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Commonwealth v. Diaz

Superior Court of Pennsylvania

April 30, 2018


          Appeal from the Order Entered April 25, 2017 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001175-2013, CP-38-CR-0001838-2012

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


          NICHOLS, J.

         Appellant William Perez Diaz appeals from the order holding him in contempt and imprisoning him for failure to pay court-ordered fines and costs. Appellant challenges whether the trial court erred by not appointing him counsel and without making a finding of fact that he had the financial ability to pay. Because the court erred, we vacate the order below and remand for appointment of counsel and a new hearing, at which the trial court must render appropriate findings on Appellant's financial ability to pay the fines and costs.

         At docket no. 1838-2012, on July 3, 2013, Appellant entered a plea of guilty to retail theft and was ordered to pay $23.98 in restitution, $400 in fines, and $1, 686.35 in costs. The trial court imposed a sentence of 100 days' to eighteen months' imprisonment, but immediately paroled him. Order, 7/3/13. At some point, Appellant paid the restitution in full.

         At docket no. 1175-2013, on December 18, 2014, Appellant entered a plea of guilty to use of or possession with intent to use drug paraphernalia, and the trial court ordered him to pay $100 in fines and $1, 536 in costs. The court sentenced Appellant to serve one year of probation.

         Both dockets reflect several entries for hearings on a violation of probation or parole, as well as bench warrants and delinquency notices. In pertinent part, the docket for no. 1838-2012 reflects a November 2, 2016 entry for "contempt fines and costs scheduled 01/30/2017 9:00 a.m." Docket at 15. The trial court subsequently scheduled a delinquency hearing for January 30, 2017. Appellant failed to appear for the hearing, and the court issued a bench warrant.

         On April 6, 2017, Appellant appeared at a bench warrant hearing. At the hearing, the court asked Appellant how much he could afford for bail. N.T. Bench Warrant Hr'g, 4/6/17, at 3. Appellant responded that he knew someone in Reading, Pennsylvania, who could provide "maybe fifty to a hundred dollars and (inaudible) maybe twenty dollars."[1] Id. at 4. The trial court informed Appellant of his right to counsel, vacated the bench warrant, and set bail at $100 for each docket, for a total of $200 cash. Id. at 2, 4. The court also scheduled a contempt hearing. The court did not explicitly advise Appellant that he could be imprisoned if he failed to make bail. Appellant did not pay bail, so he remained in prison.

         At the April 24, 2017 contempt hearing, Appellant appeared without counsel. The trial court did not colloquy Appellant about proceeding pro se, and Appellant did not waive his right to counsel. The Commonwealth was represented only by a probation officer from the Lebanon County Collections and Disbursement Unit.

         We reproduce the entirety of the hearing after the trial court swore Appellant under oath:

[Probation officer]: Your Honor, this is the second time [Appellant] is scheduled for a contempt hearing. Previously one bench warrant issued. Payment plan is currently set at $100 a month per agreement that he signed back on January 11, 2016.
[The court]: William [addressing Appellant], did anybody come with any money?
[Appellant]: I did get a letter from . . . that in Reading he does have a job for me . . . (inaudible)
[The court]: The [c]ourt makes the following findings. This is the second time this has been scheduled. One previous bench
warrant. Payments were set at $100 a month per an agreement in January 2016. He's failed to pay since a year ago, over a year ago-March. With a balance of $710.33 in one case and $1636.00 in another. The [c]ourt 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 on [docket no. 1838-2012] by paying $100 on the account. And on [docket no. 1175-2013] by paying $150. The [c]ourt has no objection to immediate work release. All right.
[Probation officer]: Your Honor, if you could add a [c]ourt [o]rdered amount.
[The court]: And the [c]ourt ordered amount of $100 a month. N.T. Contempt Hr'g, 4/24/17, at 2-3 (ellipses in original).

         The trial court subsequently entered the following order clarifying the inaudible portion of the hearing:

The record in this matter is AMENDED such that, in the portion of the April 24, 2017 transcript where [Appellant's] statement is. "inaudible, " the record shall reflect that the [Appellant] stated that no one came that day with any money to pay his fines and costs, that he had received a letter from a friend stating that he had a possible job constructing pallets available in Reading, and that he could continue to sell his blood plasma to make some money.

Order, 8/22/17.

         On April 25, 2017, the trial court entered an order holding Appellant in contempt and sentencing him to thirty days' imprisonment with a total purge condition of $250. The order did not set forth any legal reasoning, findings of fact, or conclusions of law.

         On May 2, 2017, Appellant filed a counseled petition for a writ of habeas corpus, which alleged, among other reasons, that his imprisonment was unlawful because the trial court failed to (1) find he had the financial resources to pay the fines and costs but willfully failed to do so, and (2) appoint counsel. Appellant's Pet. for Writ of Habeas Corpus, 5/2/17, at 4-6. Appellant, however, was released from prison on May 4, 2017, and thus Appellant filed a notice of withdrawal of his petition for writ of habeas corpus on May 9, 2017. Appellant's Notice of Withdrawal of Pet. for Writ of Habeas Corpus, 5/9/17.

         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 court responded with 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, which we have reordered as follows:

1. Did the trial court err by incarcerating [Appellant] for civil contempt without either providing him with counsel or obtaining a knowing, intelligent, and voluntary waiver of that right?
2. 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?
3. 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?
4. 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?
5. Did the trial court err by placing [Appellant] on a payment plan without inquiring into his financial circumstances and determining that the ordered payment was within his means and did not unreasonably impose a financial hardship?

         Appellant's Brief at 5 (issues reordered to facilitate disposition).[3]

         I. Appellant's Right to Counsel

         In support of Appellant's first issue, he raises three arguments. We summarize two, as they are dispositive. Appellant initially acknowledges that because this is a civil contempt proceeding, he has no right to counsel under the Sixth Amendment of the United States Constitution.[4] Appellant's Brief at 19. Instead, Appellant asserts, he has right to counsel under the Due Process Clause of the Fourteenth Amendment.[5] Id. Appellant suggests that under the three-factor balancing test set forth in Turner v. Rogers, 564 U.S. 431 (2011), he should have been appointed counsel. Appellant's Brief at 20-21. For the first factor, he points out that "loss of liberty through imprisonment" alone warrants the right to counsel. Id. at 21. With respect to the second factor, Appellant contends that without appointed counsel, "there is a substantial risk that unrepresented individuals who have not willfully refused to pay will be wrongfully held in contempt and incarcerated." Id. Lastly, he asserts that there are no countervailing interests that would justify not appointing counsel. Id. at 21-22. Appellant points out the asymmetry between (1) the Commonwealth with its expertise and resources, and (2) an uncounseled defendant charged with contempt for nonpayment. Id. at 22. Appellant maintains appointment of counsel would promote fairness in the proceedings and ameliorate the asymmetry. Id.

         The Commonwealth acknowledges that "counsel must be assigned" in a civil contempt proceeding for nonpayment of fines and costs because there is a likelihood of imprisonment. Commonwealth's Brief at 5, 9.[6] The Commonwealth does not address the Turner factors discussed by Appellant. The Commonwealth, although conceding that Appellant is entitled to counsel, nonetheless argues, as discussed in further detail below, that Appellant waived his right to counsel. Id. at 10.[7]

         Ordinarily, a failure to preserve the arguments raised on appeal would raise concerns about appellate waiver. See generally Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). But our courts have long "recognized that the failure to preserve an issue for appeal may be excused when a strong public interest outweighs the need to protect the judicial system from improperly preserved issues." Klein v. Com., State Emps.' Ret. Sys., 555 A.2d 1216, 1220 n.6 (Pa. 1989) (plurality). One such strong public interest is whether a party is entitled to counsel in a civil contempt proceeding. See Turner, 564 U.S. at 438 (resolving right to counsel issue that was raised for the first time on direct appeal in state court). Additionally, a failure by an appellant to object to the trial court's compliance with procedural rules may, under appropriate circumstances, be raised for the first time on appeal. See Bell Fuel Corp. v. Cattolico, 544 A.2d 450, 454 n.3 (Pa. Super. 1988) (refusing to conclude appellant "waived an objection to the trial court following a procedure which was never fully described and which was both unanticipated and incorrect").

         II. Right to Counsel Under the Due Process Clause

         Having resolved that the issue of whether Appellant is entitled to court-appointed counsel is properly before this Court, we discuss Turner. In Turner, the United States Supreme Court addressed "whether the Fourteenth Amendment's Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration." Turner, 564 U.S. at 435.

         In that case, the defendant was subject to a South Carolina family court order requiring him to pay $51.73 per week in child support. Turner, 564 U.S. at 436. The defendant failed to comply, and thus the court held a civil contempt hearing, at which both parties appeared without counsel. Id. at 437. The court advised the defendant that he was $5, 728.76 in arrears and gave him an opportunity to speak, [8] after which the court held him in contempt. Id.

         The trial court in Turner sentenced the defendant to twelve months' imprisonment with a purge condition of having a "zero balance" on or before his release. Turner, 564 U.S. at 437. "The court made no express finding concerning [the defendant's] ability to pay his arrearage . . . . Nor did the judge ask any followup questions or otherwise address the ability-to-pay issue." Id. at 437-48. The court's contempt order did not indicate whether the defendant had the ability to make the support payments. Id. at 438.

         The defendant obtained pro bono counsel and appealed to the South Carolina Supreme Court on the basis that the Federal Constitution "entitled him to counsel at his contempt hearing." Turner, 564 U.S. at 438. After the defendant completed his sentence, the state Supreme Court held that he had no right to counsel. Id.

         The United States Supreme Court granted the defendant's petition for certiorari. First, the Court held that although the defendant had completed his prison sentence, the case was not moot because the issue was capable of repetition while evading review. Turner, 564 U.S. at 439.

         Second, the Court addressed whether the Due Process Clause gave an indigent defendant a right to appointed counsel. Turner, 564 U.S. at 441. The Court initially categorized the contempt proceeding as a civil proceeding. Id. at 444. The Turner Court then examined three factors relevant to formulating the "specific safeguards [that] the Constitution's Due Process Clause requires in order to make a civil proceeding fundamentally fair." Id. (citation omitted). Those factors are "(1) the nature of the private interest that will be affected, (2) the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards, and (3) the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements." Id. at 444-45 (quotation marks, citations, and brackets omitted).

         A. The Private Interest of Freedom from Bodily Restraint and the Risk of Erroneous Deprivation of that Freedom

         The Turner Court noted that the potential for imprisonment weighs heavily in favor of a right to counsel:

The "private interest that will be affected" argues strongly for the right to counsel that [the defendant] advocates. That interest consists of an indigent defendant's loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom from bodily restraint, lies at the core of the liberty protected by the Due Process Clause. And we have made clear that its threatened loss through legal proceedings demands due process protection.
Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key "ability to pay" question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant ...

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