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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                                :             PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JENNA ELIZABETH SNEERINGER,                 :
                                                :
                       Appellant                :          No. 1344 MDA 2019

                 Appeal from the Order Entered August 13, 2019
                  in the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0005275-2015

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED: MARCH 2, 2020

        Jenna Elizabeth Sneeringer (“Sneeringer”) appeals from the Order

finding her in contempt of court (the “Contempt Order”), and remanding her

to jail until she pays $800 of the court costs previously imposed. We vacate

the Contempt Order and remand for further proceedings.

        On September 6, 2017, Sneeringer pled guilty to driving under the

influence of a controlled substance.1          On October 24, 2016, the trial court

sentenced Sneeringer to six months of intermediate punishment, plus a

$1,000 fine and court costs. Relevant to this appeal, on April 3, 2017, the

York    County Probation Department             filed    a Petition   for   Intermediate

Punishment Violation. On April 25, 2019, the trial court found Sneeringer in

violation of her probation, sentenced her to six months’ probation, and

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1   75 Pa.C.S.A. § 3802(d)(2).
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ordered her to pay $800 within 48 hours of her release from the York County

Prison (“YCP”).

      On May 7, 2019, the trial court issued a Rule to Show Cause why

Sneeringer should not be held in contempt, based upon her failure to pay $800

within 48 hours of her release from the YCP. Trial Court Order, 5/7/19, at 1.

The Rule was returnable on May 29, 2019. On May 9, 2019, Hollianne C.

Snyder, Esquire (“Attorney Snyder”), of the public defender’s office, entered

her appearance on Sneeringer’s behalf. On May 29, 2019, when Sneeringer

failed to appear for the hearing, the trial court issued a bench warrant for her

arrest.

      On August 13, 2019, Sneeringer appeared before the trial court, without

representation, for a contempt hearing on her failure to tender the $800

payment. N.T., 8/13/19, at 1. Sneeringer explained to the trial court that

she had received an eviction notice and “didn’t know what to do.” Id. at 2.

The following discussion then transpired:

      THE COURT: Do you have the $800 now?

      [Sneeringer]: On the 23rd.

      THE COURT: When you get it and pay it, we’ll release you.
      [Sneeringer] is remanded until she pays the $800 she promised
      to pay the last time.

      [Sneeringer]: Can I ask you a question?

      THE COURT: I'm not changing my mind.




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Id.   On August 13, 2019, the trial court entered the Contempt Order

remanding Sneeringer to the YCP “until she pays $800.” Trial Court Order,

8/13/19, at 1. The trial court imposed no time limit on Sneeringer’s period of

incarceration.

      On August 14, 2019, Brian McNeil, Esquire, of the public defender’s

office, entered his appearance on behalf of Sneeringer. On that same date,

Sneeringer filed a Notice of Appeal, an Emergency Motion for a stay pending

appeal, and an Application to proceed in forma pauperis. On August 15, 2019,

the trial court directed Sneeringer to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal. Less than an hour later, the

trial court entered an Order vacating its August 13, 2019, Order, and directing

that Sneeringer be released from the YCP. On September 5, 2019, Sneeringer

filed a Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Sneeringer presents the following claims for our review:

      [A.] Does Pa.R.A.P. 1701 require quashing this appeal where
      consideration of the [C]ontempt [O]rder was neither sought nor
      expressly granted, and is the case moot under Commonwealth
      v. Mauk[, 185 A.3d 406 (Pa. Super. 2019),] and Orfield v.
      Weindel[, 52 A.3d 275 (Pa. Super. 2012)]?

      [B.] In this civil contempt proceeding for failure to pay costs and
      fines, did the trial court violate [] Sneeringer’s right to counsel[,]
      as set forth in this Court’s rulings in Commonwealth v. Diaz[,
      191 A.3d 850 (Pa. Super. 2018),] and [] Mauk[,] by proceeding
      with no counsel present and without a waiver of counsel?

      [C.] Did the trial court, by holding Sneeringer in contempt without
      inquiring into the current state of her finances[,] or making the

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      necessary findings regarding the reasons for her failure to pay,
      violate Pennsylvania law as well as [Sneeringer’s] due process
      rights?

      [D.] Should the purge component of the contempt judgment be
      vacated where it lacked any evidentiary foundation and did not
      give Sneeringer a present opportunity to purge the contempt?

Brief for Appellant at 4 (issues renumbered).

      We review civil contempt orders for an abuse of discretion. Orfield, 52

A.3d at 278.    “The court abuses its discretion if it misapplies the law or

exercises its discretion in a manner lacking reason.” Childress v. Bogosian,

12 A.3d 448, 465 (Pa. Super. 2011).

      Sneeringer first claims that Pennsylvania Rule of Appellate Procedure

1701 does not require this Court to quash the instant appeal.         Id. at 30.

Sneeringer asserts that the trial court did not expressly grant reconsideration

of its Order, and the matter is not moot. Id. We agree.

      Rule 1701 provides that, “[e]xcept as otherwise prescribed by these

rules, after an appeal is taken or review of a quasijudicial order is sought, the

trial court or other government unit may no longer proceed further in the

matter.” Pa.R.A.P. 1701(a). Although a trial court may modify or rescind any

order within 30 days after its entry, it may only do so “if no appeal from

such order has been taken or allowed.” 42 Pa.C.S.A. § 5505 (emphasis

added).

      Our review of the record discloses that the trial court entered its

Contempt Order on August 13, 2019. Sneeringer filed a Notice of Appeal of


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the Contempt Order on August 14, 2019, thereby divesting the trial court of

jurisdiction to modify or rescind its Contempt Order. Consequently, Pa.R.A.P.

1701 does not preclude our exercise of jurisdiction over Sneeringer’s appeal.

      In her second claim, Sneeringer argues that the trial court improperly

proceeded with her contempt hearing, despite her lack of representation and

without securing her waiver of counsel. Brief for Appellant at 17. Sneeringer

argues that, where incarceration is a possibility, the trial court must afford the

defendant a “timely” opportunity to consult with counsel, before appearing

before the court. Id. at 18. According to Sneeringer, the trial court never

mentioned counsel on the record, and no appropriate waiver of counsel,

pursuant to Pa.R.Crim.P. 121, took place. Brief for Appellant at 18.

      “[A]n indigent defendant faced with incarceration at a contempt

proceeding is entitled to counsel.” Diaz, 191 A.3d at 862.

      [U]pon the trial court’s determination at the civil contempt
      hearing that there is a likelihood of imprisonment for contempt
      and that the defendant is indigent, the court must appoint counsel
      and permit counsel to confer with and advocate on behalf of the
      defendant at a subsequent hearing. An indigent defendant has
      the option of knowingly, intelligently, and voluntarily waiving that
      right to appointed counsel. See generally Pa.R.Crim.P. 121
      (identifying information a court should elicit from the defendant
      to ensure a proper waiver of the right to counsel).

Id. at 862-63.

      Here, our review discloses that on May 9, 2019, Attorney Snyder had

entered her appearance on behalf of Sneeringer.         Notwithstanding, at the

contempt hearing, the trial court failed to inquire whether Sneeringer had


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representation, or whether a waiver-of-counsel colloquy was necessary.2

Because Sneeringer was entitled to representation at the contempt hearing, 3

we vacate the Contempt Order, and remand for a new hearing, at which

Sneeringer shall be afforded the right to counsel. See id. at 862.

       In her third claim, Sneeringer argues that the trial court improperly

found her in contempt, without first inquiring into the current state of her

finances, and without making the required findings regarding her ability to

pay. Brief for Appellant at 20. Sneeringer asserts that only a “willful” failure

to pay can give rise to a contempt finding. Id. at 21. Sneeringer argues that

a trial court is required to examine the defendant’s ability to pay “every time

someone appears or reappears for a costs-and-fines proceeding, because the

person’s financial situation[] may have changed since the last time he or she

was before the court.”          Id. at 22 (quoting Mauk, 185 A.3d at 411).

Sneeringer contends that, “[b]y failing to conduct such an inquiry and make

findings regarding [her] reasons for nonpayment, the trial court unlawfully

held her in contempt.” Id. at 24. We agree.



____________________________________________


2 It is apparent that incarceration was a likely result from the contempt
hearing. In fact, the trial court remanded Snyder to the YCP following the
hearing.

3 Should Sneeringer wish to proceed pro se, the trial court is directed to
conduct an appropriate waiver-of-counsel colloquy on the record. See
Pa.R.Crim.P. 121 (setting forth the information to be elicited by the trial court
in order to ensure that the waiver of the right to counsel is voluntary, knowing
and intelligent).

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      The United States Supreme Court has made it clear that, “if the State

determines a fine or restitution to be the appropriate and adequate penalty

for the crime, it may not thereafter imprison a person solely because [s]he

lacked the resources to pay it.” Bearden v. Georgia, 461 U.S. 660, 667-68

(1983). “Process is due in all costs-and-fines proceedings." Mauk, 185 A.3d

at 411.     “[A] court may not constitutionally imprison someone for

nonpayment of court costs and fines alone. Instead, it must be proved that

the person has willfully refused to pay the fine or restitution when he has the

means to pay ....” Id. (citation and internal quotation marks omitted).

      The Judicial Code sets forth specific procedures for when a defendant

defaults in payment of a fine, court costs, or restitution:

      (b) Procedures regarding default.—

        (1) If a defendant defaults in the payment of a fine, court
        costs or restitution after imposition of sentence, the issuing
        authority or a senior judge or senior magisterial district judge
        appointed by the president judge for the purposes of this
        section may conduct a hearing to determine whether the
        defendant is financially able to pay.

        (2) If the issuing authority, senior judge or senior magisterial
        district judge determines that the defendant is financially
        able to pay the fine or costs, the issuing authority, senior
        judge or senior magisterial district judge may turn the
        delinquent account over to a private collection agency or
        impose imprisonment for nonpayment, as provided by law.

        (3) If the issuing authority, senior judge or senior magisterial
        district judge determines that the defendant is without the
        financial means to pay the fine or costs immediately or in a
        single remittance, the issuing authority, senior judge or
        senior magisterial district judge may provide for payment in
        installments. In determining the appropriate installments,

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        the issuing authority, senior judge or senior magisterial
        district judge shall consider the defendant’s financial
        resources, the defendant’s ability to make restitution and
        reparations and the nature of the burden the payment will
        impose on the defendant. If the defendant is in default of a
        payment or advises the issuing authority, senior judge or
        senior magisterial district judge that default is imminent, the
        issuing authority, senior judge or senior magisterial district
        judge may schedule a rehearing on the payment schedule.
        At the rehearing the defendant has the burden of proving
        changes of financial condition such that the defendant is
        without the means to meet the payment schedule. The
        issuing authority, senior judge or senior magisterial district
        judge may extend or accelerate the schedule, leave it
        unaltered or sentence the defendant to a period of
        community service as the issuing authority, senior judge or
        senior magisterial district judge finds to be just and
        practicable under the circumstances.

42 Pa.C.S.A. § 9730(b).

      Here, the trial court failed to follow the procedures outlined above. The

trial court made no inquiry regarding the reasons for Sneeringer’s default, or

Sneeringer’s ability to make payment, prior to sending her to the YCP. For

this reason, also, we vacate the Contempt Order and remand for further

proceedings in accordance with 42 Pa.C.S.A. § 9730(b), Bearden and Mauk.

      Finally, Sneeringer claims that the purge component of the Contempt

Order should be vacated where it lacked any evidentiary foundation and failed

to afford her a present opportunity to purge the contempt. Brief for Appellant

at 27. Sneeringer argues that the purge condition set by the trial court, a

payment of $800, was entered without any evidentiary support indicating that

Sneeringer could afford this payment. Id.




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      “The law in this Commonwealth is … that the trial court must set the

conditions for a purge in such a way as the contemnor has the present ability

to comply with the order.”     Hyle v. Hyle, 868 A.2d 601, 605 (Pa. Super.

2005).   See, e.g., Barrett v. Barrett, 368 A.2d 616, 622 (Pa. 1977)

(reversing a contempt order where the alleged contemnor had no present

ability to pay the purge amount set by the court); Muraco v. Pitulski, 368

A.2d 624, 626 (Pa. 1977) (reversing a contempt order where there was no

evidence that the alleged contemnor had the present ability to pay the purge

amount on the day of the contempt hearing); see, contra, Sinaiko v.

Sinaiko, 664 A.2d 1005, 1008-10 (Pa. Super. 1995) (where the husband had

the present ability to pay, determining that the trial court did not abuse its

discretion when finding the husband in contempt, and immediately remanding

him to the Bucks County Prison, with a purge condition requiring the payment

of $39,936.00).

      Our review of the record discloses no evidence regarding Sneeringer’s

present ability to pay the purge condition set by the trial court. We therefore

vacate the trial court’s Contempt Order on this basis as well, and remand for

a hearing that includes an inquiry as to Sneeringer’s ability to meet the purge

condition set by the trial court.

      Contempt Order vacated.       Case remanded for further proceedings

consistent with this Memorandum. Superior Court jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/02/2020




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