J-S66035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
REYNALDO ADOLFO SUAREZ,                  :
                                         :
                  Appellant              :           No. 960 MDA 2014

                Appeal from the Order entered on May 5, 2014
                in the Court of Common Pleas of Berks County,
                Criminal Division, No. CP-06-CR-0004549-2009

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 18, 2014

     Reynaldo Adolfo Suarez (“Suarez”) appeals, pro se, from the Order

denying his “Motion to Discontinue Payment of Costs and Fines” (hereinafter

“Fines Motion”). We affirm.

     In April 2010, a jury convicted Suarez of several drug-related offenses,

including possession with intent to deliver a controlled substance (“PWID”)

and possession of a firearm with an altered manufacturer’s number. 1 A few

days later, the Commonwealth gave Suarez Notice of its intent to seek the

imposition of a mandatory minimum sentence, pursuant to 18 Pa.C.S.A.



1
  The convictions arose out of a drug raid of a residence occupied by Suarez
and several others (hereinafter “the residence”), in which the police found,
among other things, a large amount of cocaine (in excess of ten grams),
marijuana, packaging materials and weapons. This Court fully set forth the
facts in its Memorandum issued in connection with Suarez’s direct appeal.
See Commonwealth v. Suarez, 40 A.3d 182 (Pa. Super. 2011)
(unpublished memorandum at 1-4).
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§ 7508(a)(3)(ii) (governing drug trafficking sentencing and penalties), of at

least three years in prison plus a mandatory fine of $15,000.00.        In June

2010, the trial court sentenced Suarez to an aggregate term of five to ten

years in prison, and imposed a fine of $15,000.00 (hereinafter referred to as

“the fine”).    Suarez did not file a post-sentence motion challenging his

sentence or the fine.

        Although Suarez failed to timely file a direct appeal, this Court

permitted him to file a Notice of Appeal nunc pro tunc, after which this Court

affirmed his judgment of sentence. See Suarez, 40 A.3d 182 (unpublished

memorandum).          Suarez did not seek allowance of appeal with the

Pennsylvania Supreme Court.

        In November 2012, Suarez filed a timely counseled Petition for relief

under    the   Post   Conviction   Relief   Act   (“PCRA”).2   The   PCRA   court

subsequently dismissed Suarez’s PCRA Petition, and Suarez filed a pro se

appeal. On July 28, 2014, this Court vacated the Order dismissing Suarez’s

PCRA Petition and remanded for the PCRA court to conduct a hearing

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to

determine whether Suarez’s decision to proceed with his appeal pro se was

knowing, intelligent and voluntary. See Commonwealth v. Suarez, 2076

MDA 2013 (Pa. Super. filed July 28, 2014) (unpublished memorandum).




2
    See 42 Pa.C.S.A. §§ 9541-9546.


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      While the appeal was pending, on April 1, 2014, Suarez, proceeding

pro se, filed the Fines Motion, asserting that the fine is unconstitutionally

excessive and that the trial court deprived him of due process by failing to

conduct a hearing to determine whether he has the ability to pay the fine.

By an Order dated May 5, 2014, the trial court denied the Fines Motion,

without conducting a hearing. Suarez timely filed a pro se Notice of Appeal.

      On appeal, Suarez presents the following issue for our review:     “Did

the trial court err in imposing a non-mandatory $15,000.00 fine without

inquiring as to [Suarez’s] ability to pay, thereby violating the 8 th and 14th

Amendments [to the United States Constitution]?” Brief for Appellant at 5

(capitalization omitted).

      Due process challenges, and challenges that a fine is excessive under

our state and national Constitutions, involve a question of law; therefore,

our standard of review is de novo and our scope of review is plenary. See

Commonwealth v. Eisenberg, 2014 Pa. LEXIS 2106, **25-26 (Pa. Aug.

19, 2014); Commonwealth v. Brown, 52 A.3d 1139, 1162 (Pa. 2012).

      Initially, the Commonwealth argues that the trial court lacked

jurisdiction to address Suarez’s claim for two reasons: (1) Suarez failed to

preserve any challenge to the fine component of his sentence because he

never filed a post-sentence motion, and did not challenge the fine until four

years after his judgment of sentence was imposed; and (2) since this claim

implicates the legality of Suarez’s sentence, which is a cognizable claim



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under the PCRA, Suarez should have raised it under the PCRA, but such

claim was not filed within the PCRA’s jurisdictional time limitation. See Brief

for the Commonwealth at 8-11. Despite the Commonwealth’s contentions,

we, like the trial court, will briefly address the merits of Suarez’s claim.

       Suarez argues that the trial court deprived him of due process by

imposing the fine without conducting a hearing to determine his ability to

pay.    See Brief for Appellant at 9-11.       Suarez points to 42 Pa.C.S.A.

§ 9726(c)(1), the general fines provision in the Judicial Code, which provides

that “[t]he court shall not sentence a defendant to pay a fine unless it

appears of record that[] … the defendant is or will be able to pay the fine ….”

Brief for Appellant at 10. Additionally, Suarez asserts that the fine was not

mandatory.     Id. at 9, 10.      Suarez further “avers that [the] fine was

excessive, in light of the evidence which negated his direct participation in

the sale of narcotics ….” Id. at 9; see also id. (wherein Suarez argues that

he “does not dispute that mandatory fines may be valid as a punitive and

deterrent measure against drug trafficking offenders.         However, he does

dispute that the amount of this non-mandatory fine[,] based solely on

constructive possession, as opposed to actual possession or sales[,] is

excessive and violative of the Eighth Amendment.”).

       First, it is clear that the fine was, in fact, mandatory. Section 7508 of

the Crimes Code provides, in pertinent part, as follows:




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         (a) General rule.-- Notwithstanding any other provisions of this
         or any other act to the contrary, the following provisions shall
         apply:

            ***

            (3) A person who is convicted of violating section
            13(a)(14), (30)[, i.e., PWID,] or (37) of The Controlled
            Substance, Drug, Device and Cosmetic Act where the
            controlled substance is coca leaves or is any salt,
            compound, derivative or preparation of coca leaves …
            shall, upon conviction, be sentenced to a mandatory
            minimum term of imprisonment and a fine as set forth in
            this subsection:

               ***

               (ii) when the aggregate weight of the compound or
               mixture containing the substance involved is at least
               ten grams and less than 100 grams; three years in
               prison and a fine of $15,000 or such larger amount
               as is sufficient to exhaust the assets utilized in and
               the proceeds from the illegal activity.

18      Pa.C.S.A.   §   7508(a)(3)(ii)    (emphasis   added).   Accordingly,   the

sentencing court in the instant case was statutorily required to impose the

fine.

         Additionally, after review, we find no merit to Suarez’s due process

challenge or his claim that the fine is excessive and unconstitutional. 3 In its

Opinion issued in support of the Order denying the Fines Motion, the trial

court discussed Suarez’s claims and the applicable law, stating as follows:

               [Concerning Suarez’s due process challenge, a]lthough it is
         true that the general fine provision[, 42 Pa.C.S.A. § 9726(c)(1)],

3
  Suarez concedes that “[h]ad th[e] fine been a mandatory one imposed
pursuant to [section] 7508, [Suarez’s] argument may not survive a
Constitutional challenge.” Brief for Appellant at 10.


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     requires a sentencing court to inquire as to the ability to pay a
     fine imposed, [section] 9726 does not apply to the mandatory
     fine provisions of 18 Pa.C.S.A. § 7508. See Commonwealth v.
     Brown, 566 A.2d 619[, 621] (Pa. Super. 1989).            For this
     reason, [Suarez’s] right to a hearing to determine his ability to
     pay is not afforded.

           [Suarez] further claims that the excessive fine imposed
     violates Article I, Section 13 of the Pennsylvania Constitution
     and the Eighth Amendment to the United States Constitution.
     [Suarez] finds the mandatory fine to be excessive [because]
     there was no evidence presented at trial that he was actively
     engaged in drug dealing nor that he sold narcotics to anyone.

            In Commonwealth v. Gripple, 613 A.2d 600 (Pa. Super.
     1992), the Superior Court held [that] “[t]here is no
     constitutional requirement that invalidates the imposition of an
     otherwise valid fine merely because a defendant lacks the
     immediate ability to pay it, or would have difficulty in doing so.”
     Id. at 601 [(citation and emphasis omitted)]. The [C]ourt went
     on to state that “there is no evidence to suggest that Article I,
     Section 13 of the Pennsylvania Constitution is in anyway
     offended when those properly and justly convicted of drug
     dealing are sentenced to pay for the price they cost society.”
     Id. at 603. Furthermore, the evidence presented at [Suarez’s]
     trial clearly supports the finding that [Suarez] was actively
     engaged in drug dealing.[4] …

           [Suarez] final[ly] claim[s] [] that the purpose of the
     imposition of fines established by the Legislature are believed to
     be unwarranted in his case because he was not actively engaged
     in drug trafficking.

           In Commonwealth v. Logan, 590 A.2d 300 (Pa. Super.
     1991), the Pennsylvania [Superior] Court held that, “while, in
     general, sentencing is within the broad discretion of the trial
     court, 18 Pa.C.S.A. § 7508 does not unconstitutionally infringe
     upon the sentencing prerogative of the judiciary, as it is the

4
   In Suarez’s direct appeal, this Court rejected his challenge to the
sufficiency of the evidence supporting his convictions, determining that the
trial court properly found that Suarez constructively possessed the drugs
found in the residence.       See Suarez, 40 A.3d 182 (unpublished
memorandum at 6-8).


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      province of the legislature to prescribe punishment for crimes.”
      [Logan,] 590 A.2d 301-[]02. In Gripple, the [C]ourt affirmed
      Logan by reiterating that by imposing such fines under [section]
      7508, the legislature has exhibited its “desire to punish drug
      dealers by having them reach into the large profits they had
      accumulated during their illegal activity and turn specific sums,
      proportionate to the size of the drug distribution operation, over
      to the Commonwealth.” Id. at 602. In light of the evidence
      provided at trial, it is clear that [Suarez] was actively engaged in
      drug dealing[. T]he fine[] established by the legislature in this
      matter [is] far from unwarranted considering the amount of
      contraband retrieved from … the residence[].

Trial Court Opinion, 5/9/14, at 4-5 (unnumbered; footnote added).            We

agree with the trial court’s rationale, which is supported by the law, and

affirm on this basis in rejecting Suarez’s claim. See id.

      Based upon the foregoing, we discern no error of law by the trial court

and we thus affirm the Order denying Suarez’s Fines Motion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




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