                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                      :
                                                  :
                        v.                        :
                                                  :
Christopher Michael Stone,                        :    No. 1324 C.D. 2018
                        Appellant                 :    Submitted: December 28, 2018


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                            FILED: February 8, 2019

                Christopher Michael Stone (Stone)1 appeals pro se from the
Westmoreland County (County) Common Pleas Court’s (trial court) June 22, 2018
order dismissing his Petition to Vacate/Reconsider Fines, Costs & Restitution Nunc
Pro Tunc (Petition). The issue before the Court is whether the trial court properly
dismissed Stone’s Petition. After review, we affirm.
                On July 29, 2010, Stone entered a guilty plea to numerous counts of
robbery and theft charges and received a 3 to 7-year sentence plus costs, and a 4 to
10-year sentence plus costs and restitution, to run concurrently. On June 4, 2018,
Stone filed the Petition. On June 22, 2018, the trial court dismissed the Petition
noting that it did not have jurisdiction to affect the removal of funds from Stone’s
prison account.
                Thereafter, Stone filed an appeal with the Pennsylvania Superior Court
(Superior Court). On July 27, 2018, because the matter involved the withdrawal of
funds from Stone’s inmate account, the Superior Court issued a Rule to Show Cause

      1
          Stone is currently an inmate at the State Correctional Institution at Fayette.
why this matter should not be transferred to this Court. Stone did not file a response
thereto. Thus, by September 27, 2018 order, the Superior Court transferred the
matter to this Court.2


                                  Trial Court’s Jurisdiction
               Initially, Section 9728(b)(5) of the Sentencing Code, commonly known
as Act 84, provides in pertinent part: “The . . . Department of Corrections
[(Department)] shall be authorized to make monetary deductions from inmate
personal accounts for the purpose of collecting restitution or any other court-ordered
obligation or costs . . . .” 42 Pa.C.S. § 9728(b)(5). In the Petition, Stone specifically
concluded: “[Stone] respectfully requests that this Honorable Court enter an Order
that would STOP the 30% deduction and the [trial court] to reimburse Stone in the
amount of $158.10 for the deductions that were illegally taken by the [Department]
according to Pennsylvania Laws and Statutes.” Petition at 4. Consequently, in effect,
Stone filed an Act 84 motion to enjoin the Department from deducting 30% of his
earnings from his inmate account, which constitutes a civil action against the
Department over which this Court would have original jurisdiction pursuant to
Section 741(a) of the Judicial Code, 42 Pa.C.S. § 741(a).3

               [I]f an inmate seeks to end Act 84 deductions by removing
               financial obligations from his original sentence, the request
               to modify sentence should be heard by the [trial] court . . . .
               See Commonwealth v. Lyons, 830 A.2d 663 (Pa. Cmwlth.
               2003). . . . [W]here the method by which an inmate seeks
               to end Act 84 deductions involves the validity or
               modification of the underlying sentence, original
               jurisdiction lies with the [trial] court.

       2
          “Our review of the trial court’s order is limited to determining whether [] constitutional
rights have been violated and whether the trial court committed an error of law or abused its
discretion.” Commonwealth v. Lyons, 830 A.2d 663, 664 n.5 (Pa. Cmwlth. 2003).
        3
          Notably, on June 27, 2016, Stone filed an Act 84 motion which the trial court dismissed for
lack of jurisdiction on July 14, 2016.
                                                 2
Commonwealth v. Parella, 834 A.2d 1253, 1256 (Pa. Cmwlth. 2003).
              Here, Stone’s Petition and brief, although inartfully drafted, reveal that
he is, in fact, contesting the legality of the imposition of costs and restitution as part
of his sentence. See Petition ¶9 (“[T]he [trial court] had and still has no legal basis
for [] requesting the [] deductions from [Stone’s] Inmate Account.”); Stone Br. at 5
(“[T]hese costs and fines . . . were illegally imposed by the [trial court] . . . .”).
Further, in both the Petition and his brief, Stone asserts that he was not given a
hearing regarding his ability to pay at the time of sentencing.
              Notwithstanding, the trial court’s order stated, in relevant part:

              This Court notes that it does not have the jurisdiction to
              affect the removal of funds from [Stone’s] prison account.
              [Section 9728 of the Sentencing Code,] 42 Pa.C.S. § 9728[,]
              authorizes the [Department] to make monetary deductions
              from inmate personal accounts for the purpose of collecting
              restitution or any other court-ordered obligation or costs
              imposed.
              [Section 1106 of the Crimes Code,] 18 Pa.C.S. § 1106[,]
              also states that courts shall order full restitution regardless
              of the current financial resources of the defendant, so as to
              provide the victim with the fullest compensation for the
              loss.

Trial Ct. Order at 1. Accordingly, the trial court properly addressed Stone’s issues.


                                     Stone’s Appeal
              Stone argues that the trial court illegally imposed fines, costs and
restitution because he was homeless and jobless at the time of sentencing.4 First, the
trial court did not impose any fines on Stone, only restitution and costs. Second,
pursuant to Section 1106(c) of the Sentencing Code: “The [trial] court shall order full


       4
          By November 27, 2018 letter, the County District Attorney’s Office informed this Court
that it would not be filing a brief in this matter.
                                               3
restitution . . . [r]egardless of the current financial resources of the defendant[.]”
18 Pa.C.S. § 1106(c) (emphasis added). Finally, relative to costs:

             Generally, a defendant is not entitled to a pre-sentencing
             hearing on his or her ability to pay costs. Commonwealth v.
             Hernandez, 917 A.2d 332, 336-37 (Pa. Super. 2007). While
             [Pennsylvania Rule of Criminal Procedure (Rule)] 706
             ‘permits a defendant to demonstrate financial inability
             either after a default hearing or when costs are initially
             ordered to be paid in installments,’ the Rule only requires
             such a hearing prior to any order directing incarceration for
             failure to pay the ordered costs. Id. at 337 (emphasis
             added). In Hernandez, [the Superior Court] [was] required
             to determine whether Rule 706 was constitutional in light of
             Fuller v. Oregon, 417 U.S. 40 . . . (1974). [The Superior
             Court] concluded that a hearing on ability to pay is not
             required at the time that costs are imposed:
                 The Supreme Court . . . did not state that Fuller
                 requires a trial court to assess the defendant’s
                 financial ability to make payment at the time of
                 sentencing. In interpreting Fuller, numerous federal
                 and state jurisdictions have held that it is not
                 constitutionally necessary to have a determination
                 of the defendant’s ability to pay prior to or at the
                 judgment of sentence. . . . [The Superior Court]
                 conclude[s] that Fuller compels a trial court only to
                 make a determination of an indigent defendant’s
                 ability to render payment before he/she is
                 committed.
             Hernandez, 917 A.2d at 337.

Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013). Accordingly, the trial
court properly ordered Stone to pay costs and restitution.
             Moreover,

             [a]n offender may request modification of a sentence in one
             of several ways: 1) a motion for modification of the
             sentence under [Rule] 720 which must be made within 10
             days of the imposition of sentence; 2) a direct appeal of the
             sentence under . . . Rules 901-911, notice of which must be
             given within 30 days of the imposition of sentence; 3) a
                                           4
              petition for post[-]conviction relief under the Post
              Conviction Relief Act [(PCRA)], 42 Pa.C.S. §§ 9541[,]
              9546, which must be filed within one year of the date the
              judgment of sentence becomes final; or 4) a petition to
              amend an order of mandatory restitution made during a
              sentencing hearing, which may be filed at any time. 18
              Pa.C.S. § 1106(c)(2)(iii)[.]

Lyons, 830 A.2d at 665. Stone filed his Petition on June 4, 2018, almost 8 years after
he was sentenced, which is well past the permissible period for seeking cost
modification.     Stone “does not plead any special circumstances to support a
modification of those portions of his sentences at such a late date. Therefore, no error
is evident in the trial court’s refusal to modify costs . . . .” Id.
              To the extent that Stone is claiming that the imposition of costs and
restitution renders his sentence illegal, such a claim is cognizable exclusively under
the PCRA.5 Again, 8 years is well beyond the allotted time for filing the same.6

              As to restitution, its imposition initially lies within the
              discretion of the sentencing court. . . . [Stone] fails to offer
              any reasons . . . to support a claim of abuse of discretion in
              setting or continuing the restitution sentence. In the
              absence of any relevant argument on the issue, we decline
              to find an abuse of discretion in the trial court’s refusal to
              modify the restitution portion[] of the sentence[].

Id. at 665-66.
              For all of the above reasons, the trial court’s order is affirmed.



                                           ___________________________
                                           ANNE E. COVEY, Judge



       5
          See Section 9542 of the PCRA (“[The PCRA] provides for an action by which . . . persons
serving illegal sentences may obtain collateral relief.”). 42 Pa.C.S. § 9542.
       6
          Stone filed a PCRA petition on December 3, 2014, in which he did not contest the
imposition of costs and restitution, and which the trial court dismissed on May 28, 2015.
                                               5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania          :
                                      :
                  v.                  :
                                      :
Christopher Michael Stone,            :   No. 1324 C.D. 2018
                        Appellant     :


                                    ORDER

            AND NOW, this 8th day of February, 2019, the Westmoreland County
Common Pleas Court’s June 22, 2018 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
