Commonwealth v. Hernandez

• Decision Date: 12 January 2007
• Citation: 917 A.2d 332
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Juan Carlos HERNANDEZ, Appellant.
• Court: Pennsylvania Superior Court

917 A.2d 332

COMMONWEALTH of Pennsylvania, Appellee v.Juan Carlos HERNANDEZ, Appellant.

Superior Court of Pennsylvania.

Submitted October 30, 2006.

Filed January 12, 2007.

Amy J. Johnston, Jason R. Lewis, Franklin, for appellant.

Schellart H. Los, Assistant District Attorney, Franklin, for Commonwealth, appellee.

BEFORE: ORIE MELVIN, McCAFFERY, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1Juan Carlos Hernandez appeals from the judgment of sentence entered upon his convictions of criminal trespass and simple assault.See18 Pa.C.S. §§ 3503(a),2701(a), respectively.Hernandez contends that since he is indigent, the trial court violated his due process and equal protection rights when it denied his post-sentence motion to modify costs and charged him with the costs of the prosecution's mental health expert.Specifically, Hernandez asserts that 16 P.S. section 1403, the statute that requires a convicted defendant to pay the costs of prosecution, is constitutionally infirm under Fuller v. Oregon,417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642(1974).After careful review, we conclude that 16 P.S. section 1403 passes constitutional muster, because the procedural safeguards of Pa.R.Crim.P. 706 ensure that an indigent defendant will be afforded an opportunity to prove his financial inability to pay the costs of prosecution before being committed to prison.Accordingly, we affirm the trial court's order.

¶ 2 On June 14, 2005, a jury found Hernandez "guilty but mentally ill" for criminal trespass and simple assault, after hearing extensive testimony from Hernandez's expert, Dr. Charles Romero, and the Commonwealth's expert, Dr. Robert Wettstein, regarding Hernandez's mental condition.See18 Pa.C.S. § 314(Guilty but mentally ill).On August 26, 2005, the trial court conducted a hearing pursuant to 42 Pa. C.S. section 9727 and determined that at the time of sentencing, Hernandez was "severely mentally disabled and in need of treatment."Trial Court Opinion (T.C.O.), 12/27/05, at 1.The trial court sentenced Hernandez to nine years of probation, total fines of $425, and all the costs of prosecution under 16 P.S. section 1403.When the Clerk of Courts assessed the costs of prosecution to Hernandez, the clerk included a $7,008.50 bill from the Commonwealth for the services of its mental health expert, Dr. Wettstein.On September 2, 2005, Hernandez filed a post-sentence motion seeking to dismiss the costs of the Commonwealth's expert on the ground that the trial court failed to make a determination of his ability to pay the costs of prosecution.In his motion, Hernandez argued that 16 P.S. section 1403, which allows for the expenses incurred by the district attorney to be part of the prosecution costs, is unconstitutional under Fuller.On December 22, 2005, the trial court denied Hernandez's post-sentence motion, charged him with the costs of the Commonwealth's mental health expert, and declared 16 P.S. section 1403 constitutional.

¶ 3 Hernandez appeals to this Court, raising the following question for our review:

1.Did the trial court err in denying the Appellant's post sentence motion and charging him with the costs of the prosecution's mental health expert?

Brief for Appellantat 4.

¶ 4 When an appellant challenges the constitutionality of a statute, he or she presents this Court with a question of law.SeeCommonwealth v. Means,565 Pa. 309, 773 A.2d 143, 145(2001).Our consideration of questions of law is plenary.Seeid.Moreover,

there is a strong presumption in the law that legislative enactments do not violate the constitution. . . .[T]here is a heavy burden of persuasion upon one who challenges the constitutionality of a statute.As a matter of statutory construction, we presume the "General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth."A statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of finding constitutionality.

Commonwealth v. Forbes,867 A.2d 1268, 1276-77(Pa.Super.2005)(citation omitted).

¶ 5The statute at issue in this case, 16 P.S. section 1403, states:

All necessary expenses incurred by the district attorney or his assistants or any office directed by him in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, upon approval thereof by the district attorney and the court, shall be paid by the county from the general funds of the county.In any case where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant.

16 P.S. § 1403.

¶ 6 In support of his sole question on appeal, Hernandez asserts that 16 P.S. section 1403 is inadequate to protect his due process and equal protection rights.Brief for Appellantat 8.Particularly, Hernandez claims that the statute is unconstitutional under Fuller, because it does not require the sentencing court to take into account whether a defendant has the ability to pay the costs of prosecution.Brief for Appellantat 7-9.In Fuller,the Supreme Court of the United States considered whether an Oregon statute could constitutionally require a convicted defendant"to repay to the [s]tate the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceeding[,] but subsequently acquires the means to bear the costs of his legal defense."417 U.S. at 41, 94 S.Ct. 2116.The Court noted that the Oregon statute required the trial court to consider the defendant's ability to pay his court-appointed attorney costs at three different points in the process.First, the statute mandated that the court decide whether the defendant"is or will be able to pay" the fees at sentencing, taking into account "the financial resources of the defendant and the nature of the burden that payments of costs will impose."Id. at 45, 94 S.Ct. 2116(citation omitted).Second, if the court determined that a defendant is or will be able to pay costs, the defendant could later petition the court for remission of the fee obligation at any point after sentencing on the ground that payment "will impose manifest hardship on the defendant or his immediate family[.]"Id. at 45-46, 94 S.Ct. 2116.Third, if a defendant was ordered to pay costs and then failed to make payment, the defendant was entitled to a hearing and could avoid imprisonment or a finding of contempt, by demonstrating that "his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment[.]"Id. at 46, 94 S.Ct. 2116(citation omitted).Ultimately, the Supreme Court of the United States concluded that these features of the Oregon statute rendered it constitutional under the equal protection clause and decided that the statute did not "chill"the defendant's exercise of his sixth amendment right to counsel.Seeid. at 50, 54, 94 S.Ct. 2116.

¶ 7 In Fuller,the Supreme Court of the United States did not expressly rule that in order to be constitutional, a state's recoupment statute must provide for an assessment of the defendant's ability to make payment at sentencing, after sentencing, and before imprisonment.The Court, however, emphasized that Oregon's statute"is tailored to impose an obligation to pay only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship."Id. at 54, 94 S.Ct. 2116.As the Court stated:

[T]he recoupment statute is quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation.Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no "manifest hardship" will result.

Id. at 46, 94 S.Ct. 2116.At a minimum, then, Fuller requires a procedural safeguard that is designed to protect defendants from commitment if they are unable to repay to the state their court-appointed attorney's costs.See, e.g, Alexander v. Johnson,742 F.2d 117, 124(4th Cir.1984);Olson v. James,603 F.2d 150, 155(10th Cir.1979);United States v. Bracewell,569 F.2d 1194, 1199-1200(2d Cir.1978)(finding that the district court was required under Fuller to conduct an appropriate inquiry into the defendant's financial position).

¶ 8 In this case, Hernandez argues that he currently "does not have the capacity" to repay the prosecution's mental health expert's fees.Brief for Appellantat 8.Fuller mandates that 16 P.S. section 1403 contain a procedural device that ensures Hernandez will not be imprisoned if he is financially unable to pay these costs.SeeOhree v. Commonwealth,26 Va.App. 299, 494 S.E.2d 484, 490(1998)(stating that Fuller's doctrine is not limited to court-appointed attorney's fees, but applies to all "other costs of prosecution.").On its face, 16 P.S. section 1403 does not possess any of Fuller's procedural protections, and a plain reading of the statute suggests that it is mandatory that the defendant repay the expenses incurred by the district attorney.See16 P.S. section 1403(". . . the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant.").Although 16 P.S. section 1403 does not expressly include any provisions providing an indigent defendant with an inquiry into his/her ability to pay, this does not mean that ...