June 21, 2011
COMMONWEALTH OF PENNSYLVANIA,
JOSEPH BRIAN MAZER,
The opinion of the court was delivered by: Dan Pellegrini, Judge
Submitted: May 13, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION BY JUDGE PELLEGRINI
Inmate Joseph Brian Mazer (Mazer)*fn1 appeals pro se from an order of the Court of Common Pleas of York County (trial court) assessing him court costs because at his sentencing he was only ordered to pay "costs of prosecution." For the reasons that follow, we affirm in part and reverse in part the trial court's order and remand for the trial court to issue an order to the Clerk of Courts to remove the additional $250 of restitution that was assessed on Mazer but not imposed by the trial court.
On March 19, 2008, Mazer appeared before the trial court for sentencing in criminal case numbers CP-67-CR-0002170-2007 (burglary; criminal conspiracy), CP-67-CR-0002213-2007 (burglary; criminal trespass; theft by unlawful taking; criminal mischief), and CP-67-CR-0000771-2008 (criminal conspiracy to commit perjury). He pled guilty to the charges and was sentenced at the hearings to 21-48 months of confinement, $500 in restitution and "costs of prosecution." On October 6, 2008, Mazer entered a no-contest plea to institutional vandalism in case number CP-67-CR-0001307-2008, was sentenced to 24 months probation, and was directed to pay the "costs of prosecution." No separate court order was issued regarding the sentencing or costs of prosecution that Mazer had to pay in any of the four cases. Mazer was transferred to SCI-Camp Hill to begin serving parole backtime for a prior conviction before serving his current sentence.
Mazer wrote to the York County Clerk of Courts (Clerk of Courts) to advise that his inmate account improperly reflected that he owed the "costs of prosecution" and the $500 restitution the trial court imposed because no court order was issued requiring him to pay court costs, only "costs of prosecution." Also, the docket should be amended to reflect only the prosecution costs that were submitted on the District Attorney's bill of costs if any. When the Clerk of Courts did not respond to Mazer, he submitted to the trial court a motion to compel seeking an order to compel the Clerk of Courts to remove the assessed court costs, costs of prosecution*fn2 and restitution assessed against him for his convictions. By order dated September 23, 2010, the trial court denied his request, and this appeal followed.*fn3
On appeal, Mazer first contends that "court costs,"*fn4 which include, for example, costs of subpoenas and photocopies, are not the same and are not part of the "costs of prosecution" that the sentencing judge directed him from the bench to pay. Mazer states that costs of prosecution are the necessary expenses incurred by the District Attorney*fn5 when prosecuting a criminal case but argues that they are not "court costs." Because the trial court only directed him to pay costs of prosecution, he is not required to pay any of the District Attorney's costs.
In Richardson v. Department of Corrections, 991 A.2d 394 (Pa.
Cmwlth. 2010), this Court discussed where the sentencing judge ordered Richardson to pay "costs of prosecution" but did not specify an amount and did not order the separate payment of "court costs." Even though the order stated that only "costs of prosecution" were to be paid, we treated "court costs" and "costs of prosecution" as one and the same.*fn6 Even though the trial court in this case did not specify that Mazer had to pay "court costs" in addition to "costs of prosecution," it is clear that based on our decision in Richardson, "costs of prosecution" also include "court costs."
Richardson also held that it was unnecessary for the court order to set forth the specific costs to be collected. We held that:
When the judge has authorized the imposition of costs, the Department may collect those costs from a prisoner without physical possession of the court order; a form signed by the Clerk of Court is sufficient authorization. Herrschaft v. Dep't of Corr., 949 A.2d 976 (Pa. Cmwlth. 2008). In addition, the practice of a judge ordering a defendant to pay costs, and leaving the assessment of the amount to the clerk appears to be a common one, as it has been noted in our cases a number of times, though never as a determinative fact. See, e.g., id.; Commonwealth v. Williams, 909 A.2d 419 (Pa. Cmwlth. 2006); Fordyce v. Clerk of Courts, 869 A.2d 1049 (Pa. Cmwlth. 2005). In addition, the text of Act 84 itself does not specify who must determine the amount of costs.
Id., 991 A.2d at 397.*fn7
Finally, Mazer alleges that the Clerk of Court does not have the authority to assess the restitution that was imposed on him by the trial court because it was excessive. He argues that regarding case no. CP-67-CR-0002213- 2007, the trial court only imposed $500 in restitution, but his docket financial information reflects that amount plus an additional entry of $250. We have reviewed the trial court docket sheet list and Mazer is correct that he has been assessed an additional $250 to pay for restitution which was not imposed by the trial court at his sentencing hearing. Consequently, that portion of the trial court's order denying his motion to compel is reversed, and the case is remanded for the trial court to issue an order to the Clerk of Courts to remove the additional $250 of restitution that was assessed on Mazer but not imposed by the trial court.
Accordingly, the order of the trial court is affirmed in part and reversed in part, and the case is remanded to the trial court to issue an order to the Clerk of Courts to remove the additional $250 of restitution that was improperly assessed to Mazer.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, : : v. Joseph Brian Mazer, : Appellant :
: No. 2307 C.D. 2010 : Nos. 2358-2360 C.D. 2010
AND NOW, this 21st day of June, 2011, the order of the Court of Common Pleas of York County, dated September 23, 2010, is affirmed in part and reversed in part in accordance with this decision. The case is remanded to the trial court to issue an order to the Clerk of Courts to remove the additional $250 of restitution that was assessed on Mazer but not imposed by the trial court.
Jurisdiction is relinquished.
DAN PELLEGRINI, JUDGE