SUBMITTED: March 18, 2019
from the Order of the Superior Court at No. 620 MDA 2017
dated November 30, 2017, reconsideration denied February 9,
2018, Reversing the PCRA order of the Lancaster County Court
of Common Pleas, Criminal Division, at Nos.
CP-36-CR-0001443-2016, CP-36-CR-0001496-2016, and
CP-36-CR-0002530-2016 dated March 10, 2017 and remanding.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
Sentencing Code mandates that trial courts "shall not
sentence a defendant to pay a fine unless it appears of
record that the defendant is or will be able to pay" it.
42 Pa.C.S. § 9726(c). The question presented in this
post-conviction appeal is whether the Sentencing Code's
ability-to-pay prerequisite is satisfied when a defendant
agrees to pay a given fine as part of a negotiated guilty
plea agreement. We hold that it is not, and that a
defendant's mere agreement to pay a specific fine does
not constitute evidence that he is or will be able to satisfy
the financial obligation.
appeal involves three separate criminal cases. The first case
began in July 2015, when Christian Lee Ford drove his vehicle
off the road, struck several mailboxes, and crashed into a
fire hydrant. A police officer who responded to the accident
noticed that Ford was unsteady on his feet and was unable to
follow simple instructions. Paramedics transported Ford to
the hospital for further evaluation and medical treatment.
hospital, a police officer told Ford that he was under arrest
for DUI and began reading Ford the required implied consent
warnings. See Pa. Dep't. of Transp. v.
O'Connell, 555 A.2d 873, 874 (Pa. 1989). Before the
officer could finish reading the O'Connell
warnings, however, Ford interjected and told the officer that
the chemical test would likely reveal cocaine, Xanax,
Percocet, and marijuana in his blood. That prediction turned
out to be partially correct; Ford ultimately tested positive
for cocaine, amphetamines, and heroin. As a result, he was
charged with three counts of driving under the influence of a
controlled substance and one count of driving with a
suspended license. Ford subsequently failed to appear for his
preliminary hearing on those charges, and a bench warrant was
issued for his arrest.
events that led to the second of Ford's criminal cases
occurred six months after Ford's failure to appear at his
preliminary hearing on the DUI charges. On that day, two
police officers spotted Ford at a grocery store in Lancaster
County. After confirming that Ford had an active bench
warrant, the officers approached him in the parking lot, but
he fled on foot. When the officers eventually caught Ford, he
continued to resist, and substantial force was required to
effectuate the arrest. A search incident to arrest revealed
that Ford had 159 stamp bags of heroin and a digital scale in
his possession. He was charged with possession with intent to
deliver a controlled substance ("PWID"), possession
of drug paraphernalia, and resisting arrest. Ford posted bail
ten days later and again was released from custody.
weeks after posting bail, Ford went missing. A bail bondsman
who was attempting to locate Ford and return him to the
Lancaster County Prison eventually found Ford and detained
him. When the bondsman noticed that Ford was carrying a stamp
bag of heroin and a syringe, he called the police for
assistance. This brings us to Ford's third and final
criminal case. The police officers who responded to the bail
bondsman's request for assistance arrested Ford and
charged him with possession of a controlled substance and
possession of drug paraphernalia.
23, 2016, Ford entered into a negotiated guilty plea
agreement, which disposed of all three of his criminal cases.
With regard to the charges stemming from the DUI-related
accident, Ford pleaded guilty to three counts of driving
under the influence of a controlled substance and one count
of driving with a suspended license. Ford and the
Commonwealth agreed to a sentence of one to four years'
incarceration and a $1, 500 fine for the DUI charges, and 90
days' incarceration and a $1, 000 fine for driving with a
his second set of criminal charges, Ford pleaded guilty to
PWID, resisting arrest, and possession of drug paraphernalia.
Under the terms of the plea agreement, Ford and the
Commonwealth agreed to a sentence of two to four years'
incarceration and a fine of $100 for PWID, two years of
probation for resisting arrest, and one year of probation for
possession of drug paraphernalia.
in his third case, Ford agreed to plead guilty to possession
of a controlled substance and possession of drug
paraphernalia. Ford and the Commonwealth negotiated a
sentence of three years' probation and a $100 fine for
possession of a controlled substance and one year of
probation for possession of drug paraphernalia. The agreement
stipulated that Ford would serve all periods of incarceration
and probation concurrently and would be responsible for the
costs of prosecution.
trial court accepted Ford's guilty plea and sentenced him
in accordance with the plea agreement. Ford did not file
post-sentence motions or a direct appeal, and his judgment of
sentence became final in late July 2016. Two months after
that, Ford filed a pro se "Petition for Review,
" which the court correctly treated as a timely-filed
Post Conviction Relief Act ("PCRA") petition. The court
then appointed counsel, who filed an amended PCRA petition on
amended petition, Ford alleged that he is indigent, that he
cannot afford to pay the fines and costs associated with his
judgment of sentence, and that his inability to pay those
fines and costs will prevent him from being paroled.
See Amended PCRA Petition, 12/27/2016, at 1. The
gist of Ford's claim is that his sentence is illegal
because the trial court "did not conduct a hearing or
find facts related to [his] ability to pay the fines and
costs" that it imposed. Id.; see 42
Pa.C.S. § 9726(c). Alternatively, Ford argued that plea
counsel was ineffective in "failing to pursue a sentence
modification or direct appeal from the unlawful
sentence." Amended PCRA Petition at 2.
PCRA court issued a Rule 907 notice stating that it intended
to dismiss Ford's petition without a hearing. Ford did
not file a response, and the PCRA court issued an opinion and
order dismissing Ford's petition. In its opinion, the
court first explained that, while defendants are not entitled
to a presentence hearing on their ability to pay the
mandatory costs of prosecution, such a hearing generally is
required when a defendant is sentenced to pay a
fine. See PCRA Court Opinion,
3/10/2017, at 11-12 (citing Commonwealth v. Childs,
63 A.3d 323, 326 (Pa. Super. 2013)). Indeed, Subsection
9726(c) of the Sentencing Code provides that:
The court shall not sentence a defendant to pay a fine unless
it appears of record that:
(1) the defendant is or will be able to pay the fine; and
(2) the fine will not prevent the defendant from making
restitution or reparation to the victim of the crime.
42 Pa.C.S. § 9726(c).
this statutory language, the PCRA court concluded that no
hearing was required in Ford's case because the specific
fines imposed were mandated by statute, meaning that the
court lacked the authority to impose a reduced fine. PCRA
Court Opinion at 12 (concluding that Subsection 9726(c)
"does not . . . apply to the mandatory fine provisions
applicable in this case"); see Commonwealth v.