Com. v. Black, S.

• Court: Superior Court of Pennsylvania
• Decided: June 21, 2021
• Docket: 849 WDA 2019
• Status: Unpublished

Opinion

J-A14016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SECADA DEMINICA BLACK : : Appellant : No. 849 WDA 2019

Appeal from the Judgment of Sentence Entered May 21, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002172-2019

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 21, 2021

Secada Deminica Black appeals from the judgment of sentence entered

following her guilty plea to retail theft. See 18 Pa.C.S.A. § 3929(a)(1). She

raises challenges related to the imposition of costs. We affirm.

Black entered a negotiated guilty plea in May 2019 to one count of retail

theft. The plea bargain included Black’s agreement to pay costs, but the

parties did not itemize the costs or set an amount. See Phoenix Docket Plea

Offer, 5/21/19, at 1. Black asked the court during the plea hearing to waive

the costs on the ground that she was unable to pay, and the court denied the

request. See N.T., 5/21/19, at 2-4. The court sentenced Black pursuant to

the plea deal, imposing 12 months’ probation and ordering her to pay

restitution and costs. However, the sentencing order, like the plea agreement,

did not specify the individual costs or set a total amount for her to pay. Black J-A14016-20

did not request a bill of the costs at that time or object to the imposition of

costs on the basis that she had not yet received a bill of costs.

Black then filed a post-sentence motion, on May 29, 2019, again asking

the court to waive the costs, asserting she was unable to pay. She did not

raise the absence of a bill of costs. The trial court denied the motion that same

day. The following day, the Clerk of Court docketed an Itemized Account of

Fines, Costs, Fees and Restitution. There is no notation on the docket or

anything in the record suggesting that this Itemized Account was provided to

Black.

Black then filed this timely appeal. In her Pennsylvania Rule of Appellate

Procedure 1925(b) statement, Black claimed the court erred in imposing costs

without determining her ability to pay. She also argued certain costs lacked a

statutory basis, challenged the imposition of the costs of probation as an

aggregate number, and claimed the court improperly failed to provide her with

a bill of costs such that she could file objections.

Black’s appellate brief raises the following issues:

1. Did the trial court err by failing to provide Ms. Black with a bill of costs detailing the specific costs, and the amount thereof, that she must pay?

2. Did the trial court err by imposing the total aggregate amount of supervision fees, pursuant to 19 P.S. § 11.1102, at once, rather than allowing them to accrue each month that Ms. Black is on supervision?

3. Did the trial court err by imposing certain court costs even though there is no statute that authorizes imposing such costs?

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4. Did the trial court err by imposing court costs on Ms. Black without considering her financial resources and ability to pay?

Black’s Br. at 2.

We will address Black’s last issue first: that the court erred by imposing

costs on her without considering her financial resources and ability to pay.

Recently, in Commonwealth v. Lopez, 248 A.3d 589, 592 (Pa.Super. 2021)

(en banc), this Court addressed this issue and found that although a

sentencing court has the discretion to hold an ability-to-pay hearing before

imposing costs, a pre-sentence hearing is not mandatory. Rather, an ability-

to-pay hearing is required only where a defendant may be imprisoned for

failure to pay the costs. Id. Accordingly, here, the trial court did not err in

imposing costs without first determining Black’s ability to pay.

Turning to Black’s remaining issues, she argues in her first issue that

the court erred by not providing her “with a detailed bill of costs when it

imposed them at sentencing violates both Pennsylvania law” and “notions of

due process. . . .” Black’s Br. at 9. Black argues that Pennsylvania case law

requires that a defendant receive an itemized bill of costs that outlines the

costs and have an opportunity to file objections. She contends that the

notation of the bill of costs on the docket here was insufficient notification of

the bill of costs. Black claims that, because she was not given adequate notice,

she could not timely file objections. She maintains that the failure to follow

such procedures violated due process. The Montgomery County Public

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Defender’s Office filed an amicus curiae brief, also arguing that a defendant

should be provided notice of the bill of costs prior to sentencing.

Black first challenged the failure to give her a bill of costs in her Pa.R.A.P.

1925(b) statement. By failing to raise the issue in the trial court before she

appealed, she deprived the trial court of the opportunity to address it. She

has thus waived this issue on appeal. Her claim that she did not receive proper

notice of the bill of costs because it was merely noted on the docket does not

avoid waiver. She certainly knew during the plea and sentencing proceeding

that she was going to be ordered to pay costs and that she had not received

a bill of costs. Indeed, she entered into a plea agreement requiring her to pay

costs without specifying the costs she would pay, and she took no steps to

obtain a bill of costs during plea negotiations or at sentencing. She has thus

waived this issue. Pa.R.A.P. 302(a).

In her second and third claims, Black challenges certain specific costs.

She claims that there is no statutory authority for the court technology fee,

the department of record fee (listed twice), the record management fee, and

the use of county fee. She also claims the court erred by imposing a total

projected balance of monthly supervision fees, rather than having the fees

accrue on a monthly basis.

Black waived these challenges for purposes of this appeal. She did not

raise them until her Rule 1925(b) statement. The failure to present these

issues at a time they could be litigated below has resulted in the record being

insufficiently developed for us to conduct appellate review. Although the

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Commonwealth attached to its appellate brief an offer of proof for the bill of

costs, it is not part of the record and has not been subjected to adversarial

litigation. Nor has the trial court had an opportunity to consider it. Regarding

Black’s claim that the bill of costs should not include the total cost of probation,

the record contains no information as to when that cost will be collected, that

is, whether it is listed in the aggregate, but will only come due on a monthly

basis.

We decline to address these claims on an undeveloped record. Because

the trial court has not had an opportunity to hear Black’s challenges to

particular costs and to determine whether the Commonwealth supported such

costs, Black has waived the claims for purposes of this appeal and we cannot

address them at this time. Pa.R.A.P. 302(a); cf. Commonwealth v. Gill, 432

A.2d 1001, 1004 (Pa.Super. 1981) (addressing an appeal from an order

granting and denying objections to bill of costs). Our decision is without

prejudice to Black’s ability to ask the trial court to consider the issues in the

first instance.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/21/2021

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