J-A04023-18

                                   2018 Pa. Super. 176


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRIAN G. SMETANA                           :
                                               :   No. 894 MDA 2017
                       Appellant

                  Appeal from the Order Entered April 24, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001421-2014

BEFORE:       STABILE, J., NICHOLS, J., and RANSOM, J.*

OPINION BY NICHOLS, J.:                                   FILED JUNE 21, 2018

        Appellant Brian G. Smetana appeals from the order holding him in

contempt and sending him to prison for failure to pay court-ordered fines and

costs. Appellant contends that the trial court erred by imprisoning him without

rendering findings of fact that he had the financial ability to pay the fine and

costs and that he willfully refused to pay. Because the trial court erred, we

vacate the order below and remand for a new hearing.

        On December 10, 2014, Appellant entered a negotiated plea of guilty to

loitering, public drunkenness, trespass, and disorderly conduct. In relevant

part, the court ordered Appellant to pay $600 in fines and $1,129 in costs.




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*   Retired Senior Judge assigned to the Superior Court.
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Appellant made some payments, but presently owes a combined total of

$928.50.

        Because Appellant fell behind on his payments, the court scheduled a

contempt hearing for March 27, 2017. But Appellant failed to appear, and so

the court issued a bench warrant.

        Appellant was arrested and appeared at an April 5, 2017 bench warrant

hearing. At the hearing, the trial court asked Appellant why he stopped paying

the fines and costs.     N.T. Bench Warrant Hr’g, 4/5/17, at 3.      Appellant

explained that he was not working, was evicted and had to find another place

to live, and had a drug habit. Id. at 3-4. The court imposed a $500 cash bail

and scheduled a contempt hearing for April 24, 2017. Id. at 4. The court

advised Appellant that for the contempt hearing, he had a right to be

represented by counsel. Id. Because he did not pay bail, Appellant remained

in prison. N.T. Contempt Hr’g, 4/24/17, at 2. On April 12, 2017, the Office

of the Public Defender entered its appearance for Appellant.

        At the April 24, 2017 contempt hearing, the Commonwealth was

represented only by a probation officer from the Lebanon County Collections

and Disbursement Unit, and Appellant was represented by a public defender.

We reproduce the entirety of the hearing after the court swore Appellant under

oath:

        [Probation officer]: Your Honor, this was the first bench warrant
        that was issued for [Appellant]. His payment plans were set at a
        hundred dollars a month. He was picked up on the warrant that
        was issued March 27th. Bail was set at five hundred dollars,

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     obviously not paid and he is eight hundred and sixty dollars past
     due your Honor.

     [The court]: Counsel?

     [Appellant’s counsel]: Thank you, your Honor. On behalf of
     [Appellant], he doesn’t have any money to pay today. Nor did
     anyone bring him any money. This is the first time he’s been late.
     The last time he paid was a few months ago.

     [The court]: What do you mean by a few months ago? Define a
     few. 8/24/2016 - the last payment we received.

     [Appellant]: So that’s seven months.

     [The court]: I believe, let’s see. How about September, October,
     November, December, January, February, March - one, two,
     three, four, five, six, seven. Yep, at least seven. At least seven.
     So a few is one or two. Seven is another number. Okay.

     [Appellant’s counsel]: He does have employment waiting for him
     through Al Merce [sic] it’s a situation where he flips homes. He’s
     willing to do a wage attachment he would need...

     [The court]: Well, I’ll give him work release...

     [Appellant’s counsel]: Okay.

     [The court]: But does anybody, do you have any money?

     [Appellant]: Not as of today, my sister couldn’t get off work...

     [The court]: Well, if you called your sister, how much can you get
     me?

     [Appellant]: I could get two hundred dollars.

     [The court]: There you go. The Court finds [Appellant] in contempt
     and directs he be incarcerated in the Lebanon County Correctional
     Facility for a period of thirty days. He may purge himself of this
     contempt by paying two hundred dollars on the arrears and paying
     the previously imposed support order [of $100 per month] as
     directed. The Court has no objection to immediate work release.


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        [Probation officer]: Your Honor, would you be opposed to time
        credit from April 5 til today?

        [The court]: No, I don’t. That’s fine.

N.T. Contempt Hr’g, 4/24/17, at 2-3 (ellipses in original).

        On April 25, 2017, the trial court entered an order holding Appellant in

contempt and sentencing him to thirty days’ imprisonment with credit for time

served and a purge condition of $200. The order did not set forth any legal

reasoning, findings of fact, or conclusions of law. Order, 4/25/17.

        On May 2, 2017, new counsel entered their appearance for Appellant

and filed a petition for a writ of habeas corpus. The petition claimed that the

trial court’s inquiry into Appellant’s financial means was inadequate.

Appellant’s Pet. for Writ of Habeas Corpus, 5/2/17, at 4. The petition alleged

that the court failed to make any findings that Appellant had the financial

resources to pay the fines and costs but willfully failed to do so. Id. The

petition also pointed out that Appellant failed to pay his $500 bail and argued

he had no ability to pay the $200 purge condition.            Id.   According to

Appellant’s appellate brief, because Appellant was released on May 4, 2017,

he withdrew the petition.1

        Appellant timely appealed from the April 25, 2017 order on May 22,

2017, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial



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1   The record, however, does not reflect a formal notice of withdrawal.


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court responded with a two-sentence order merely stating that “upon

consideration” of Appellant’s Rule 1925(b) statement, “we hereby affirm our

Order dated April 24, 2017,” which was entered on April 25, 2017. Order,

8/1/17.2     The second sentence of the court’s order instructed the clerk of

courts to transmit the record to this Court. Id.

        Appellant raises the following issues:

        1. Did the trial court err by holding [Appellant] in civil contempt
        for failure to pay his court fines and costs and incarcerating him
        without inquiring into his ability to pay?

        2. Did the trial court abuse its discretion by holding [Appellant] in
        contempt when the evidence on the record demonstrated that he
        was unable to pay?

        3. Did the trial court abuse its discretion by setting a dollar amount
        by which [Appellant] could purge his contempt and be released
        from incarceration without finding beyond a reasonable doubt that
        [Appellant] had the present ability to comply with the Court’s
        order and meet that purge condition?

        4. Did the trial court err by placing [Appellant] on a payment plan
        without inquiring into his financial circumstances and determining



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2   The trial court’s order does not comply with Pa.R.A.P. 1925(a), which states:

        the judge who entered the order giving rise to the notice of appeal,
        if the reasons for the order do not already appear of record, shall
        forthwith file of record at least a brief opinion of the reasons for
        the order, or for the rulings or other errors complained of, or shall
        specify in writing the place in the record where such reasons may
        be found.

Pa.R.A.P. 1925(a)(1).




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       that the ordered payment was within his means and did not
       unreasonably impose a financial hardship?

Appellant’s Brief at 5.3

       In support of his first issue, Appellant argues that the trial court erred

by not ascertaining whether he had the financial resources to pay the fines

and costs.      Appellant’s Brief at 12.       The trial court’s inquiry into whether

Appellant brought any money with him, Appellant maintains, is wholly

insufficient.    Id. at 13.    In support, Appellant cites Pennsylvania Rule of

Criminal Procedure 706 and 42 Pa.C.S. § 9730(b)(2). Appellant notes that

although the court failed to inquire into his financial status, his then-counsel

stated that he had no money that day and no other person brought money on

his behalf. Id. at 16. He asserts that the court’s inquiry into whether he could

borrow money from his sister is improper because the key question is whether

he could pay and not whether he knew his family and friends had financial

resources. Id.

       The Commonwealth initially agrees that this is a civil contempt

proceeding. The Commonwealth, however, posits that Rule 706 and pertinent

caselaw provide guidance “on how to determine whether a defendant is

willfully refusing pay their fines and costs.” Commonwealth’s Brief at 7. The



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3The Pennsylvania Association of Criminal Defense Lawyers and Pennsylvania
Legal Aid Network have filed an amicus brief raising arguments in support of
Appellant.


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Commonwealth references testimony from the bench warrant and contempt

hearings and asserts that the trial court did not abuse its discretion by

concluding Appellant had some ability to pay his fines and cost but

intentionally did not.      Id. at 7-8.4       We hold Appellant has demonstrated

entitlement to relief.

       The standard of review for an order finding a party in contempt is an

abuse of discretion. Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa.

2003). “Discretion is abused when the course pursued represents not merely

an error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied[.]” Id. at 762 (citations omitted).

       By way of background, Section 9728 of the Sentencing Code discusses

the collection of fines and costs:

       (1) Except as provided in subsection (b)(5),[5] all restitution,
       reparation, fees, costs, fines and penalties shall be collected by
       the county probation department or other agent designated by the
       county commissioners of the county with the approval of the
       president judge of the county for that purpose in any manner
       provided by law. However, such restitution, reparation, fees,
       costs, fines and penalties are part of a criminal action or
       proceeding and shall not be deemed debts.

42 Pa.C.S. § 9728(a)(1).


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4 The Commonwealth does not argue that Appellant waived his issue for failure
to raise it to the trial court.
5This subsection addresses deductions from an offender’s personal financial
account with the Department of Corrections and is not pertinent here. See
generally 42 Pa.C.S. § 9728(b)(5).


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       Section 9730, in turn, sets forth the procedures for a failure to pay:

       (b) Procedures regarding default.—

       (1) If a defendant defaults in the payment of a fine, court costs or
       restitution after imposition of sentence, the issuing authority or a
       senior judge or senior magisterial district judge appointed by the
       president judge for the purposes of this section may conduct a
       hearing to determine whether the defendant is financially able to
       pay.

       (2) If the issuing authority, senior judge or senior magisterial
       district judge determines that the defendant is financially able to
       pay the fine or costs, the issuing authority, senior judge or senior
       magisterial district judge may turn the delinquent account over to
       a private collection agency or impose imprisonment for
       nonpayment, as provided by law.

       (3) If the issuing authority, senior judge or senior magisterial
       district judge determines that the defendant is without the
       financial means to pay the fine or costs immediately or in a single
       remittance, the issuing authority, senior judge or senior
       magisterial district judge may provide for payment in installments.
       ...

       (4) A decision of the issuing authority, senior judge or senior
       magisterial district judge under paragraph (2) or (3) is subject to
       section 5105 (relating to right to appellate review).

42 Pa.C.S. § 9730(b)(1)-(3).6




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6 The Pennsylvania Supreme Court has apparently construed the statute as
requiring a hearing. Buck v. Beard, 879 A.2d 157, 161 (Pa. 2005) (noting
that “pursuant to Section 9730(b) of the Sentencing Code, when a defendant
is in default, the court of common pleas conducts a hearing to determine the
defendant’s ability to pay, and then may order an appropriate payment plan.
Section 9730(b) directs the court to consider the defendant’s financial
resources”).


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       The Pennsylvania Commonwealth Court has explained the procedure for

imprisoning a defaulting offender as follows:

       Before an offender can be confined solely for nonpayment
       of financial obligations he or she must be given an
       opportunity to establish inability to pay. If the offender
       establishes indigence, he or she will be allowed to make payments
       in reasonable installments. Thus, if an offender defaults in the
       payment of a fine or court costs after imposition of sentence, the
       fines and costs court may conduct a hearing to ascertain
       information regarding an offender’s financial resources.        42
       Pa.C.S. § 9730(b)(1). If the fines and costs court determines the
       offender is able to pay fines or costs, it may turn the delinquent
       account over to a private collection agency or impose
       imprisonment for nonpayment, as provided by law. 42 Pa.C.S. §
       9730(b)(2).

       Imprisonment for nonpayment of financial obligations may [also]
       be imposed on a finding of contempt for failure to pay a fine, 42
       Pa.C.S. § 9772,[7] on a finding of contempt for failure to make
       restitution, 18 Pa.C.S. § 1106,[8] or on a finding of violation of a
       specific condition of supervision. 42 Pa.C.S. § 9773. Each
       proceeding requires a hearing.

George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003) (emphasis added

and some citations omitted).

       If . . . failure to pay sentenced financial obligations exposes an
       offender to initial confinement, additional confinement or
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7 In relevant part, Section 9772 states, “[u]nless there is proof that failure to
pay a fine or that portion of the fine that is due is excusable, the court may
after a hearing find the defendant guilty of contempt and sentence him to not
more than six months imprisonment, if a term of confinement of that amount
could have been imposed for the offense charged.” 42 Pa.C.S. § 9772.
8 Section 1106(f), in pertinent part, states “[u]pon such notice of failure to
make restitution, or upon receipt of the contempt decision from a magisterial
district judge, the court shall order a hearing to determine if the offender is in
contempt of court or has violated his probation or parole.” 18 Pa.C.S. §
1106(f).


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       increased conditions of supervision, a hearing is warranted.
       Stated differently, if an offender is notified that he or she is
       charged with contempt or with probation or parole violations as a
       result of failure to pay fines, costs or restitution, the offender
       should be afforded a hearing.

Id.

       Pennsylvania      Criminal     Rule     of   Procedure   706   similarly   bars

imprisonment unless the court conducts a hearing and ascertains that the

defendant has the financial ability to pay:

       (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 . . . .

       (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.

Pa.R.Crim.P. 706.9

       Initially, we acknowledge that the trial court did not specify the

particular framework it was proceeding under, e.g., 42 Pa.C.S. § 9730, 42



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9 This rule of criminal procedure would seem to suggest that contempt from a
failure to pay court-ordered fines and costs would be criminal in nature.


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Pa.C.S. § 9772, or Pa.R.Crim.P. 706. The court’s lack of specificity, however,

does not inhibit our review because prior to imprisoning a contemnor for

failure to pay court-ordered fines or costs, the trial court must render findings

of fact as to the contemnor’s financial resources.     See 42 Pa.C.S. § 9730

(stating imprisonment for nonpayment must be pursuant to law); 42 Pa.C.S.

§ 9772 (explaining imprisonment for nonpayment must occur after a hearing

and a determination that the defendant’s failure to pay was not excusable);

Pa.R.Crim.P. 706 (specifying that a court shall not imprison without a hearing

and a finding that the defendant had a financial ability to pay).

      Here, the trial court failed to make any findings of fact on Appellant’s

ability to pay prior to imprisoning him.      See 42 Pa.C.S. § 9730(b)(2); 42

Pa.C.S. § 9772; Pa.R.Crim.P. 706. Although Appellant indicated that he could

potentially borrow money from a sibling, the court failed to find—as our law

requires—that he alone had the financial ability to pay the outstanding fines

and costs such that imprisonment was warranted. Order, 4/25/17; see 42

Pa.C.S. § 9730(b)(2) (mandating that the court must determine “that the

defendant is financially able to pay the fine or costs” before imprisoning

defendant for nonpayment as provided by law (emphasis added)); 42 Pa.C.S.

§ 9772 (providing that a court cannot hold a defendant in contempt and

imprison defendant unless there is proof that the failure to pay fine was not

excusable); Pa.R.Crim.P. 706 (stating that unless a defendant is financially

able, the court “shall not” imprison a defendant for failure to pay fines or


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costs). We acknowledge that Section 9730 does not define “defendant” but a

common-sense definition of the term would exclude the defendant’s family

and friends. See Commonwealth v. Melvin, 103 A.3d 1, 24 (Pa. Super.

2014) (“Absent a definition in the statute, statutes are presumed to employ

words in their popular and plain everyday sense, and the popular meaning of

such words must prevail.” (citation omitted)). And a common sense definition

of defendant is a “person . . . accused in a criminal proceeding.” Black’s Law

Dictionary 482 (9th ed. 2009). By imprisoning Appellant without the required

findings of fact on his financial resources, the court failed to apply the law

properly.10 See Bowden, 838 A.2d at 762. Thus, we vacate the order below

and remand for a hearing on Appellant’s financial means to pay the court-

ordered fines and costs and whether Appellant willfully failed to pay. The court

must make the appropriate findings of fact.        In light of the foregoing, we

vacate the payment plan.

       Order vacated. Case remanded for further proceedings.         Jurisdiction

relinquished.



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10 We note that the National Task Force on Fines, Fees and Bail Practices has
drafted a useful summary articulating the procedure for collecting court-
imposed fines and costs. Nat’l Task Force on Fines, Fees and Bail Practices,
Lawful     Collection    of    Legal    Financial    Obligations      (2017),
http://www.ncsc.org/~/media/Images/Topics/Fines%20Fees/BenchCard_FIN
AL_Feb2_2017.ashx. Page two of this document refers to a document titled,
Best Practices for Determining the Right to Counsel in Legal Financial
Obligation Cases, which has not yet been released.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/21/2018




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