from the Order Entered April 25, 2017 In the Court of Common
Pleas of Lebanon County Criminal Division at No(s):
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.
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.
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
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.
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.
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." 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.
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
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,
[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
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
[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
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
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.
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,
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. The second
sentence of the court's order instructed the clerk of
courts to transmit the record to this Court. Id.
raises the following issues, which we have reordered as
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
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
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
Brief at 5 (issues reordered to facilitate
Appellant's Right to Counsel
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. Appellant's Brief at 19. Instead,
Appellant asserts, he has right to counsel under the Due
Process Clause of the Fourteenth Amendment. 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.
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. 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.
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
Right to Counsel Under the Due Process Clause
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.
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,  after which the court held him in
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.
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.
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.
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
The Private Interest of Freedom from Bodily Restraint and
the Risk of Erroneous Deprivation of that Freedom
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