J-S24036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID CRUZ-ORTIZ,                        :
                                          :
                     Appellant            :        No. 1559 MDA 2017

                 Appeal from the Order September 13, 2017
             in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0001104-2015

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 28, 2018

      David Cruz-Ortiz (“Cruz-Ortiz”) appeals from the Order denying his

“Application for Leave to Defer Fines and Costs.” Because we conclude that

the trial court lacked subject matter jurisdiction, we vacate the Order.

      On July 26, 2017, Cruz-Ortiz entered a negotiated guilty plea to

receiving stolen property. The trial court sentenced Cruz-Ortiz, pursuant to

the plea agreement, to a term of 1 to 2 years in prison. The trial court also

directed Cruz-Ortiz to pay a $100 fine, plus the costs of proceedings. Cruz-

Ortiz did not file a direct appeal.

      On September 11, 2017, Cruz-Ortiz filed the instant pro se “Application

for Leave to Defer Fines and Costs,” arguing that “due to a modification in his

current financial situation[, he] is now unable to afford the twenty percent

(20%) deductions that are being imposed upon his inmate account,” and

requesting the trial court to enter an order to “defer his remaining debt of the
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applicable fines and costs until his pending minimum date.”1 On September

13, 2017, the trial court denied Cruz-Ortiz’s Act 84 Motion.2 Cruz-Ortiz, pro

se, filed a timely Notice of Appeal. On October 18, 2017, the trial court issued

an Order directing Cruz-Ortiz to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal within 21 days.          Cruz-Ortiz did not file a

concise statement.3

       Initially, we must consider whether the trial court had jurisdiction over

Cruz-Ortiz’s Act 84 Motion. See Commonwealth v. Danysh, 833 A.2d 151,

152 (Pa. Super. 2003) (raising, sua sponte, the question of subject matter

____________________________________________


1 The statute authorizing such deductions, which is commonly referred to as
“Act 84,” provides, in relevant part, that “[t]he county correctional facility to
which the offender has been sentenced or the Department of Corrections 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 imposed under section 9721(c.1).” 42 Pa.C.S.A. § 9728(b)(5).
Because Cruz-Ortiz’s Application raises a claim pursuant to Act 84, we will
hereinafter refer to it as an Act 84 Motion.

2 Although Cruz-Ortiz asserts in his brief that the trial court determined that
it did not have subject matter jurisdiction, see Brief for Appellant at 8, we
note that, from the text of the Order itself, it is unclear whether the trial court
denied Cruz-Ortiz’s Act 84 Motion based on the merits, or based on a lack of
subject matter jurisdiction.

3 On December 19, 2017, the trial court issued a Memorandum Statement
finding that Cruz-Ortiz waived his claims by failing to file a court-ordered Rule
1925(b) concise statement.         Memorandum Statement, 12/19/17, at 1
(unnumbered). However, we additionally note that, although Cruz-Ortiz filed
a pro se Act 84 Motion and a pro se Notice of Appeal, he was represented by
counsel at his guilty plea hearing, and is represented by the same counsel in
the instant appeal. It is unclear from the record whether counsel ever
withdrew from representation. Thus, in light of our disposition, we will
overlook Cruz-Ortiz’s failure to file a concise statement.

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J-S24036-18



jurisdiction of an Act 84 claim ruled upon by the court of common pleas).

Cruz-Ortiz filed an Act 84 Motion to enjoin the Department of Corrections

(“DOC”) from deducting money from his prison account, which is effectively a

civil action against the DOC. See Danysh, 833 A.2d at 153 (explaining that

a motion seeking to enjoin Act 84 deductions is a civil action instituted against

the DOC, as part of the Commonwealth government). Therefore, Cruz-Ortiz’s

Act 84 Motion falls within the exclusive original jurisdiction of the

Commonwealth Court. See 42 Pa.C.S.A. § 761(a)(1) (providing that “[t]he

Commonwealth Court shall have original jurisdiction of all civil actions and

proceedings   [a]gainst   the   Commonwealth      government….”);     see   also

Danysh, 833 A.2d at 152-54; Commonwealth v. Jackson, 858 A.2d 627,

629-30 (Pa. Super. 2004) (en banc) (holding that, under the reasoning in

Danysh, the trial court lacked jurisdiction to consider defendant’s pro se Act

84 petition to stop the DOC from deducting 20% of his earnings from his

inmate account to pay for court-ordered costs and restitution). Because the

Commonwealth Court has exclusive original jurisdiction over Cruz-Ortiz’s

claim, the trial court lacked subject matter jurisdiction to consider the Act 84




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Motion, and its Order is void. See Danysh, 833 A.2d at 154.4

       Accordingly, we vacate the Order of the trial court without prejudice to

Cruz-Ortiz’s right to seek relief in the Commonwealth Court.

       Order vacated. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




____________________________________________


4 Cruz-Ortiz argues that the trial court had subject matter jurisdiction over his
Act 84 Motion based on 42 Pa.C.S.A. § 9730(b)(3). See Brief for Appellant at
7-8. Section 9730(b) of the Sentencing Code sets forth the procedures for
when a defendant defaults in his payment of a fine, court costs, or restitution.
See 42 Pa.C.S.A. § 9730(b). Subsection 9730(b)(1) allows the court to
“conduct a hearing to determine whether the defendant is financially able to
pay.” Id. § 9730(b)(1). If the court “determines that the defendant is without
the financial means to pay the fine or costs immediately or in a single
remittance,” the court may establish a payment plan, with consideration given
to “the defendant’s financial resources, the defendant’s ability to make
restitution and reparations and the nature of the burden the payment will
impose….” Id. § 9730(b)(3); see also id. (providing for a rehearing if the
defendant defaults on the payment plan, or if default is imminent). However,
the Commonwealth Court has instructed that “Section 9730 … applies only
when the defendant’s sentence prescribes financial obligations without
confinement, which is not the case here.” Dep’t of Corr. v. Tate, 133 A.3d
350, 356 (Pa. Cmwlth. 2016) (emphasis added). Thus, section 9730(b) is not
applicable to the instant case.


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