Appeal from the Judgment of Sentence June 24, 2010 In the Court of Common Pleas of Indiana County Criminal Division at No(s): CP-32-CR-000488-2009.
BEFORE: STEVENS, P.J. [*] , BENDER, J., PANELLA, J., DONOHUE, J., ALLEN, J., MUNDY, J., OLSON, J., OTT, J., and WECHT, J.
In this appeal, we are asked to address whether the requirement of issue preservation applies to claims that the sentencing court breached a duty in imposing a sentence that admittedly does not exceed the statutory maximum. Specifically, we must determine whether a claim that the sentencing court failed to consider the defendant's ability to pay before imposing fines, in contravention of 42 Pa.Cons.Stat.Ann. § 9726(c), must be raised before the sentencing court in order to be preserved for appellate review. After careful consideration, we hold that such a claim is non-waivable if the defendant alleges that there was no evidence of record concerning the defendant's ability to pay, because the issue attacks the legality of the sentence. On the other hand, all other claims concerning the defendant's ability to pay a fine must be preserved by raising them in the first instance before the trial court, because they concern an alleged abuse of discretion by the trial court.
As Boyd's claim on appeal is that there was no evidentiary basis for the fines imposed, his issue is not waived, despite his failure to raise it before the trial court. However, we conclude that since there was an evidentiary basis of record for the imposition of fines, Boyd's argument merits no relief. In addition, we conclude that Appellant's challenge to the weight of the evidence at trial supporting his convictions is meritless.
Appellant, Martin Roger Boyd, Jr., was arrested following a shooting during the early morning hours of April 3, 2009. Thereafter, a jury found Boyd guilty of aggravated assault – serious bodily injury, attempted aggravated assault – serious bodily injury, two counts of recklessly endangering another person ("REAP"), two counts of simple assault, and carrying a firearm without a license. On June 24, 2010, the sentencing court sentenced Boyd to an aggregate term of incarceration of not less than eight and one-half years to not more than twenty years. The sentencing court also imposed fines, costs, and restitution upon Boyd.
Boyd filed a timely notice of appeal, and the trial court ordered Boyd to file a statement of matters complained of on appeal pursuant to the Pennsylvania Rules of Appellate Procedure. Boyd filed a timely statement, and the trial court filed its opinion in support of the verdict and sentence on September 16, 2010. Boyd's appeal is now ripe for our review.
On appeal, Boyd argues that his sentence is illegal as the sentencing court failed to consider Boyd's ability to pay the fines imposed. A sentencing court "shall not sentence a defendant to pay a fine unless it appears of record that … the defendant is or will be able to pay the fine …." 42 PA.CONS.STAT.ANN. § 9726(c). However, before reaching the substance of Boyd's argument, we must determine whether it is a viable issue on appeal.
It is undisputed that Boyd failed to raise this issue at sentencing, through a post-sentence motion, or in his statement of matters complained of on appeal. For most issues, this failure, sometimes referred to as a failure to preserve the issue, would deem the issue waived for appellate review. Nevertheless, some issues carry such weight that Pennsylvania appellate courts have refused to find them waived even when an appellant has not preserved the issue by raising it in the trial court.
One class of issues that has traditionally not needed to be preserved through presentation to the court below involves what has been called the "legality" of a criminal sentence. See Commonwealth v. Hopkins, ___ A.3d ___, ___, 2013 WL 2153109, *4 (Pa. Super., filed May 20, 2013). Chief Justice Castille has explained that
[t]he classic claim of an illegal sentence is where the sentence exceeded the statutory maximum for the offense(s). A court is simply unauthorized to impose such a sentence. Another example of a clearly illegal sentence is one imposed by a court lacking jurisdiction.
Commonwealth v. Foster, 609 Pa. 502, 530, 17 A.3d 332, 349 (2011) (concurring opinion). This "bright line" test has been consistently applied by this Court. See Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc); Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super. 2006) (en banc), appeal denied, 917 A.2d 313 (Pa. 2007); Commonwealth v. Williams, 900 A.2d 906 (Pa. Super. 2006) (en banc), appeal denied, 591 Pa. 673, 916 A.2d 1102 (Pa. 2007); Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (en banc).
Boyd argues that the sentencing court lacked the authority to impose a fine without first determining, from evidence of record, that he had the ability to pay the fine. Therefore, Boyd's argument continues, his claim is one that implicates the legality of the sentence and is therefore immune to waiver. In support, Boyd cites to language contained in the lead opinion for the Pennsylvania Supreme Court's decision in Foster.
In Foster, the Supreme Court was asked to review this Court's decision to vacate a mandatory minimum sentence. In particular, the Supreme Court was required to review the predicate conclusion that a challenge to the imposition of a mandatory minimum sentence that was still within statutory guidelines constituted a non-waivable ...