Com. v. LeBar

• Decision Date: 15 March 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dayton LeBAR, Appellant.
• Court: Pennsylvania Superior Court

860 A.2d 1105

COMMONWEALTH of Pennsylvania, Appellee, v. Dayton LeBAR, Appellant.

Superior Court of Pennsylvania.

Submitted March 15, 2004.

October 20, 2004.

Dayton LeBar, appellant, Pro Se.

Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Before: STEVENS, TAMILIA, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1 Dayton LeBar challenges pro se the trial court's denial of his Motion to Compel Monroe County Clerk of Court (Clerk) and Pennsylvania Department of Corrections (DOC) to Return Monies Collected in Violation of 42 Pa.C.S.A. § 9728. He argues that the absence of any provision in his sentencing order imposing court costs precluded the Department of Corrections from deducting such costs from his inmate account. He also argues that the trial court lacked authority to issue an order putatively imposing, or recognizing the imposition of such costs more than two years after his sentencing order was entered. For the reasons that follow, we affirm in part, reverse in part, and remand. ¶ 2 The relevant facts appear not to be in dispute. On June 13, 2001, LeBar pleaded guilty to Sexual Assault, Endangering the Welfare of Children, and Statutory Sexual Assault. In a contemporaneous sentencing order, the trial court, President Judge Ronald E. Vican, sentenced LeBar to five to ten years' imprisonment for Sexual Assault; five to ten years' imprisonment for Statutory Sexual Assault, sentence to run consecutively to the term of imprisonment for Sexual Assault; and one and a half to five years' imprisonment for Endangering the Welfare of Children, sentence to run concurrently with the other two sentences. Thus, LeBar was sentenced to an aggregate term of ten to twenty years' imprisonment in a state correctional institution, and directed to comply with the registration provisions of Megan's Law.

¶ 3 The only mention of any restitution applicable as a consequence of LeBar's sentence reads as follows, under the statement of the term of imprisonment for Sexual Assault: "[LeBar shall] make restitution to the victim in this offense, if any is required." Sentencing Order, 6/13/01, at 1. The June 13 order made no mention whatsoever of the imposition of any court or prosecution costs or other fees on LeBar.

¶ 4 In August 2001, the Clerk notified DOC that LeBar had been ordered to pay court costs of $466.00 at his June 13 sentencing. That same month, DOC informed LeBar that they would deduct twenty percent of all LeBar's monthly income to satisfy those costs under authority of Act 84, 42 Pa.C.S. § 9728.

¶ 5 On March 7, 2003, LeBar filed a pro se Motion to Cease and Desist Collection of Court Costs, Restitution, and/or Fines. Therein he argued that the lack of authorization of any such collection of costs precluded DOC's action under Act 84 and applicable caselaw. Judge Vican's responsive Order warrants full reproduction, insofar as it wholly concurred with LeBar's assertions, yet denied him relief:

AND NOW, this 1st day of April 2003, after review of Defendant's Pro se Motion to Cease and Desist Collection of Court Costs, Restitution and/or Fines, we make the following determination: the sentencing order dated June 13, 2001 imposes no fines or costs. It does, however, include language that Defendant "make restitution to the victim in this offense, if any is required." The Monroe County Probation Department has informed the court that no restitution is required. Accordingly, we determine that Defendant is not entitled to the relief requested and Defendant's Motion is DENIED.

Order, 4/1/03 (emphasis added). Thus, according to the trial court, LeBar is not "entitled" to relief precisely because the putative order authorizing the deductions from his account does not exist — which, of course, is the basis of LeBar's argument. Thus, in one paragraph, the trial court accepts LeBar's premise (that LeBar never owed any money due to his conviction) but denies his conclusion (that LeBar thus is entitled to restitution of the $466.00 improperly deducted from his personal inmate account).

¶ 6 On April 9, LeBar filed an Inmate Request enclosing a copy of the April 1 Order and his original Sentencing Order, and requesting "that all monies collected from [his] account be returned ... as soon as possible." A staff member replied as follows: "I contacted the Clerk of Courts and the Probation Department Collection Department. They believe your order 4/1/03 stating you do not have fines and costs is in error. They are checking with the Judge to see if it needs corrected [sic]." Inmate's Request to Staff Member, 4/9/03, ¶ 9 (Response, 4/10/03). In response to a follow-up request, the same Staff Member replied "The Court hasn't had enough time yet for a new order or to completely review your case. * * * * As I said before, in talking with the Clerk of Courts, court costs are always your obligation even if it's not stated in the order." Inmate's Request to Staff Member, 4/21/03, ¶ 9 (Response, 4/23/03). Over a month later, evidently after receiving no further reply, LeBar once again inquired as to why, absent a court order authorizing such action, DOC had deducted $466.00 from his account. This time, the same Staff Member responded: "Your questions should be forwarded to inmate accounting. Our office doesn't deal with this." Inmate's Request to Staff Member, 5/28/03, ¶ 9 (Response, 5/30/03). When LeBar contacted Inmate Accounts with the same complaint, another staff member replied that she had talked with "Susan from Monroe county," and continued, "Obviously, you owed the money. Therefore any further questions concerning this issue are to be directed to Monroe County. Refund denied." Inmate's Request to Staff Member, 6/2/03 (Attached Response, 6/3/03). To the same end, we find in the certified record a letter addressed to one George J. Warden, Clerk of Courts for Monroe County, painstakingly setting forth the tortured path LeBar had followed in attempting to reclaim monies that, by the court's own admission in its April 1, 2003 Order, he never owed, and observing that the Clerk of Courts himself lacked authority to impose costs in the first instance or require DOC to collect such costs according to an installment plan. Letter to George J. Warden, addressed 6/5/03, filed with Clerk of Courts Monroe County 6/11/03, at 1-2 (unnumbered). The record contains no indication that Mr. Warden or his office responded to LeBar's inquiry.

¶ 7 On August 1, 2003, LeBar finally returned directly to the Court of Common Pleas of Monroe County and filed his Motion To Compel Monroe County Clerk of Court and Pennsylvania Department of Corrections to Return Monies Collected in Violation of 42 Pa.C.S. § 9728 (Motion to Compel), Judge Vican's denial of which we now find before us. LeBar's Motion to Compel repeated his earlier arguments regarding the lack of an order assessing him any costs with his conviction, Judge Vican's own April 1 Order acknowledging the absence of such order, and DOC's collection of $466.00 notwithstanding this deficiency.

¶ 8 In response to LeBar's Motion to Compel, Judge Vican issued an order that stated, in apparent contradiction of his April 1 Order:

After review of the record and the Clerk of Court Statement of Costs, it appears that the directive to pay costs of proceeding was inadvertently omitted from the Sentencing Order dated June 13, 2001. Inasmuch as the costs are statutory in nature, Defendant's motion seeking return of monies collected is DENIED.

Order, 8/22/03.

¶ 9 LeBar subsequently filed a notice of appeal and the trial court ordered LeBar to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925(b). LeBar complied, raising seven questions directed solely at the various missteps manifest in the above sequence of events. The trial court then filed its Statement Pursuant to Pa.R.A.P.1925(a) (T.C.O., 9/30/03). Once again, the trial court acknowledged the lack of imposition of fines and costs. T.C.O., 9/30/03, ¶ 2. It also noted that the court "did not impose fines; and no restitution was required." T.C.O., 9/30/03, ¶ 4. It then concluded its discussion of LeBar's seven questions with the following assertion:

5. Apparently, the Department of Corrections deducted from Defendant's inmate account certain monies on account of court costs, which are statutory in nature.

6. Inasmuch as the costs are statutory in nature, this court, by Order dated August 22, 2003, denied Defendant's motion seeking return of monies collected.

T.C.O., 9/30/03. As in its August 22 Order, Judge Vican failed to cite any Pennsylvania statute authorizing a Clerk of Courts to seek reimbursement for costs that are not even mentioned in the pertinent sentencing order or any other order of court.

¶ 10 On appeal to this Court from the trial court's denial of his Motion to Compel, LeBar raises the following questions pro se:

1. WAS THE ORDER OF THE COURT OF COMMON PLEAS FOR MONROE COUNTY IN FACT ILLEGAL AS A MATTER OF LAW HAVING MODIFIED THE ORIGINAL SENTENCING ORDER MORE THAN THIRTY DAYS AFTER THE DATE OF THE ORIGINAL SENTENCING ORDER?

2. CAN THE DEPARTMENT OF CORRECTIONS, AS AN ADMINISTRATIVE AGENCY, BE GIVEN AUTHORITY TO DEDUCT MONIES FROM AN INMATE'S ACCOUNT WITHOUT AUTHORIZATION BY THE INMATE OR COURT ORDER?

3. DID THE TRIAL COURT ERR, AS A MATTER OF LAW, BY NOT HOLDING A HEARING ON DEFENDANT'S ABILITY TO PAY FINES, COURT COSTS, OR RESTITUTION, PRIOR TO ENTERING AN ORDER FOR COLLECTION OF SAID COURT COSTS?

4. DID THE CLERK OF COURTS ERR WHEN THEY, SUA-SPONTE, REQUESTED THE DEPARTMENT OF CORRECTIONS TO DEDUCT MONIES FROM DEFENDANT'S ACCOUNT WITHOUT AN ORDER FROM THE PRESIDENT JUDGE?

Brief for Appellant at 6 (immaterial corrections added). Faced with a question of law, our standard of review limits us to determining whether the trial court committed an error of law; our scope of review is plenary. See Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 746 A.2d 1118, 1120 (Pa.Super.199...