J-S34039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON KOKINDA,

                            Appellant                No. 3667 EDA 2016


                     Appeal from the Order October 31, 2016
                 in the Court of Common Pleas of Lehigh County
               Criminal Division at Nos.: CP-39-CR-0004541-2007
                            CP-39-MD-0005250-2008

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 06, 2017

        Appellant, Jason Kokinda, appeals pro se from the order of October 31,

2016, which denied his pro se Petition to Waive Fees or Suspend Collections.

We affirm, albeit for reasons different from those expressed by the trial

court.1

        We take the underlying facts and procedural history in this matter

from this Court’s decision affirming the denial of Appellant’s petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, and our independent review of the certified record.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 “[W]e are not limited by the trial court’s rationale and that we may affirm
on any basis.” Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super.
2002), appeal denied, 828 A.2d 349 (Pa. 2003) (citations omitted).
J-S34039-17


             On November 12, 2009, [Appellant] entered a plea of
     [g]uilty but [m]entally [i]ll to four counts of unlawful contact
     with a minor and one count of criminal use of a communication
     facility, after he engaged in online sexual communications with
     an individual whom he believed was a [twelve]-year-[old] minor,
     but was actually an undercover agent with the Attorney
     General’s Office. Following a hearing on February 17, 2010, the
     trial court determined that [Appellant] was severely mentally
     disabled; specifically, a paranoid schizophrenic. Thereafter, the
     court sentenced [Appellant] to [not less than thirty-six nor more
     than eighty-four] months’ incarceration. [Appellant did not file a
     direct appeal].

            [Appellant] filed a pro se PCRA petition on February 22,
     2011. Following an oral and written colloquy, the PCRA court
     permitted [Appellant] to proceed pro se and appointed stand-by
     counsel to assist in the PCRA proceedings. Following a hearing
     on September 6, 2012, the PCRA [court] denied [Appellant’s]
     petition. . . .

(Commonwealth       v.   Kokinda,    No.   2687   EDA   2012,    unpublished

memorandum at **1-2 (Pa. Super. filed Dec. 13, 2013)).            This Court

affirmed the denial of Appellant’s PCRA petition on December 13, 2013.

(See id. at *3). Appellant subsequently filed an application to reinstate his

appeal and sought leave to appeal the denial of that application to the

Pennsylvania Supreme Court.

     On October 28, 2016, Appellant, who is no longer incarcerated and

lives out-of-state, filed a pro se Petition to Waive Fees or Suspend

Collections. In the motion, Appellant states that he was wrongly assessed

$626.51 in court fees. (See Petition to Waive Fees or Suspend Collections,

10/28/16, at 1).    He complains that he was “harassed” by a collection

agency and is unable either to pay the monies or meaningfully dispute the


                                    -2-
J-S34039-17


matter because of his poverty and out-of-state residence. (Id. at 2-5). On

October 31, 2016, the trial court denied the motion.      The instant, timely

appeal followed. On December 12, 2016, the trial court ordered Appellant to

file a concise statement of errors complained of on appeal.     See Pa.R.A.P.

1925(b). Appellant filed a timely Rule 1925(b) statement on December 28,

2016. See id. On January 13, 2017, the trial court issued an opinion. See

Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following issue for our review.

      1. Why is [the trial court] unable to construe . . . [Pennsylvania
         Rule of Criminal Procedure] 706 . . . pragmatically, pursuant
         to [Pennsylvania Rule of Criminal Procedure] 101; in a
         manner that comports with civil rights?

(Appellant’s Brief, at 4) (unnecessary underlining omitted).

      Appellant challenges the trial court’s finding that he is statutorily

required to pay fees and costs. We note that interpreting the meaning of a

statute raises a pure question of law, therefore our standard of review is de

novo and our scope of review is plenary. See Commonwealth v. Burwell,

58 A.3d 790, 793 (Pa. Super. 2012), appeal denied, 69 A.3d 242 (Pa. 2013).

      Initially, we observe that it appears that Appellant’s petition is based

on his erroneous belief that the decision of the trial court not to impose any

fines at sentencing meant that Appellant was not responsible to pay any fees

and costs.    (See Petition to Waive Fees or Suspend Collections, at 1;

Appellant’s Brief, at 6). The record clearly demonstrates that while the trial

court did not order the payment of fines, it did order the payment of fees

                                     -3-
J-S34039-17


and costs.     (See N.T. Sentencing, 2/17/10, at 112, 114, at 112; Lehigh

County Sentence Sheets, 2/17/10, at unnumbered pages 1-5).          Appellant

did not object to the sentence and, when questioned, stated that he

understood it. (See N.T. Sentencing, at 119). Appellant did not file a post-

sentence motion for reconsideration and did not file a direct appeal

challenging his sentence.         Thus, Appellant waived any challenge to the

judgment of sentence and the order directing payment of costs is a valid

aspect of his sentence.2 See Commonwealth v. McAfee, 849 A.2d 270,

275 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004).3

       Appellant next argues that the trial court erred by not affording him

relief under Pennsylvania Rule of Criminal Procedure 706. (See Appellant’s

Brief, at 11-12). Rule 706 provides:

       (A) A court shall not commit the defendant to prison for failure
       to pay a fine or costs unless it appears after hearing that the
       defendant is financially able to pay the fine or costs.
____________________________________________


2
  As the Commonwealth correctly states, (see Commonwealth’s Brief, at 6-
7), the trial court’s reliance, (see Trial Court Opinion, 1/13/17, at 3-4), on
42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2) is misplaced because these
statutes were not in effect at the time of Appellant’s sentencing. See An Act
Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania
Consolidated Statutes, No. 2010-96, P.L. 949, § 3 (October 27, 2010).
3
  We note that Appellant does not appear to challenge the legality of the
sentence. (See Petition to Waive Fees or Suspend Collections, 10/28/16, at
1-5). In any event, any such challenge would have needed to be raised in a
timely PCRA petition. See Commonwealth v. Guthrie, 749 A.2d 502, 503
(Pa. Super. 2000) (holding motion to correct illegal sentence must be
treated as PCRA petition where appellant did not file timely post-sentence
motions or direct appeal).



                                           -4-
J-S34039-17



     (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
     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 is 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.

     (D) In cases in which the court has ordered payment of a fine or
     costs in installments, the defendant may request a rehearing on
     the payment schedule when the defendant is in default of a
     payment or when the defendant advises the court that such
     default is imminent. At such hearing, the burden shall be on the
     defendant to prove that his or her financial condition has
     deteriorated to the extent that the defendant is without the
     means to meet the payment schedule. Thereupon the court may
     extend or accelerate the payment schedule or leave it unaltered,
     as the court finds to be just and practicable under the
     circumstances of record. When there has been default and the
     court finds the defendant is not indigent, the court may impose
     imprisonment as provided by law for nonpayment.

           Comment: See generally Commonwealth ex rel.
           Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158
           (1973).

           Under this rule, when a defendant fails to pay the
           fine and costs, the common pleas court judge may
           issue a bench warrant for the collection of the fine
           and costs. When a “failure to pay” bench warrant is
           issued, the bench warrant must be executed by a
           police officer following the procedures set forth in
           Rule 431(C)(1)(c) and (C)(2), or, if the defendant is
           unable to pay, the police officer must proceed as
           provided in Rule 150 (Bench Warrants).


                                   -5-
J-S34039-17


            Nothing in this rule is intended to abridge any rights
            the Commonwealth may have in a civil proceeding to
            collect a fine or costs.

Pa.R.Crim.P. 706.

      However, Appellant’s complaints are premature.           At most, in his

petition, Appellant indicates that Lehigh County is attempting to collect the

debt and that the Lehigh County Bureau of Collections scheduled some type

of hearing. (See Petition to Waive Fees or Suspend Collections, at 2-4). At

no point does Appellant state that the trial court issued a bench warrant or

that Lehigh County has even          instituted proceedings     to   garnish his

supplemental security income.     (See id.).    If, in fact, such an event does

occur, Appellant may request a hearing pursuant to Rule 706(D). Further,

despite Appellant’s repeated scurrilous attacks on the trial court in his

appellate brief, this Court has no doubt that the court will afford Appellant all

due process protections required under Rule 706.               (See generally

Appellant’s Brief, at 9-17).

      Thus, we find, for the reasons discussed above, that Appellant has

waived any attack on the imposition of fees and costs as part of his

sentence.   Further, his claim that the trial court violated his due process

rights and failed to comply with Pa.R.Crim.P. 706 is premature. Accordingly,

we affirm the denial of Appellant’s petition.

      Order affirmed.




                                      -6-
J-S34039-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




                          -7-
