J-S29013-19

                                   2019 PA Super 289


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN M. GARY-RAVENELL                     :
                                               :
                       Appellant               :   No. 2551 EDA 2018

         Appeal from the Judgment of Sentence Entered August 16, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001260-2018


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

OPINION BY LAZARUS, J.:                            FILED SEPTEMBER 24, 2019

        Kevin M. Gary-Ravenell appeals from the judgment of sentence, entered

in the Court of Common Pleas of Montgomery County, after pleading guilty to

drug offenses. After careful review, we vacate and remand for resentencing.

        On August 18, 2018, Gary-Ravenell entered a negotiated guilty plea to

possession of a controlled substance1 and possession of drug paraphernalia.2

The court sentenced him to one year of probation, a fine of $50, and also

ordered him to pay costs in the amount of $1,329.50. Gary-Ravenell filed a

timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. He presents the following issue

for our consideration: “Did the sentencing court err in imposing a fine and


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1   35 P.S. § 780-113(a)(16).

2   35 P.S. § 780-113(a)(32).
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costs at sentencing without making a determination regarding Mr. Gary-

Ravenell’s ability to pay?” Appellant’s Brief, at vi.

       We first note that a claim that the court lacked authority to impose fines

and costs is a challenge to the legality of the sentence. Commonwealth v.

Garzone, 993 A.2d 306 (Pa. Super. 2010), aff’d, 34 A.3d 67 (Pa. 2012).

       Instantly, Gary-Ravenell claims that neither during his oral guilty plea

colloquy nor at any other time during his plea hearing did the court discuss

the issue of his ability to pay fines and costs. See N.T. Guilty Plea, 8/16/18,

at 2 (“In exchange for that plea, he would be placed on probation for a period

of one year, and pay a $50 fine plus the costs of prosecution.”); id. at 12

(“He’ll pay the costs on Count 1, and a $50 fine in monthly installments as

directed during the period of his supervision. Costs are waived on Court 3.”).

Despite this lack of inquiry, the court imposed $1,379.50 for costs of

prosecution and a $50 fine as an additional sentence.         See Pennsylvania

Commission on Sentencing - Guideline Sentence Form, 9/12/18 (noting $50

fine imposed as restorative sanction part of sentence); see also Plea Form,

8/16/18, at 2 (noting “Defendant is sentenced to pay the costs of prosecution,

and a fine of $50 . . . in monthly installments as directed, and as authorized

by law” on Count 1).3
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3  See 204 Pa. Code § 303.14(a) (relating to guideline sentence
recommendations – economic sanctions; fines generally). See also 35 P.S.
§ 780-113(b) (any person who violates provisions of clause (15) through (20)
of subsection (a) “shall . . . be sentenced to imprisonment not exceeding one
year or to pay a fine not exceeding five thousand dollars ($5,000), or
both[.]”).

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      Section 9721(a) of our Commonwealth’s Sentencing Code sets forth a

trial court’s sentencing alternatives; a fine is one of those alternatives. See

42 Pa.C.S. § 9721(a)(5). Fines may either be imposed as a defendant’s sole

sentence or as an additional sentence when the defendant has derived a

pecuniary gain from the crime or the court opines that a fine is “specially

adapted to deterrence of the crime involved or to the correction of the

defendant.” 42 Pa.C.S. §§ 9726(a), (b)(1)-(2). Pursuant to section 9726(c),

a 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) (emphasis added).

      Unlike fines, which are part of a defendant’s actual sentence, a

defendant who has been convicted of a crime may also be liable for the costs

of prosecution, which are authorized by statute. See 16 P.S. § 7708; see

also 16 P.S. § 1403.   It is well-established that “[a] direction to pay costs in

a criminal proceeding is not part of the sentence, but is an incident of the

judgment. Costs do not form a part of the penalty imposed by the statutes

providing for the punishment of the criminal offenses[.]” Commonwealth v.

Soudani, 165 A.2d 709, 711 (Pa. Super. 1960); Commonwealth v.

Cauffiel, 97 Pa. Super. 202, 205 (Pa. Super. 1930) (liability for costs of

prosecution is merely “an incident of the judgment”). The distinction between

fines and costs is critical in evaluating the issue presented in the instant case




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– whether a defendant is entitled to an “ability to pay” determination prior to

sentencing.

      Section 9721 of the Sentencing Code sets forth mandatory costs that

may be associated with a sentence. Section 9721(c.1) states:

      Notwithstanding the provisions of section 9728 (relating to
      collection of restitution, reparation, fees, costs, fines and
      penalties) or any provision of law to the contrary, in addition to
      the alternatives set forth in subsection (a), the court shall order
      the defendant to pay costs. In the event the court fails to issue
      an order for costs pursuant to section 9728, costs shall be imposed
      upon the defendant under this section. No court order shall be
      necessary for the defendant to incur liability for costs under this
      section. The provisions of this subsection do not alter the court’s
      discretion under Pa.R.Crim.P. [] 706([C]) (relating to fines or
      costs).

42 Pa.C.S. § 9721(c.1) (emphasis added). See also 42 Pa.C.S. § 9728(b.2)

(setting forth mandatory payment of costs by defendant in event court fails

to issue order under section 9728(a) imposing such costs, “unless the court

determines otherwise pursuant to Pa.R.Crim.P. 706([C]) (relating to fines and

costs).”).

      Under Pa.R.Crim.P. 706(A), a court may not imprison a defendant for

failing to pay a fine or cost “unless it appears after a hearing that the

defendant is financially able to pay the fine or costs.” Pa.R.Crim.P. 706(A)

(emphasis added). Subsection (B) of Rule 706 sets forth the process that a

court must employ to determine the amount and method of payment for a

fine or costs once the court determines, following a Rule 706(A) hearing, that

the defendant “is without the financial means to pay[.]” Pa.R.C.P. 706(B).



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Rule 706(C) requires a court “consider the burden upon the defendant by

reason of the defendant’s financial means” when determining the amount and

method of payment under subsection (B). Pa.R.Crim.P. 706(C). Thus, Rule

706, which is referenced in both sections 9721 and 9728 of the Sentencing

Code, necessarily applies to defendants who have first defaulted in paying a

fine or costs or are in imminent danger of default. See Pa.R.Crim.P. 101(C)

(“To the extent practicable, these rules [of criminal procedure] shall be

construed in consonance with the rules of statutory construction.”); see also

1 Pa.C.S. § 1921(a) (“[E]very [rule] shall be construed, if possible to give

effect to all its provisions.”).   Accordingly, the hearing referenced in Rule

706(A) is not a pre-sentence proceeding that takes place before costs are

imposed; Rule 706 and its safeguards are only triggered once a defendant

fails to pay.

      Therefore, costs are not subject to a pre-sentence ability-to-pay

determination, unlike fines, which are part of a defendant’s actual sentence.

See Commonwealth v. Hernandez, 917 A.2d 332, 336 (Pa. 2007) (Rule

706 “is an adequate procedural tool that supplants 16 [P.S.] § 1403 and

satisfies . . . constitutional requirements . . . by ensuring that an indigent

[defendant] will be afforded an opportunity to prove his financial inability to

pay the costs of prosecution before being sentenced to prison [for failure to

pay costs].”) (emphasis added); see also Commonwealth v. Childs, 63

A.3d 323 (Pa. Super. 2013) (same). Rather, costs are a reimbursement to

the government for the expenses associated with a defendant’s criminal

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prosecution. Commonwealth v. Wall, 867 A.2d 578, 582 (Pa. Super. 2005)

(noting   that    where   “[c]osts   and   restitution    are     akin   to   collateral

consequences[,] fines [conversely] are considered direct consequences and,

therefore, punishment.”) (citations omitted).

      In Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013) (en

banc), our full court discussed a sentencing court’s duty to inquire into a

defendant’s ability to pay a fine under section 9726, pointing out “the explicit

language of the mandate contained in section 9726 [that] ‘[t]he court shall

not sentence a defendant to pay a fine unless it appears of record that . . .’

the defendant has the financial means to pay the fine and that the fine will

not interfere with payment of restitution to a victim.” Id. at 1273, citing 42

Pa.C.S.A. § 9726(c)(1) (emphasis added).          In Boyd, our Court ultimately

concluded that because the sentencing court had the benefit of the

defendant’s      presentence   investigation   (PSI)     report    which      contained

“significant information regarding [the defendant’s] educational history,

employment history, and existing assets, . . [it had] an evidentiary basis upon

which to impose a fine.” Boyd, 73 A.3d at 1274. Thus, the fine was not an

illegal sentence.

      Accordingly, pursuant to Boyd, as well as the clear language of section

9726(c)(1), the sentencing court was only permitted to impose a fine as an

additional sentence for Gary-Ravenell if “it appear[ed] of record that [he was]

able to pay the fine.” 42 Pa.C.S. § 9726(c)(1). Unlike Boyd, the sentencing

form in the instant case indicates that the court did not complete a PSI prior

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to imposing Gary-Ravenell’s fine.4 See Sentencing Guideline Form, 9/12/18.

Moreover, the notes of testimony from Gary-Ravenell’s guilty plea hearing

contain no discussion or basis from which we can conclude that the sentencing

judge was informed as to his ability to pay under section 9726(c). Because

the court did not comply with this statutory mandate, this portion of Gary-

Ravenell’s sentence is illegal, must be vacated and the court should

resentence the defendant on remand.              If the court should again decide to

impose a fine as an additional sentence on Count 1, the court would be

required to place on the record the evidentiary basis supporting its conclusion

regarding Gary-Ravenell’s ability to pay the specified fine.

       With regard to the costs of prosecution that the court imposed, the trial

court was not required to conduct a pre-sentence inquiry into Gary-Ravenell’s

ability to pay. See Hernandez, 917 A.2d at 336-37 (generally defendant not

entitled to pre-sentencing hearing on ability to pay costs).5 Thus, the court

properly imposed the instant costs of prosecution.
____________________________________________


4 In fact, the defendant’s written guilty plea shows that while he was informed
that he had the right to a PSI, he was also told that a ‘PSI is usually waived if
your plea agreement is accepted because the information is not needed for
sentencing by the [j]udge.” Guilty Plea Form, 8/17/18, at ¶¶ 40-41.

5 Rather, under Rule 706, the court is only obligated to conduct a hearing
when Gary-Ravenell is in default. Instantly, it is undisputed that Gary-
Ravenell is indigent as he qualified for the assistance of a public defender
throughout his case and on appeal. Thus, there is a presumption that he is
unable to pay the costs of prosecution. However, there is nothing in the record
indicating that he is in default of paying the costs of prosecution. If Gary-
Ravenell does ultimately default on paying the costs, the trial court shall



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       Judgment of sentence vacated.             Case remanded for proceedings

consistent with this decision.      Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins this Opinion.

      President Judge Emeritus Bender notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/19




____________________________________________


conduct a hearing regarding his ability to pay costs in accordance with the
procedures outlined in Rule 706. If, after such a hearing, the court determines
that Gary-Ravenell is “without the financial means to pay the . . . costs,” then
the court may determine a “just and practicable” payment plan and time
period over which the costs shall be paid. Id. at (B). In determining the
amount and method of the payment of the costs, the court “shall . . . consider
the burden upon [Gary-Ravenell] by reason of [his] financial means.” Id. at
(C).



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