J-A01018-20

                                   2020 PA Super 98

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAURICE HUDSON                             :
                                               :
                       Appellant               :   No. 611 EDA 2019

        Appeal from the Judgment of Sentence Entered February 12, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009201-2009


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

OPINION BY MURRAY, J.:                                     Filed : April 16, 2020

        Maurice Hudson (Appellant) appeals from the judgment of sentence

imposed following the revocation of his probation. Appellant claims that the

trial court erred in determining that he violated a specific condition of his

probation because court costs cannot be imposed as part of a sentence.

Additionally, Appellant asserts that the trial court erred when it imposed a

sentence of total confinement for his failure to pay court costs without

conducting a hearing concerning his ability to pay, and imposed an excessive

sentence. Because we are constrained to conclude that the trial court imposed

an illegal sentence, we vacate the judgment of sentence.

        On April 21, 2010, Appellant entered a negotiated guilty plea to two

counts of robbery and one count each of criminal conspiracy, carrying a

firearm without a license, and possession of an instrument of crime.1 Pursuant
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 3701(a)(1), 903(a)(1), 6106(a)(1), and 907(a).
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to the agreement, the trial court sentenced Appellant to two to four years of

incarceration, plus three years of probation.     Appellant was work release

eligible and received credit for time served. In Appellant’s sentencing order,

the trial court imposed the following conditions of probation: obtain a GED;

attend job training; seek and maintain employment; and pay court costs.

Sentencing Order, 4/21/10.

      On October 22, 2012, Appellant was released from prison and began

serving probation.     Subsequently, Appellant attended four violation of

probation (VOP) hearings before the trial court. On June 25, 2015, the trial

court found him in technical violation of his probation for failing to obtain

employment and pay court costs. The trial court sentenced Appellant to 11½

to 23 months of incarceration, plus three years of probation. On January 12,

2016, the trial court granted Appellant’s petition for parole, but ordered

Appellant to comply with the conditions of probation.

      On July 18, 2017, Appellant appeared for a second VOP hearing after a

bench warrant was issued following Appellant’s failure to appear at a status

hearing. The trial court found Appellant in technical violation of his probation,

but did not impose any further sentence. On May 7, 2018, Appellant appeared

for a third VOP hearing. The trial court again found Appellant in technical

violation of his probation for not maintaining employment and failing to pay

court costs. The trial court sentenced Appellant to one year of probation.

      On February 12, 2019, Appellant appeared for a fourth VOP hearing,

which is the subject of the instant appeal. The trial court found Appellant in

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technical violation for failing to pay court costs. See N.T., 2/12/19, at 6, 17-

19, 21-24; see also Gagnon II Summary, 2/7/19. In order to “vindicate the

authority of the court,” the trial court sentenced Appellant to 1½ to 3 years of

incarceration. N.T., 2/12/19, at 18. The trial court also sentenced Appellant

to pay fines and costs, undergo random drug screens, and seek and maintain

employment. Id.; see also Order, 2/12/19.

      On February 14, 2019, Appellant filed a motion for reconsideration of

his VOP sentence. While the motion was pending, Appellant filed a timely

notice of appeal with this Court. On April 3, 2019, the trial court issued an

order directing Appellant to file a concise statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely submitted

on April 15, 2019.

      Appellant presents three issues for our review:

      1. Did not the lower court err and impose an illegal sentence,
         violating Rule 706 of the Pennsylvania Rules of Criminal
         Procedure and Appellant’s due process rights, by committing
         Appellant to prison for failure to pay court costs without making
         adequate inquiry into Appellant’s ability to pay?

      2. Did not the lower court impose an illegal sentence when it
         revoked Appellant’s probation and imposed 1½ to 3 years
         incarceration for his failure to pay court costs, where the
         condition that a probationer pay court costs is not a valid
         condition of probation under 42 Pa.C.S.A. § 9754?

      3. Did not the lower court abuse its discretion in imposing a
         sentence of 1½ to 3 years confinement because Appellant
         failed to pay court costs and obtain “above the table”
         employment, where the sentence imposed was inconsistent
         with the Sentencing Code and fundamental norms underlying
         the sentencing process, contrary to Appellant’s rehabilitative

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         needs, and not necessary to vindicate the authority of the
         court?

Appellant’s Brief at 3 (trial court answers omitted).     We need only discuss

Appellant’s second issue, as it is dispositive of this appeal.

      In an appeal from a sentence imposed after a trial court’s revocation of

probation, this Court “can review the validity of the revocation proceedings,

the legality of the sentence imposed following revocation, and any challenge

to the discretionary aspects of the sentence imposed.” Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted).

      When imposing a sentence of total confinement after a probation

revocation, the sentencing court is to consider the factors set forth in 42

Pa.C.S.A. § 9771. Notably, Section 9771 allows for termination of supervision

or modification of the conditions of probation at any time. Id. at § 9771(a).

Revocation of probation, however, is permitted only “upon proof of the

violation of specific conditions of the probation.” Id. at § 9771(b). If, after

determining that the defendant has violated a specific condition of probation,

the court revokes a defendant’s probation, it may only resentence the

defendant to a term of incarceration if: 1) the defendant was convicted of a

new crime; 2) the defendant’s conduct makes it likely that he or she will

commit a new crime if not incarcerated; or 3) incarceration “is essential to

vindicate the authority of the court.” Id. at § 9771(c).

      Appellant contends that the failure to pay court costs, the basis upon

which his probation was revoked, was an illegal condition of sentence under

Section 9754 of the Judicial Code. See id.; see also 42 Pa.C.S.A. § 9754.

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Likewise, Appellant asserts that Section 9771, which governs revocation of

probation,   “unambiguously     provides    that   revocation   of   probation   is

permissible only ‘upon proof of the violation of specified conditions of

probation.’” Appellant’s Brief at 24 (quoting Commonwealth v. Foster, 214

A.3d 1240, 1251 (Pa. 2019)) (emphasis added).            Accordingly, Appellant

submits that because court costs cannot be imposed as a condition of

probation, and thus, it cannot be said that he violated any specific condition

of his probation, the trial court illegally revoked his probation. Id.; see also

Foster, 214 A.2d at 1251.

      We begin by noting that objections to an illegal sentence “cannot be

waived and may be reviewed sua sponte by this Court.” Commonwealth v.

Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). The scope and standard of

review applied to determine the legality of a sentence are well settled.

      If no statutory authorization exists for a particular sentence, that
      sentence is illegal and subject to correction. An illegal sentence
      must be vacated. In evaluating a trial court’s application of a
      statute, our standard of review is plenary and is limited to
      determining whether the trial court committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation

omitted).

      When interpreting a sentencing statute, we are mindful that:

      ‘[t]he object of all interpretation and construction of statutes is to
      ascertain and effectuate the intention of the General Assembly.
      Every statute shall be construed, if possible, to give effect to all
      its provisions.’ 1 Pa.C.S. § 1921(a). The plain language of the
      statute is generally the best indicator of legislative intent, and the
      words of a statute ‘shall be construed according to rules of


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      grammar and according to their common and approved usage. . .
      .’ 1 Pa.C.S. § 1903(a). We generally will look beyond the plain
      language of the statute only when words are unclear or
      ambiguous, or the plain meaning would lead to ‘a result that is
      absurd, impossible of execution or unreasonable.’ 1 Pa.C.S. §
      1922(1); see also Mercury Trucking, Inc. v. Pa. Pub. Util.
      Comm'n, 55 A.3d 1056, 1058 (Pa. 2012).

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013). Since Section 9754

is a penal statute, we must strictly construe this provision and interpret any

ambiguity in the light most favorable to the criminal defendant. Id. at 1212

(“as a penal statute, Section 9754 must be interpreted in the light most

favorable to [the defendant]”).

      The Commonwealth acknowledges that Appellant has seemingly

received an illegal sentence of incarceration. Commonwealth’s Brief at 12. In

particular, the Commonwealth avers that our case law “suggest[s] that costs

cannot be imposed as a condition of probation, and, consequently, that

probation cannot be revoked for nonpayment of costs.”              Id.    The

Commonwealth further recognizes the legal distinction between fines and

costs:   “fines are punishment because they are direct consequences of a

criminal conviction; costs are not because they are ‘akin to collateral

consequences.’    Accordingly, ‘[c]osts are not part of [a] sentence.’”

Commonwealth’s Brief at 11-12 (citations omitted).

      In its 1925(a) opinion, the trial court contends it was authorized to

revoke Appellant’s probation and sentence him to a term of incarceration

pursuant to Section 9771(c), “as such a sentence was essential to vindicate




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the authority of the court.” Trial Court Opinion, 6/27/19, at 10. The trial

court stated:

      This Court had given [Appellant] numerous chances to get his life
      together while on probation/parole.      Instead, he chose to
      squander these opportunities and simply continued doing what he
      wanted to do. This Court explained to [Appellant] at the violation
      hearing:

             All this time that you’ve been back and forth before
             this Court and every single time you got a break.
             Even the first time you came in front of this Court you
             didn’t go to state prison. . . . You go[t] the biggest
             break when you first got sentenced. You got two to
             four to be served in the County and everything was
             running concurrent. That was a big break. I don’t
             know if anybody ever broke it down to you that way.
             That was a big break because you never had to go to
             State prison and since that time I’ve been giving you
             break after break after break and every single time
             you came in here with nothing but excuses about why
             you didn’t do what you’re supposed to do.

Id. at 10-11 (citations omitted).

      The primary statute at issue in this appeal is Section 9754 of the Judicial

Code, which governs orders of probation. Specifically, Section 9754 provides

that “[t]he court shall attach such of the reasonable conditions authorized by

subsection (c) of this section as it deems necessary to insure or assist the

defendant in leading a law-abiding life.” 42 Pa.C.S.A. § 9754(b). Subsection

(c), in turn, enumerates 14 discrete conditions:

      (1)    To meet his family responsibilities.

      (2)    To devote himself to a specific occupation or employment.

     (2.1)   To participate in a public or nonprofit community service
             program unless the defendant was convicted of murder,

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           rape, aggravated assault, arson, theft         by   extortion,
           terroristic threats, robbery or kidnapping.

     (3)   To undergo available medical or psychiatric treatment and
           to enter and remain in a specified institution, when required
           for that purpose.

     (4)   To pursue a prescribed secular course of study or vocational
           training.

     (5)   To attend or reside in a facility established for the
           instruction, recreation, or residence of persons on
           probation.

     (6)   To refrain from frequenting unlawful or disreputable places
           or consorting with disreputable persons.

     (7)   To have in his possession no firearm or other dangerous
           weapon unless granted written permission.

     (8)   To make restitution of the fruits of his crime or to
           make reparations, in an amount he can afford to pay,
           for the loss or damage caused thereby.

     (9)   To remain within the jurisdiction of the court and to notify
           the court or the probation office of any change in his address
           or his employment.

     (10) To report as directed to the court or the probation officer
          and to permit the probation officer to visit his home.

     (11) To pay such fine as has been imposed.

     (12) To participate in drug or alcohol treatment programs.

     (13) To satisfy any other conditions reasonably related to
          the rehabilitation of the defendant and not unduly
          restrictive of his liberty or incompatible with his
          freedom of conscience.

     (14) To remain within the premises of his residence during the
          hours designated by the court.

42 Pa.C.S.A. § 9754(c)(emphasis added).


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      Section 9754 empowers sentencing courts to impose reasonable

conditions of probation, which may be monetary obligations, to assist the

defendant in leading a law-abiding life, so long as the conditions do not result

in a violation of the defendant’s essential constitutional liberty and freedom of

conscience. Hall, 80 A.3d at 1212. As described in subsections (c)(8) and

(c)(11), monetary conditions of probation may be imposed for the purpose of

“restitution” or “fines.” Notably, however, Section 9754 does not expressly

include a provision permitting the type of monetary condition imposed here –

court cost. We therefore consider the language of Section 9754 in light of the

directive that, as a penal statute, Section 9754 must be interpreted in the

light most favorable to Appellant. Id.

      In Commonwealth v. Wall, this Court reviewed the different monetary

measures a court may impose upon a defendant at sentencing, i.e., costs,

fines, or restitution. We explained:

            Often following a criminal conviction, the trial court
            places a monetary imposition on the defendant. The
            imposition of costs and restitution are not considered
            punishment. Both costs and restitution are designed
            to have the defendant make the government and the
            victim whole. Restitution compensates the victim for
            his loss and rehabilitates the defendant by impressing
            upon him that his criminal conduct caused the victim’s
            loss and he is responsible to repair that loss. See
            Commonwealth v. Runion, [ ] 662 A.2d 617, 618
            ([Pa.] 1995). Costs are a reimbursement to the
            government for the expenses associated with the
            criminal prosecution. See, e.g., United States v.
            Monsanto Co., 858 F.2d 160 (4th Cir. 1988). Costs
            and restitution are akin to collateral consequences.
            Conversely, fines are considered direct consequences

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              and, therefore, punishment.          See Parry [v.
              Rosemeyer], 64 F.3d [110] at 114 [(3d Cir.1995)]
              (quoting [U.S. v.] Salmon, 944 F.2d [1106] at 1130
              [(3d Cir.1991)]); see also Commonwealth v.
              Martin, [ ] 335 A.2d 424 ([Pa. Super.] 1975)
              (requiring an indigent to pay a $5,000.00 fine was per
              se manifestly excessive and constituted too severe [a]
              punishment). The Legislature authorized fines for all
              offenses and intended to relate the amount of the fine
              to the gravity of the offense. See 18 Pa.C.S.A. § 1101
              ...

              Historically, fines are punishment.     A fine is a
              monetary amount equal to the severity of the crime
              and has been used to ensure that a person does not
              receive a pecuniary gain from the offense.

Id., 867 A.2d at 583.

      It is undisputed that subsection (c)(8), governing an award of restitution

as a condition of probation, does not encompass a directive to pay court costs.

Likewise, in Commonwealth v. Rivera, 95 A.3d 913 (Pa. Super. 2014), this

Court explained that court costs are distinct from fines, and thus are not

authorized as a condition of probation under subsection (c)(11). This Court

in Rivera concluded that because court costs do not intend to “punish” the

defendant or ensure that he “does not receive a pecuniary gain from the

offense,” they are not a fine and fall outside the scope of subsection (c)(11).

Id. at 916.

      Section 9754(c)(13) is a catchall provision, written in broader terms

than subsections (c)(8) and (11). The provision authorizes the imposition of

“any” other condition of probation reasonably related to the defendant’s

rehabilitation, so long as the condition is not “unduly restrictive” of the



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J-A01018-20



defendant’s constitutional liberty or conscience.      This subsection neither

approves nor excludes monetary obligations.

      Both Appellant and the Commonwealth, however, cite to Rivera as

prohibiting the imposition of court costs as a probationary monetary condition

fashioned pursuant to subsection (c)(13).         We agree with the parties’

interpretation. It is clear from our reading of Rivera that court costs do not

reasonably relate to the rehabilitation that probation is designed to foster, and

thus, cannot be subsumed within the catchall provision of Section 9754. We

explained:

      Costs are not part of the criminal’s sentence but are merely
      incident to the judgment. Commonwealth v. Nicely, [ ] 638
      A.2d 213, 217 ([Pa.] 1994). As a mere incident to judgment,
      costs are not ‘reasonably related to the rehabilitation of the
      defendant,’ the sine qua non of probationary conditions under
      [S]ection 9754(c)(13).

Rivera, 95 A.3d at 917. Accordingly, we are constrained to conclude that

court costs are not authorized as a condition of probation under Section 9754.

      Thus, because Appellant has not violated a specific condition of

probation, we likewise conclude that the trial court erred in revoking

Appellant’s probation. In Foster, our Supreme Court held that a defendant

may be found in violation of probation where the trial court concludes, based

on a preponderance of the evidence, that the probationer “violated a specific

condition of probation or committed a new crime to be found in violation.

Absent such evidence, a violation of probation does not occur solely because

a judge believes the probationer’s conduct indicates that probation has been


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ineffective to rehabilitate or to deter against antisocial conduct.” Foster, 214

A.3d at 1243.

       As discussed supra, Section 9754 does not authorize the imposition of

court costs as a condition of probation.           Therefore, consistent with our

Supreme Court’s directive in Foster, Appellant cannot be said to be in

technical violation of his probation. Accordingly, we reverse the trial court’s

order revoking Appellant’s probation and vacate his judgment of sentence.2

       Revocation of probation reversed. Judgment of sentence vacated. Case

remanded. Jurisdiction relinquished.

       Judge Colins joins the memorandum.

       Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20


____________________________________________


2 Although not in the certified record but relevant to the proceedings on
remand, the parties acknowledge that Appellant’s court costs were paid in full
after Appellant filed his notice of appeal in this Court. See Appellant’s Brief
at 21 n.9; see also Emergency Motion for an Original Writ of Habeas Corpus,
9/24/19; Emergency Unopposed Application for Bail Pending Appeal from
Revocation of Probation Upon Technical Violation of Probation, 11/18/19.
Also, on November 21, 2019, our Supreme Court ordered Appellant released
on unsecured bail pending the resolution of this appeal. Order, 11/21/19.

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