J-S54042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    KENDALL HUDSON                        :
                                          :
                     Appellant            :    No. 526 WDA 2017

           Appeal from the Judgment of Sentence November 9, 2016
                In the Court of Common Pleas of Forest County
             Criminal Division at No(s): CP-27-CR-0000077-2016


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 22, 2017

        Appellant, Kendall Hudson, appeals from the judgment of sentence

entered in the Forest County Court of Common Pleas after he pleaded guilty

to one count of assault by prisoner.1 Appellant challenges the legality of the

trial court’s sentence of 40 to 120 months’ imprisonment and the imposition

of a $2,500 fine.      Appellant’s counsel (“Counsel”) has filed a petition to

withdraw and submitted an Anders/Santiago2 brief.          We grant Counsel’s

petition to withdraw and affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2703(a).
2
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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      On April 22, 2016, Appellant struck a correctional officer in the face

several times with a closed fist. The officer suffered a laceration under his

left eye and a broken nose. Appellant was charged with aggravated assault,

assault by prisoner, and simple assault.

      On November 9, 2016, Appellant entered an open guilty plea to

assault by prisoner, a felony of the second degree. That same day, the trial

court sentenced him to serve 40 to 120 months’ imprisonment and pay a

fine of $2,500 and the costs of prosecution. The trial court nol prossed the

remaining charges.

      On November 21, 2016, Counsel timely filed a post-sentence motion

for reconsideration claiming that the maximum term of imprisonment and

fine were excessive.3 The trial court held a hearing on December 16, 2016,

and denied Appellant’s post-sentence motion that same day.           Appellant

timely filed a notice of appeal. In response to the trial court’s order for the

submission of a Pa.R.A.P. 1925(b) statement, Counsel filed a statement of

her intent to file an Anders/Santiago brief. See Pa.R.A.P. 1925(c)(4).

      Counsel’s Anders/Santiago brief identifies the following claims for

review:

          I. Whether Appellant’s sentence is illegal because his
          maximum period of incarceration is more than twice his
          minimum period of incarceration?

3
 Because the tenth day following sentencing fell on Saturday, November 19,
2016, Appellant’s counseled post-sentence motion was timely filed. See 1
Pa.C.S. § 1908. We note that Appellant also sent to the trial court a pro se
motion asserting that the maximum aspect of his sentence was illegal.



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        II. Whether Appellant’s sentence is illegal where the
        sentencing court imposed fines and costs without taking
        into account Appellant’s ability to pay?

Anders/Santiago Brief at 4.

     We    first   consider   Counsel’s   request    to   withdraw.      See

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008).

        Prior to withdrawing as counsel on a direct appeal under
        Anders, counsel must file a brief that meets the
        requirements established by our Supreme Court in
        [Santiago]. The brief must:

           (1) provide a summary of the procedural history and
           facts, with citations to the record;

           (2) refer to anything in the record that counsel believes
           arguably supports the appeal;

           (3) set forth counsel’s reasons for concluding that the
           appeal is frivolous; and

           (4) state counsel’s reasons for concluding that the
           appeal is frivolous.     Counsel should articulate the
           relevant facts of record, controlling case law, and/or
           statutes on point that have led to the conclusion that
           the appeal is frivolous.

        Santiago, 978 A.2d at 361. Counsel also must provide a
        copy of the Anders brief to his client. Attending the brief
        must be a letter that advises the client of his right to: “(1)
        retain new counsel to pursue the appeal; (2) proceed pro
        se on appeal; or (3) raise any points that the appellant
        deems worthy of the court[’]s attention in addition to the
        points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted).




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      Instantly, Counsel has complied with the procedures for petitioning to

withdraw and submitted a brief that complies with the requirements of

Anders and Santiago. Therefore, we proceed to an independent review to

determine “whether the appeal is in fact frivolous.” Id. at 882 n.7 (citation

and quotation marks omitted).

      Appellant’s first intended issue is that the maximum sentence of 120

months’ imprisonment is illegal.4    According to Counsel, Appellant claims

that the maximum sentence is illegal because it is more than double his

minimum sentence. We agree that this claim is frivolous.

      The Sentencing Code provides, in relevant part, that the trial court

must “impose a minimum sentence of confinement which shall not

exceed one-half of the maximum sentence imposed.”               42 Pa.C.S. §

9756(b)(1) (emphases added).      The permissible maximum sentence for a

felony of the second degree is “not more than ten years.”        18 Pa.C.S. §

1103(2).




4
  Although this claim was not preserved in Appellant’s counseled post-
sentence motion, this Court may address it sua sponte as a challenge to the
legality of the sentence. See Commonwealth v. Milhomme, 35 A.3d
1219, 1221 (Pa. Super. 2011) (reiterating that “[a] challenge to the legality
of sentence is non-waivable[,]” and that “[o]ur scope of review of challenges
to the legality of a sentence is plenary, and the standard of review is de
novo”). We note that although Appellant’s pro se post-sentence motion is
technically a nullity because it was filed while Counsel represented Appellant,
he asserted that “the overlapping maximum . . . isn’t even with the
minimum.” Appellant’s Pro Se Post-Sentence Mot., 11/18/17, ¶ 8.



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      Although Section 9756(b)(1) provides that a maximum sentence be at

least double the minimum sentence imposed by the trial court, it does not

limit the trial court’s authority to impose a maximum sentence greater than

double the minimum.     Thus, Counsel properly determined that Appellant’s

intended claim misconstrues the controlling statute.   Moreover, Appellant’s

maximum sentence did not exceed the statutory maximum for the offense.

See 18 Pa.C.S. § 1103(2).    Accordingly, we conclude Appellant’s intended

challenge to the maximum aspect of his sentence is frivolous.

      The second issue identified by Counsel is a challenge to the costs of

prosecution5 and the $2,500 fine.    According to Counsel, Appellant claims

that these sanctions are illegal because “the sentencing court imposed fines

and   costs   without   taking   into   account   [his]   ability   to   pay.”

Anders/Santiago Brief at 10. We conclude this issue is also frivolous.

      With respect to the costs of prosecution, 16 P.S. § 1403 provides, in

part: “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. Section 1403 does

not expressly provide for consideration of the defendant’s ability to pay

when the costs of prosecution are imposed as part of the sentence. It is well


5
  The docket indicates that Appellant was assessed $50 for the costs of
prosecution. Appellant’s total costs and fees in this case was $572.



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settled that a defendant is not entitled to an ability to pay hearing before the

imposition of costs.     See Commonwealth v. Hernandez, 917 A.2d 332,

337 (Pa. Super. 2007).        Therefore, Appellant’s claim that the trial court

failed to consider his ability to pay before imposing costs lacks any legal

basis.

         As to fines, 42 Pa.C.S. § 9726 authorizes the trial court to sentence a

defendant to pay a fine in addition to a sentence of imprisonment if “the

court is of the opinion that a fine is specially adapted to deterrence of the

crime involved or to the correction of the defendant.”           42 Pa.C.S. §

9726(b)(2).       Section 9726(c) states: “The court shall not sentence a

defendant to pay a fine unless it appears of record that: (1) the defendant is

or will be able to pay the fine; and (2) the fine will not prevent the

defendant from making restitution or reparation to the victim of the crime.”

42 Pa.C.S. § 9726(c).

         This Court has stated that “a claim that the trial court failed to

consider the defendant’s ability to pay a fine can fall into several distinct

categories.”     Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa. Super.

2013) (en banc).      Possible claims include: (1) the absence of “a record of

the defendant’s ability to pay before the sentencing court[;]” (2) the failure

of “the sentencing court [to] consider evidence of record[;]” and (3) the

failure of the sentencing court “to permit the defendant to supplement the

record.” Id. The second and third categories go to the discretionary aspect



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of the sentence.      Id. at 1274.      Only the first category—i.e., the complete

absence of a record of the defendant’s ability to pay—constitutes a challenge

to the legality of the sentence. Id. at 1273.

      Here, Counsel’s analysis focuses on a legality of sentence challenge.

Counsel     notes    that    this   Court   in   Boyd    held   that   the   presentence

investigation report (“PSI”) constitutes part of the record and that the

information contained in the PSI may provide a sufficient evidentiary basis

for   the    trial   court    to    consider     the    defendant’s    ability   to   pay.

Anders/Santiago Brief at 11; see Boyd, 73 A.3d at 1274 (noting that the

PSI in that case contained information regarding the defendant’s educational

and employment history, as well as his existing assets). Counsel also notes

that the $2,500 fine is “relatively modest.” Anders/Santiago Brief at 11.

We agree that Appellant is not entitled to relief on this claim for separate

reasons.

      Initially, we note that Counsel represented Appellant in the trial court

and had an opportunity to review and amend Appellant’s PSI before

sentencing.      See N.T. Sentencing, 11/9/16, at 6-7 (indicating present

counsel reviewed the PSI and made a correction that Appellant received a

high school diploma).          Nevertheless, the PSI was not made part of the

certified record transmitted to this Court, which hampers our ability to

conduct an independent review of Counsel’s assessment of this claim.




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      In any event, the record reveals that the trial court was informed of

several factors relevant to Appellant’s ability to pay. Appellant was a high

school graduate, was twenty-eight years old at the time of sentencing in the

present case, and, of particular significance, was serving previously imposed

sentences, the minimums of which would not expire until approximately

2050. Id. at 7, 10. Thus, the trial court was apprised of factors relevant to

Appellant’s ability to pay at the time of sentencing. Accordingly, Appellant’s

intended challenge to the legality of the trial court’s failure to consider his

ability to pay lacks support in the record.

      As to the discretionary aspects of Appellant’s ability to pay claim, it is

well settled that “[a] challenge to the discretionary aspects of a sentence

must be considered a petition for permission to appeal, as the right to

pursue such a claim is not absolute.”         Commonwealth v. McAfee, 849

A.2d 270, 274 (Pa. Super. 2004) (citation omitted).       One requirement for

preserving a discretionary aspects claim for appeal is that the defendant

object in the trial court. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.

Super. 2003). If the defendant does not give the trial court an opportunity

to reconsider or modify its sentence on a specific basis, the claim will be

deemed waived. Id.; see also Pa.R.A.P. 302(a).

      Instantly, Appellant challenged the imposition of the costs and the fine

as excessive in his post-sentence motion. At the beginning of the hearing on

the post-sentence motion, Appellant’s counsel reiterated that Appellant



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believed that “the fine that was imposed is excessive as he lacks the ability

to pay.”      N.T., 12/16/16, at 3.      The trial court thereafter discussed its

decision to impose the 40 to 120 month term of imprisonment and denied

the post-sentence motion.      Id. at 5-7.       No further discussions occurred

regarding the fine.    Aside from the boilerplate assertion that the fine was

excessive in light of Appellant’s ability to pay, Appellant’s counsel failed to

identify a specific discretionary argument regarding the adequacy of the trial

court’s consideration of Appellant’s ability to pay.           Therefore, we are

constrained to conclude that a discretionary challenge to the imposition of

the fine is waived, and that this Court is precluded from addressing that

issue. See Pa.R.A.P. 302(a); Mann, 820 A.2d at 794.

      Thus, we concur with the assessment of Appellant’s counsel that

Appellant’s    intended   claims   are    frivolous   and   having   conducted   an

independent review, we discern no further issues of arguable merit

preserved for review. Accordingly, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed.           Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 9/22/2017




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