J-S26041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANDRE VANCLIFF

                            Appellant                No. 1609 MDA 2014


             Appeal from the Judgment of Sentence July 21, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001831-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED MAY 12, 2015

        Appellant Andre Vancliff appeals from his judgment of sentence

entered in the Luzerne County Court of Common Pleas. We affirm.

        On July 21, 2014, Appellant entered a plea of nolo contendere to one

count of criminal conspiracy to commit corruption of minors.1            The

Commonwealth moved for, and Appellant agreed to, immediate sentencing.

The trial court sentenced Appellant to 42 to 84 months’ incarceration and a

$15,000.00 fine. N.T., 7/21/14, at 14-15.

        At sentencing, the following exchange occurred:

          [COMMONWEALTH]: In this case, the Commonwealth is
          going to ask for a substantial fine. Since [Appellant] is
          incarcerated as a lifetime inmate, obviously there’s no type
          of probation, parole, or any type of incarceration that’s
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1
    18 Pa.C.S § 903.
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       going to affect his current situation, so the statutory
       maximum fine in this case is $15,000. The Commonwealth
       has provided the defense counsel with a copy of
       [Appellant’s] inmate transaction history with regard to his
       finances.       This is his inmate       prison account,
       Commonwealth’s Exhibit A.

       ...

       Your Honor, the reason the Commonwealth is asking for
       this fine obviously, other than the fact that no type of
       sentence with probation, parole, or incarceration is going
       to affect the status of [Appellant] is because [Appellant]
       actually profited from this criminal conspiracy. It you take
       a look at the records it shows that between January 19th
       of 2012 and September 12th of 2012, the co-conspirator in
       this case provided him with over $16,000. At one point in
       September of 2012, [Appellant] had in excess of $19,000
       in his prisoner account. Currently he has in excess of
       $9,000 in his account.

       The Commonwealth also noticed throughout the records
       that he has an outside savings account at Vantage Trust
       FCU and Wayne Bank. He’s been depositing money from
       his prisoner account into an outside savings account. One
       of the things the [c]ourt can consider when imposing a fine
       is the defendant’s ability to pay the fine. Obviously[,]
       [Appellant] has a substantial amount of money in his
       actual prison account and possibly an outside savings
       account that he’s been transferring money into. So we’re
       going to ask the Court for the max fine.

       THE COURT: Defense.

       [DEFENSE COUNSEL]: Your Honor, [Appellant] obviously
       qualified for representation by the Public Defender’s Office.
       He is considered indigent.      In regards to the outside
       account, it’s my understanding that [Appellant] did
       attempt to make those deposits but they were returned to
       his prison account, which is reflected in the ledger that you
       have a copy of.

       THE COURT: Okay. Anything else?

       Sir, do you want to say anything before I impose
       sentence?

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        THE DEFENDANT: As far as the account is concerned, it
        seems like during the investigation they popped up – they
        put all the information, but as she indicated, Vantage
        Account is the same funds. It’s not like a different set of
        funds that is being thrown like from the prison account in
        the outside account. It’s all one funds. The Vantage
        account never accepted the funds; they returned it back to
        the account.

        THE COURT: So you’re – it’s your position that there’s no
        outside account.

        [THE COMMONWEALTH]: And, Judge, if that’s the case
        that there’s no outside account, there’s still $9,629.58
        currently in his prisoner account.

        THE COURT: Okay. Well, the [c]ourt is very familiar with
        this case having heard the co-defendant’s actual criminal
        trial. [Appellant] had pled before in this case so the
        [c]ourt is very familiar with the facts regarding this case.

        The [c]ourt feels the following sentence is appropriate.
        The [c]ourt is going to sentence [Appellant] to 42 to 84
        months in a state correctional facility. This sentence will
        be consecutive and not concurrent with the sentence he’s
        currently [serving]. He’s not to have any contact with any
        minors in this case, and he is to have no contact with the
        co-defendant in this case. The [c]ourt is also going to fine
        [Appellant] $15,000 for the statutory maximum fine to be
        imposed by the [c]ourt. The [c]ourt is going to order that
        his prison account – whatever is in his prison account be
        confiscated by the prison to satisfy this fine.

        ...

N.T., 7/21/14, at 10-15.




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       On August 15, 2014, Appellant’s counsel filed a timely notice of

appeal.2 Both Appellant and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

       Appellant raises the following issue on appeal:

          Whether the sentencing court erred by imposing, as part of
          [Appellant’s] sentence, a fine of $15,000.00 where there
          was insufficient evidence that [Appellant] is or will be able
          to pay such fine?

Appellant’s Brief at 1.

       Appellant’s claim challenges a discretionary aspect of his sentence.

Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa.Super.2013) (claim

raising a complete absence of evidence of ability to pay raises an illegal

sentence claim, but claim challenging fine where some evidence of ability to

pay exists in record raises a discretionary challenge).     “Challenges to the

discretionary aspects of sentencing do not entitle a petitioner to review as of
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2
 Appellant filed a pro se notice of appeal on September 11, 2014, which this
Court dismissed as duplicative on October 29, 2014.

Although the trial court sentenced Appellant on July 21, 2014, the trial court
did not enter the judgment of sentence on its docket. On October 7, 2014,
this Court issued an order directing Appellant to show cause as to why the
appeal should not be quashed as being taken from an order not entered
upon the trial court docket.       On October 20, 2014, Appellant filed a
response, including a time-stamped copy of the judgment order as evidence
the order was docketed. On October 21, 2014, this Court ordered the trial
court to enter an appealable order on its docket, but included incorrect text.
On October 24, 2014, we vacated the October 21, 2014 order and directed
the trial court to enter the July 21, 2014 order on its docket. The trial court
docket now reflects the order.




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right.”   Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011)

(citing Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000)).

Before this Court can address a discretionary challenge, we must engage in

a four-part analysis to determine:

          (1) whether the appeal is timely; (2) whether Appellant
          preserved his issue; (3) whether Appellant’s brief includes
          a concise statement of the reasons relied upon for
          allowance of appeal with respect to the discretionary
          aspects of sentence; and (4) whether the concise
          statement raises a substantial question that the sentence
          is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      At sentencing, Appellant preserved the issue by arguing against the

imposition of a fine.   See Commonwealth v. Tirado, 870 A.2d 362, 365

(Pa.Super.2005) (“Issues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.”).    Appellant filed a timely

notice of appeal, and included a statement of reasons pursuant to Rule

2119(f) in his brief.    We must, therefore, determine whether his issue

presents a substantial question for our review.

      “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

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where a defendant raises a plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d

251, 255 (Pa.Super.2003)).

       Whether sufficient evidence supported the imposition of a fine raises a

substantial question for our review and we will review the merits of

Appellant’s claim.     See Commonwealth v. Fusco, 594 A.2d 373, 374

(Pa.Super.1991).

       “Sentencing is a matter vested within the discretion of the trial court

and will not      be   disturbed absent       a manifest abuse         of   discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse

of   discretion   requires   the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”            Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)).

       A court may impose a fine where:

          (b) Fine as additional sentence.--The court may
          sentence the defendant to pay a fine in addition to another
          sentence, either involving total or partial confinement or
          probation, when:

          (1) the defendant has derived a pecuniary gain from the
          crime; or

          (2) the court is of the opinion that a fine is specially
          adapted to deterrence of the crime involved or to the
          correction of the defendant.

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        (c) Exception.--The 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.

        (d) Financial resources.--In determining the amount
        and method of payment of a fine, the court shall take into
        account the financial resources of the defendant and the
        nature of the burden that its payment will impose.

42 Pa.C.S. § 9726(b)-(d).    “Imposition of a fine is not precluded merely

because the defendant cannot pay the fine immediately or because he

cannot do so without difficulty.”   Commonwealth v. Thomas, 879 A.2d

246, 264 (Pa.Super.2005) (citing Commonwealth v. Church, 522 A.2d 30,

33 (Pa.1987)).   Criminal conspiracy to corrupt minors is a third-degree

felony, allowing for a statutory maximum fine of $15,000.00. 18 Pa.C.S. §§

905(a); 6301(a)(1)(ii); 1101(3).

     Appellant   contends   insufficient   evidence   supported     the    court’s

determination that Appellant could pay the $15,000.00 fine because, at the

time of sentencing, his prison inmate account had only $9,629.58 and,

although the account previously had in excess of $19,000.00, his co-

defendant deposited the majority of the funds. Appellant’s Brief at 5. He

claims there was no evidence that Appellant, his co-defendant, or any other

individual would deposit money into his account in the future. Id.

     The trial court noted the fine was “adapted to the correction of

[Appellant],” who would not be deterred by an additional period of

incarceration because he was already serving a life sentence.             Opinion,


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10/2/2014, at 2.       It further noted it considered his ability to pay and his

financial resources.      Id.    The trial court noted the prison inmate account

contained a five-year history of the financial transactions and in September

2012, it exceeded $19,000.00.           Id.    Six days prior to sentencing it held

$9,629.58.     Id.   The trial court noted deposits of several hundred dollars

were consistently made to the account over the five years.           Id.   The trial

court concluded Appellant’s prison “inmate account provides a sufficient

evidentiary basis for a finding that he presently has the ability to make a

substantial payment towards the fine as well as periodic payments in the

future. Because there was sufficient evidence of [Appellant’s] ability to pay

the $15,000.00 fine, his judgment of sentence should be affirmed.” Id. at

3.

       At the time of sentencing, the trial court had Appellant’s prison inmate

account and heard from the Commonwealth, Appellant’s counsel, and

Appellant. The court acted within its discretion in finding sufficient evidence

to support imposition of the $15,000.00 fine.3
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3
  The certified record does not contain a copy of the prison inmate account.
It is Appellant’s responsibility to ensure the certified record contains all
documents essential to his case. Commonwealth v. Walker, 878 A.2d
887, 889 (Pa.Super.2005) (citing Fiore v. Oakwood Plaza Shopping Ctr.,
585 A.2d 1012, 1019 (Pa.Super.1991)). Further, the parties do not dispute
the amounts contained in the account. Also, although Appellant contends
his co-defendant deposited the majority of the money into the account, he
does not dispute that other individuals deposited money into the account.
At sentencing, the Commonwealth noted that the co-defendant deposited
over $16,000.00 into the prison account between February and September
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




                       _______________________
(Footnote Continued)

of 2012. N.T., 7/21/2014, at 11. In September 2012, however, the account
had over $19,000.00. Further, the record contains evidence Appellant’s
stepmother made at least four $25.00 deposits into his prison inmate
account. Final Appeal Decision, Secretary’s Office of Inmate Grievances &
Appeals, dated 4/4/2013 (noting four money orders in the amount of $25.00
each were inadvertently not deposited into account and this was rectified on
January 19, 2013, when each was deposited into the account).



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