus affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2015




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