J-S68041-17




NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
CHRISTIAN LEE FORD,                       :
                                          :
                  Appellant               :     No. 620 MDA 2017

                Appeal from the PCRA Order March 10, 2017
            in the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001443-2016,
          CP-36-CR-0001496-2016, and CP-36-CR-0002530-2016

BEFORE:    LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED NOVEMBER 30, 2017

      Christian Lee Ford (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Upon review, we reverse the order in part and remand for

proceedings consistent with this memorandum.

      On June 23, 2016, Appellant entered into a negotiated plea agreement

for three informations, and was sentenced accordingly as follows.

  CP-36-CR-0001443-2016 (Case No. 1443):

     two to four years of incarceration and a fine of $100 at count one (35
      P.S. § 780-113(a)(30));
     two years of probation at count two (18 Pa.C.S. § 5104);
     one year of probation at count three (35 P.S. § 780-113(a)(32));

  CP-36-CR-0001496-2016 (Case No. 1496):


*Retired Senior Judge assigned to the Superior Court.
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       one to four years of incarceration and a fine of $1,500 at count one (75
        Pa.C.S. § 3802(d)(1)(ii));
       count two (75 Pa.C.S. § 3802(d)(1)(iii)) merged;
       count three (75 Pa.C.S. § 3802(d)(2)) merged;
       90 days of incarceration and a fine of $1,000 at count four (75 Pa.C.S.
        § 1543(b)(1));

    CP-36-CR-0002530-2016 (Case No. 2530):

       three years of probation and a fine of $100 at count one (35 P.S. § 780-
        113(a)(16));
       one year of probation at count two (35 P.S. § 780-113(a)(32)).

        All periods of incarceration and probation were ordered to be served

concurrently, and costs were imposed as to all counts.

        Appellant did not file post-sentence motions or a direct appeal.     On

September 22, 2016, Appellant filed pro se a document entitled “Petition for

Review,” which the PCRA court properly treated as a timely-filed PCRA

petition.   The PCRA court appointed counsel, who filed an amended PCRA

petition on Appellant’s behalf.

        On January 26, 2017, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907, indicating its intention to dismiss Appellant’s petition

without a hearing. Appellant did not file a response, and on March 10, 2017,

the PCRA court dismissed Appellant’s petition. Appellant timely filed a notice

of appeal.1



1 Appellant complied with the PCRA court’s order to file a concise statement
of errors complained of on appeal. The PCRA court did not provide an opinion
(footnote continued on next page)



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      Appellant raises two issues for our consideration.

      A. Whether the [PCRA] court … erred in refusing post-conviction
         relief where the sentencing court imposed a penalty of fines
         and costs without a hearing on Appellant’s ability to pay, or
         whether payment would interfere with Appellant’s ability to pay
         restitution?

      B. Whether the [PCRA] court … erred in denying post-conviction
         relief where trial counsel failed to object to, or take reasonable
         steps to correct, the imposition of an illegal sentence of fines
         on his client?

Appellant’s Brief at 4.

      “Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      With respect to his first issue, Appellant contends that the PCRA court

erred in rejecting his claim that the sentencing court imposed an illegal

sentence of fines and costs without conducting a pre-sentence hearing on his

ability to pay.2 Appellant’s Brief at 8-9.



(footnote continued)
pursuant to Pa.R.A.P. 1925(a), but instead relied upon its March 10, 2017
opinion, wherein the PCRA court addressed its reasons for denying Appellant’s
PCRA petition.

2 Notably, Appellant does not address his claim as to costs within the argument
section of his brief. Appellant’s Brief at 8-11 (addressing fines only). This
(footnote continued on next page)


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      Here, Appellant agreed to the imposition of fines and costs as part of his

negotiated plea agreements. See Negotiated Plea Agreements, 6/23/2016;

N.T. 6/23/2016, at 2-4, 7-8. Nevertheless, a PCRA petitioner may challenge

the legality of a negotiated sentence. Commonwealth v. Rivera, 154 A.3d

370, 381 (Pa. Super. 2017) (en banc); Commonwealth v. Gentry, 101 A.3d

813, 819 (Pa. Super. 2014) (“[A] defendant cannot agree to an illegal

sentence, so the fact that the illegality was a term of his plea bargain is of no

legal significance.”).

      The PCRA court addressed this claim as follows.

             While there is no requirement in Pennsylvania that a trial
      judge must consider, in the first instance, a criminal defendant’s
      ability to pay the costs of prosecution and attendant fees, such a


(footnote continued)
issue is waived for lack of development. Harkins v. Calumet Realty Co.,
614 A.2d 699, 703 (Pa. Super. 1992) (“Issues in the statement of questions
presented and not developed in argument are also deemed waived.”). Even if
this Court were to address this claim, we find that Appellant’s claim that the
imposition of costs without a pre-sentence hearing on his ability to pay
rendered his sentence illegal lacks any legal basis.

      Generally, a defendant is not entitled to a pre-sentencing hearing
      on his or her ability to pay costs. While 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.

Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (internal
citations and quotations omitted) (emphasis in original). If appellant at some
point in the future is unable to make payments, then the sentencing court will
be required to conduct a hearing on Appellant’s ability to pay before ordering
incarceration for failure to pay.


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      requirement exists with respect to general fines. … 42 Pa.C.S.[ ]
      § 9726(c).   This section does not, however, apply to the
      mandatory fine provisions applicable in this case.

PCRA Court Opinion, 3/10/2017, at 12.

      A sentencing court may impose a fine as an additional sanction in certain

circumstances. 42 Pa.C.S. § 9721(a); 42 Pa.C.S. § 9726(b). A sentencing

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). This Court has held that

      a claim that the trial court failed to consider the defendant’s ability
      to pay a fine can fall into several distinct categories. First, a
      defendant may claim that there was no record of the defendant’s
      ability to pay before the sentencing court. In the alternative, a
      defendant may claim that the sentencing court did not consider
      evidence of record. Finally, a defendant may claim that the
      sentencing court failed to permit the defendant to supplement the
      record.

             After reviewing these categories, we conclude that only the
      first type of claim qualifies as non-waivable.... Section 9726(c)
      requires that it be “of record” that the defendant can pay the fine.
      Therefore, an argument that there was no evidence of the
      defendant’s ability to pay constitutes a claim that the fine was
      imposed in direct contravention of a statute. Furthermore, a
      complete lack of evidence in the record would be apparent from
      the face of the record and would not require the application of
      reasoning or discretion on the part of the appellate court.
      Accordingly, we conclude [ ] that a claim raising the complete
      absence of evidence of the defendant's ability to pay is not subject
      to waiver for a failure to preserve the issue in the first instance.




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Commonwealth v. Boyd, 73 A.3d 1269, 1273–74 (Pa. Super. 2013) (en

banc). However, a pre-sentence hearing on the ability to pay is not required

prior to the imposition of mandatory fines. Commonwealth v. Gipple, 613

A.2d 600, 601 n. 1 (Pa. Super. 1992).

      After review of the plea/sentencing transcript we agree with Appellant

that no inquiry was made, and no record existed, as to Appellant’s ability to

pay the agreed-upon fines at the time of his sentencing hearing. As such,

Appellant’s claim falls under the first type set forth in Boyd, and his claim

challenges the legality of his sentence.

      At Case No. 1496, Appellant was ordered to pay a fine of $1,500 for a

violation of 75 Pa.C.S. § 3802(d)(1)(ii). The Motor Vehicle Code provides that

a defendant convicted under this subsection for a second offense shall “pay a

fine of not less than $1[,]500….” 75 Pa.C.S. § 3804(c)(2)(ii). Appellant was

ordered to pay the mandatory minimum fine, and thus Appellant was not

entitled to a pre-sentence hearing on his ability to pay this fine.

      Appellant was also ordered at this information to pay a fine of $1,000

for a violation of 75 Pa.C.S. § 1543(b)(1). A defendant convicted under this

subsection “shall be sentenced to pay a fine of $500….”               75 Pa.C.S.

§ 1543(b)(1). As noted above, a pre-sentence hearing on the ability to pay

is not required for mandatory fines. However, the sentencing court improperly

imposed the mandatory fine applicable to a violation of 75 Pa.C.S.




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§ 1543(b)(1.1)(i), not 75 Pa.C.S. § 1543(b)(1), the subsection under which

Appellant actually was convicted.3 Thus, because the fine imposed exceeded

the statutorily mandated fine, and was imposed without a hearing on

Appellant’s ability to pay, that portion of the sentence is illegal.

      At Case No. 2530, Appellant was ordered to pay a fine of $100 for a

violation of 35 P.S. § 780-113(a)(16).       A defendant “shall, on conviction

thereof, be sentenced to imprisonment not exceeding one year or to pay a

fine not exceeding five thousand dollars ($5,000), or both.” 35 P.S. § 780-

113(b) (emphasis added).        The imposition of a fine for possession of a

controlled substance is discretionary, and Appellant was entitled to a pre-

sentence hearing on his ability to pay. See Commonwealth v. Thomas,

879 A.2d 246, 264 (Pa. Super. 2005) (vacating sentence where trial court did

not make specific findings on defendant’s ability to pay the fine imposed).

      At Case No. 1443, Appellant was ordered to pay a fine of $100 for a

violation of 35 P.S. § 780-113(a)(30). A defendant “shall be sentenced to

imprisonment not exceeding fifteen years, or to pay a fine not exceeding two

hundred fifty thousand dollars ($250,000), or both or such larger amount as

is sufficient to exhaust the assets utilized in and the profits obtained from the

illegal activity.”   35 P.S. § 780-113(f) (emphasis added).            Again, the



3 75 Pa.C.S. § 1543(b)(1.1.)(i) provides that a defendant “shall be sentenced
to pay a fine of $1,000 and to undergo imprisonment for a period of not less
than 90 days.”


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imposition of this fine was discretionary, and thus Appellant was entitled to a

pre-sentence hearing on his ability to pay. Thomas, 879 A.2d at 264.

      With respect to his second issue, Appellant contends that trial counsel

was ineffective for failing to object to, or take reasonable steps to correct,

Appellant’s illegal sentence of fines. Counsel was ineffective for failing to raise

this claim, however, because we have granted relief as to the illegal portions

of Appellant’s sentences regarding fines, this claim is moot.             The only

remaining fine (count one of Case No. 1496) was a mandatory fine, and thus,

as detailed hereinabove, no pre-sentence hearing was required. Accordingly,

we find that counsel was not ineffective for failing to raise that meritless claim.

See Commonwealth v. Tilley, 80 A.2d 649 (Pa. 2001) (holding that counsel

will not be deemed ineffective for failing to raise a meritless claim).

      In light of the foregoing, we reverse the order of the PCRA court in part,

vacate the fines imposed at Case No. 2530 and Case No. 1443, and remand

for resentencing in accordance with 42 Pa.C.S. § 9726. We vacate Appellant’s

fine at count four of Case No. 1496 and remand for resentencing consistent

with 75 Pa.C.S. § 1543(b)(1). We affirm the PCRA order in all other respects.4

      Order denying PCRA relief reversed in part.           Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.



4 If the Commonwealth believes that it is no longer receiving the benefit of
the bargain it agreed to with Appellant, it may ask the PCRA court to vacate
the convictions prior to resentencing.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2017




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