Commonwealth v. Ford

217 A.3d 824

COMMONWEALTH of Pennsylvania, Appellant

v.Christian Lee FORD, Appellee

No. 46 MAP 2018

Supreme Court of Pennsylvania.

Submitted: March 18, 2019

Decided: September 26, 2019

OPINION

JUSTICE WECHT

The 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.

This 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.

At the 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 , 521 Pa. 242, 555 A.2d 873, 874 (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.¹ Ford subsequently failed to appear for his preliminary hearing on those charges, and a bench warrant was issued for his arrest.

The 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.² Ford posted bail ten days later and again was released from custody.

A few 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.³

On June 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 suspended license.

As for 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.

Lastly, 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.

The 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 Act⁴ ("PCRA") petition. The court then appointed counsel, who filed an amended PCRA petition on Ford's behalf.

In his 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.

The PCRA court issued a Rule 907⁵ 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.⁶ 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).

Despite 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. Gipple , 418 Pa.Super. 119, 613 A.2d 600, 601 n.1 (1992) (holding that Subsection 9726(c) does not apply to mandatory fines).

On appeal to the Superior Court, Ford again argued that his sentence is illegal because the trial court did not inquire into his ability to pay the fines specified in the plea agreement. The panel acknowledged that Ford explicitly agreed to pay the fines at issue when he entered into a negotiated guilty plea. Even so, the panel noted, a claim that "there was no record of the defendant's ability to pay before the sentencing court" constitutes a nonwaivable challenge to the legality of the sentence.⁷ Commonwealth v. Ford , No. 620 MDA 2017, 2017 WL 5943470, at *3 (Pa. Super. Nov. 30, 2017) (citing Commonwealth v. Boyd , 73 A.3d 1269, 1273-74 (Pa. Super. 2013) ). And challenges to the legality of a sentence—even a sentence resulting from a negotiated guilty plea—are cognizable under the PCRA. Id. at *2 ; Commonwealth v. Gentry , 101 A.3d 813, 819 (Pa. Super. 2014) ("[A] criminal defendant cannot agree to an illegal sentence, so the fact that the illegality was a term of his plea bargain is of no legal significance.").

The panel next reviewed the transcript of Ford's guilty plea and sentencing hearing, which revealed that "no inquiry was made, and no record existed, as to [Ford's] ability to pay the agreed-upon fines." Id. at *3. Although a presentence hearing on the ability to pay a mandatory fine is not required, see Gipple , 613 A.2d at 601 n.1, the intermediate court disagreed with the PCRA court's suggestion that all of Ford's fines were mandated by statute.

Ford's plea agreement included four fines: $1,500 for driving under the influence of a controlled substance, $1,000 for driving while suspended, $100 for PWID, and $100 for simple possession. Given that Ford had a prior DUI conviction, the $1,500 fine that he received indeed was mandatory. See 75 Pa.C.S. § 3804(c)(2)(ii). Thus, the Superior Court agreed with the PCRA court's conclusion that Ford was not entitled to a hearing regarding his ability to pay the DUI fine.

In contrast, the three other fines that the trial court imposed were not mandatory. Two of the offenses for which Ford received fines, simple possession and PWID, did not subject him to a mandatory fine at all. And the remaining offense, driving while suspended, carries a mandatory fine that is substantially less than the one Ford actually received.⁸ The Superior Court therefore concluded that Ford's three non-mandatory fines were illegal, given that it does not "appear of record" that he is or will be able to pay them. For this reason, the panel reversed the PCRA court's order, vacated...