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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                  Appellant                             PENNSYLVANIA

                      v.

MICHAEL BURROWS
                                                       No. 88 WDA 2017


           Appeal from the Judgment of Sentence December 16, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001414-2014

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD:                       FILED: October 31, 2017

        The Commonwealth takes this appeal from the judgment of sentence

entered in the Erie County Court of Common Pleas.          The Commonwealth

claims that the trial court’s sentencing order was illegal because it failed to

impose laboratory fees and limited the total costs to $2,500.00. We affirm.

        The procedural history of this appeal is as follows.     On October 24,

2016, Appellee, Michael Burrows, pleaded guilty but mentally ill to one count

of murder of the third degree1 for killing his mother.         At the sentencing

hearing     on   December   16,   2016,   the   Commonwealth     requested   the

imposition of $9,891.70 for the total cost of the prosecution, which included




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 314, 2502(c).
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$7,145.00 for the Pennsylvania State Police’s laboratory user fee.2 See R.R.

9a, 29a. The trial court, over the Commonwealth’s objection, stated that it

would impose $2,500.00 in total costs and fees due to Appellee’s expected

ability to pay and possible constitutional violations.      The trial judge

explained:

        I’ll impose all those [costs and fees] at 1414 of 2014. But
        I’m also going to find that the imposition of these fines,
        though I’ve [ordered] them, would violate—the collection
        of them would violate the Constitution. [Appellee] has an
        IQ of 65. He will never—if outside of prison—make enough
        of a living to pay those sums to the Commonwealth. And
        it’s wrong to impose these costs without concluding that
        [Appellee] actually has any real possibility of paying them.
        They would just languish over his head forever and
        prevent a fresh start.

           So, I’ve imposed them, but I’m also finding the
        collection of them would violate the Constitution given
        what I perceive his earning capacity and power is in the
        current world, it’s just not going to happen.

           No, I’m going to do something different, I’m going to
        limit them to $2,500 in terms of collection. I want to
        impose something on him, but I don’t want to basically
        bury him under a litany of fees so that when he’s out,
        these will—he’s going to have enough issues on his plate.




2
  The trial court described the Commonwealth’s requests for costs and fees
as follows: (1) $2,417.00 for blood testing; (2) $7,145.00 for DNA testing;
(3) $247.00 for transcription fees; and (4) $82.70 for constable fees. The
Pennsylvania State Police’s laboratory user fee statement was not made part
of the certified record, but was included in the Commonwealth’s reproduced
record. Appellee did not object to the accuracy of the reproduced record.
Therefore, we consider the documents contained in the reproduced record.
See Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012).



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N.T. Sentencing Hr’g, 12/16/16, at 22-23.           The trial court sentenced

Appellee to twelve to twenty-five years’ imprisonment, followed by fifteen

years’ special supervised probation, with Appellee to pay costs.3

      Appellee filed a post-sentence motion, which the trial court denied on

January 11, 2017. The Commonwealth did not file a post-sentence motion,

but timely appealed on January 12, 2017, and filed a court-ordered

Pa.R.A.P. 1925(b) statement challenging the trial court’s limitation of costs

to $2,500.00. The trial court filed an opinion suggesting that 16 P.S. § 1403

permitted it reject the Commonwealth’s request for costs and no statutory

provision precluded its discretion in limiting the total costs and fee. Trial Ct.

Op., 2/7/17, at 3. This appeal followed.

      The Commonwealth presents the following question for review:

         Did the [trial] court err in failing to impose, as part of the
         sentence, all necessary expenses, i.e., all lab fees,
         incurred by the district attorney in the investigation and
         prosecution of this case, as part of the case?

Commonwealth’s Brief at 4.

      The Commonwealth argues that “[t]he plain language and plain

meaning of 16 P.S. § 1403, 42 Pa.C.S. [§§] 9728[4] and []1725.3 suggest



3
  The written sentencing order states that Appellee “will pay costs” and “shall
pay supervision fees/administrative costs per month/payment plan.”
Sentencing Order, 12/16/16. The order does not contain the trial court’s
intended $2,500.00 limit on costs and fees or direct an installment plan, but
a December 22, 2016 docket entry indicated “Penalty Assessed (LAB Fees
not to exceed $2,500.00). Docket, CP-25-CR-0001414-2014, at 17.



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that payment of these expenses[, i.e., the collection of physical evidence,

serology testing and DNA analysis,] is mandatory and thus, not a

discretionary aspect of sentencing.” Id. at 9. Moreover, the Commonwealth

contends that those expenses were necessary because they were “essential

in the identification of [Appellee] and the investigation and prosecution of

the case[.]”    Id. at 8.    Thus, the Commonwealth concludes that “[t]he

failure to impose all necessary costs in this case, specifically the laboratory

fees, rendered the sentence illegal and . . . in error.”          Id. at 9.   For the

reasons that follow, we conclude that no relief is due because the

Commonwealth’s challenge goes to the discretionary aspects of the sentence

rather than its legality.

      “The determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Garzone, 993 A.2d 306,

316 (Pa. Super. 2010) (citation and quotation marks omitted).             Moreover,

this Court may review a question regarding the legality of the sentence sua

sponte. Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998)

(en banc).

      The    relevant   statutes   governing   the   costs   of    prosecution   and

laboratory fees are as follows:

4
  Section 9728 “provides the procedural mechanism for the collection of
court costs and fines.” Commonwealth v. LeBar, 860 A.2d 1105, 1109
(Pa. Super. 2004) (citation and quotation marks omitted).



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        § 1403. Expenses incurred by district attorney

        All necessary expenses incurred by the district attorney or
        his assistants or any office directed by him in the
        investigation of crime and the apprehension and
        prosecution of persons charged with or suspected of the
        commission of crime, upon approval thereof by the district
        attorney and the court, shall be paid by the county from
        the general funds of the county. In any case where a
        defendant is convicted and sentenced to pay the costs of
        prosecution and trial, the expenses of the district attorney
        in connection with such prosecution shall be considered a
        part of the costs of the case and be paid by the defendant.

16 P.S. § 1403.

        § 1725.3. Criminal laboratory and paramedic user
        fee

           (a) Imposition.―A person who . . . is convicted of a
           crime as defined in 18 Pa.C.S. § 106 (relating to classes
           of offenses) . . . shall, in addition to any fines, penalties
           or costs, in every case where laboratory services were
           required to prosecute the crime or violation, be
           sentenced to pay a criminal laboratory or paramedic
           user fee which shall include, but not be limited to, the
           cost of sending a laboratory technician or paramedic to
           court proceedings.

           (b) Amount of user fee.―

              (1) The director or similar officer of the county
              laboratory or emergency medical services agency
              that has provided services in the prosecution shall
              determine the actual cost of the laboratory or
              paramedic services provided in the prosecution and
              transmit a statement for services rendered to the
              court.

              (2) If a Pennsylvania State Police laboratory has
              provided services in the prosecution, the director or
              similar officer of the Pennsylvania State Police
              laboratory shall determine the actual cost of the
              laboratory services provided in the prosecution and


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              transmit a statement for services rendered to the
              court.

                                      ***

           (d) Other laws.―The criminal laboratory and
           paramedic user fee shall be imposed notwithstanding
           any other provision of law to the contrary.

42 Pa.C.S. § 1725.3(a)-(c), (d).

     Additionally, Pennsylvania Rule of Criminal Procedure 706 states:

        (A) A court shall not commit the defendant to prison for
        failure to pay a fine or costs unless it appears after hearing
        that the defendant is financially able to pay the fine or
        costs.

        (B) When the court determines, after hearing, that the
        defendant is without the financial means to pay the fine or
        costs immediately or in a single remittance, the court may
        provide for payment of the fines or costs in such
        installments and over such period of time as it deems to
        be just and practicable, taking into account the financial
        resources of the defendant and the nature of the burden
        its payments will impose, as set forth in paragraph (D)
        below.

        (C) The court, in determining the amount and method of
        payment of a fine or costs shall, insofar as is just and
        practicable, consider the burden upon the defendant by
        reason of the defendant’s financial means, including the
        defendant’s ability to make restitution or reparations.

        (D) In cases in which the court has ordered payment of a
        fine or costs in installments, the defendant may request a
        rehearing on the payment schedule when the defendant is
        in default of a payment or when the defendant advises the
        court that such default is imminent. At such hearing, the
        burden shall be on the defendant to prove that his or her
        financial condition has deteriorated to the extent that the
        defendant is without the means to meet the payment
        schedule. Thereupon the court may extend or accelerate
        the payment schedule or leave it unaltered, as the court


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        finds to be just and practicable under the circumstances of
        record. When there has been default and the court finds
        the defendant is not indigent, the court may impose
        imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706.

     The language of Section 1403 and 1725.3 is mandatory and does not

provide for consideration of a defendant’s ability to pay prior to the

imposition of the district attorney’s costs or the laboratory user fee.

Therefore, Rule     706   provides the   procedures affording constitutional

protections for indigent defendants. See Commonwealth v. Hernandez,

917 A.2d 332, 336-37 (Pa. Super. 2007) (discussing interplay between Rule

706 and Section 1403). This Court, however, has consistently held that Rule

706 does not require a hearing on a defendant’s ability to pay when costs

are imposed. See id. at 337; see also Commonwealth v. Childs, 63 A.3d

323, 325-26 (Pa. Super. 2013) (applying Hernandez to reject the claim

that a defendant was entitled to a hearing on his ability to pay costs before

the imposition of the costs of parole under 18 P.S. § 11.1102).

     The Commonwealth’s legality of sentence challenge thus turns on

whether Rule 706(C) permits the trial court to consider the burden of costs

and fees at the time of sentencing when determining the amount and

method of payment. If Rule 706(C) does not apply at sentencing, then there

is merit to the Commonwealth’s argument that the trial court erred in

reducing its request for costs and fees without proper authority.      If so,

however, the Commonwealth’s challenge is more properly directed to the


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discretionary aspects of the sentence.     See Commonwealth v. Boyd, 73

A.3d 1269, 1273-74 (Pa. Super. 2013) (en banc) (distinguishing between

legality and discretionary sentencing challenges to the imposition of a fine).

      This Court has on one occasion suggested that Rule 706(C) does not

apply at the time of sentencing, but that decision was reversed on other

grounds by the Pennsylvania Supreme Court. Commonwealth v. Ciptak,

657 A.2d 1296, 1298 (Pa. Super. 1995), rev’d on other grounds, 665 A.2d

1161 (Pa. 1995).5    However, the language of Rule 706(C) does not limit

itself to post-sentence defaults. Moreover, other statutes suggest that Rule

706(C) permits the trial court to consider the burden of the amount of costs

in light of a defendant’s financial means.       For example, 42 Pa.C.S. §

9721(c.1) addresses the imposition of mandatory payment of costs at

sentencing and states:

         Notwithstanding the provisions of section 9728 (relating to
         collection of restitution, reparation, fees, costs, fines and
         penalties) or any provision of law to the contrary, in
         addition to the [sentencing] alternatives set forth in
         subsection (a), the court shall order the defendant to pay
         costs. In the event the court fails to issue an order for
         costs pursuant to section 9728, costs shall be imposed
         upon the defendant under this section. No court order
         shall be necessary for the defendant to incur liability for
         costs under this section.        The provisions of this
         subsection do not alter the court’s discretion under
         Pa.R.Crim.P. No. 706(C) (relating to fines or costs).

5
  We also note that the two other panel judges in Ciptak concurred in the
result. The Pennsylvania Supreme Court reversed in a per curiam order
because the public defender’s office represented the defendant at trial and
on his claim that trial counsel was ineffective. Ciptak, 665 A.2d at 1161.



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42 Pa.C.S. § 9721(c.1) (emphasis added). Section 9728, which addresses

collection, similarly states:

           (b.2) Mandatory payment of costs.—Notwithstanding
           any provision of law to the contrary, in the event the court
           fails to issue an order under subsection (a) imposing costs
           upon the defendant,[6] the defendant shall nevertheless be
           liable for costs, as provided in section 9721(c.1), unless
           the court determines otherwise pursuant to
           Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
           The absence of a court order shall not affect the
           applicability of the provisions of this section.

42 Pa.C.S. § 9728(b.2)(emphasis added).

        In light of the foregoing, we conclude that the trial court retains some

discretion under Rule 706(C) “in determining the amount and method of

payment of a fine or costs.”          Pa.R.Crim.P. 708(C).    Accordingly, the

Commonwealth’s claim that the trial court lacked a proper basis to reduce

the request for costs and fees lacks merit as the trial court clearly

considered the burden on Appellee based on his financial means and

compromised ability to pay. See Commonwealth v. Church, 522 A.2d 30,


6
    Section 9728(a)(1) states, in part:

           A sentence, pretrial disposition order or order entered
           under section 6352 (relating to disposition of delinquent
           child) for restitution, reparation, fees, costs, fines or
           penalties shall, together with interest and any additional
           costs that may accrue, be a judgment in favor of the
           probation department upon the person or the property of
           the person sentenced or subject to the order.

42 Pa.C.S. § 9728(a)(1).



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33-34 (Pa. 1987) (holding that the trial court erred in reducing mandatory

fine from $13,517.50 to $3,000.00 for overweight vehicle where, in part,

there was “no claim of total indigency and no threat of incarceration,” but

noting reasonable installment plan would avoid any constitutional infirmity).

Moreover, the Commonwealth has failed to preserve a discretionary aspect

of sentence claim directed towards the trial court’s determination of the

burden on Appellee and the amount of costs and fees, or argue that the trial

court’s findings constituted an abuse of discretion. Therefore, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

     Judge Solano joins the Memorandum.

     Judge Stabile files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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