Com. v. Brown, J.

Opinion

J-S20005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN FREDERICK BROWN, JR. : : Appellant : No. 1499 WDA 2021

Appeal from the Judgment of Sentence Entered June 8, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000394-2013

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 17, 2022

Appellant John Frederick Brown, Jr. appeals from the judgment of

sentence imposed after he pled guilty to rape and related offenses. Appellant

argues that the trial court erred by imposing a no-contact provision as to his

son, B.B., and rejecting Appellant’s request to defer payment of his court fines

until after his release from incarceration. We affirm.

The underlying facts and procedural history of this matter are well

known to the parties. Briefly, Appellant was charged with aggravated assault,

rape, and other offenses after he assaulted the victim several times in 2013.

The victim’s three minor children, including Appellant’s son, B.B., were present

during one of the assaults. Appellant subsequently pled guilty, and the trial

court imposed his sentence in 2014. However, following a successful Post J-S20005-22

Conviction Relief Act1 (PCRA) petition in 2020, the trial court vacated

Appellant’s 2014 sentence and granted him a new trial. See Trial Ct. Order,

2/14/20.

On April 6, 2021, the trial court conducted a plea hearing. At that time,

Appellant indicated that he was pleading guilty plea to rape, attempted rape,

indecent assault, and simple assault.2 See N.T. Plea Hr’g, 4/6/21, at 2-7;

Written Guilty Plea Colloquy, 4/6/21, at 1-5; Guilty Plea Agreement, 4/6/21,

at 1-2. In exchange for Appellant’s plea, the Commonwealth agreed to a

negotiated sentence of six and one-half to fourteen years’ incarceration

followed by a consecutive term of six years’ probation. See Guilty Plea

Agreement, 4/6/21, at 1-2.

Before accepting Appellant’s plea, the trial court conducted an on-the-

record oral plea colloquy, during which Appellant confirmed that he committed

the crimes that were described to him by the Commonwealth, including the

fact that “[p]ortions of the physical assault that make up the simple assault

happened in the presence of the children.” N.T. Plea Hr’g at 6-8. Appellant

also executed a written guilty plea colloquy and a guilty plea agreement in

which he confirmed that he understood the terms of his plea, including his

obligation to pay laboratory fees and/or restitution and the no-contact

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 3121(a)(1), 901(a), 3126(a)(2), and 2701(a)(1), respectively.

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provision as to the victim and the witnesses.3 See id.; Written Guilty Plea

Colloquy at 1-5; Guilty Plea Agreement at 1-2.

On June 8, 2021, the trial court imposed the agreed-upon sentence.

N.T. Sentencing Hr’g, 6/8/21, at 15-17. At that time, the trial court reiterated

that Appellant must refrain from contacting the victim or any of the witnesses

involved in the case. See id. at 18, 20-25. In relevant part, the following

exchange occurred:

THE COURT: I want to reiterate for you that you are to have no contact with the victim in this case and you’re not to have any contact with any of the witnesses in this case, specifically, the children that witnessed the crimes that you are alleged to have committed and those to which you’ve pled. Understood?

[Appellant]: Yes.

Id. at 25 (emphasis added). The trial court also granted the Commonwealth’s

request for Appellant to pay $5,456 in laboratory fees. Id. at 19.

Appellant subsequently filed a post-sentence motion4 in which he

requested, among other things, that the trial court defer Appellant’s payment

3 During its statement of the facts underlying Appellant’s plea, the Commonwealth indicated that Appellant had assaulted the victim while in the presence of minor children, including Appellant’s son, B.B. See N.T. Plea Hr’g at 6-7.

4 Appellant did not file a post-sentence motion within ten days of his June 8, 2021 sentence. However, on June 24, 2021, Appellant filed a pro se motion stating that he had been unable to contact his attorney and requesting an extension of time to file a post-sentence motion. After the trial court granted (Footnote Continued Next Page)

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of court fines until six months after his release from prison. See Appellant’s

Post-Sentence Mot., 8/9/21, at 6 (unpaginated). Appellant also asked the

trial court to modify the plea agreement to permit Appellant to have contact

with his son, B.B., a claim that he did not raise at the plea hearing or at

sentencing. Id. at 4 (unpaginated). In support, Appellant argued that the

no-contact provision conflicted with a 2021 post-adoption agreement that

Appellant had signed with B.B.’s mother, who is also the victim in the instant

case. Id. Further, although the plea agreement precluded Appellant from

contacting the victim or witnesses, Appellant argued that B.B. was not

technically a witness because he was only two years old at the time of the

crimes and he did not testify at Appellant’s preliminary hearing or trial. Id. ____________________________________________

Appellant’s request on June 30, 2021, counsel filed a timely post-sentence motion on August 9, 2021.

On appeal, this Court issued a rule to show cause why the appeal should not be quashed, in part because Appellant’s post-sentence motion appeared to be untimely. After Appellant’s counsel filed a response, this Court discharged the rule to show cause and allowed the appeal to proceed. See Order, 3/10/21.

Our review of the record confirms that Appellant filed a pro se motion requesting nunc pro tunc relief before the expiration of the thirty-day appeal period, and while the trial court maintained jurisdiction over Appellant’s case. As such, the court had the authority to grant nunc pro tunc relief based on Appellant’s claim that he had been unable to contact counsel. See Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (stating that where a defendant demonstrates sufficient cause for relief for relief within 30 days of sentencing, “the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc”). Therefore, because the trial court extended the period for Appellant to file post-sentence motions, we conclude that Appellant’s subsequent notice of appeal was timely.

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Therefore, Appellant requested that the trial court modify the sentencing order

to state that the no-contact provision applied “except as expressly provided

for in the post-adoption contact agreement that was adopted as an order by

the Tioga County Court of Common Pleas Court.” Id. (some formatting

altered).

On October 8, 2021, the trial court conducted a post-sentence motion

hearing. At that time, Appellant reiterated his request for the trial court to

defer his payments for court costs until six months after he was released on

parole. N.T. Post-Sentence Mot. Hr’g, 10/8/21, at 16. In response, the

Commonwealth argued that it had “never seen” a trial court defer a

defendant’s payment of court costs, was not aware of any authority permitting

the court to take such action, and believed that Appellant’s request “should

go in front of the state.” Id. at 20-21. The trial court responded that it did

not know whether Appellant’s request was properly before the court and did

not believe that it could direct the Department of Corrections to deviate from

its own policy concerning a defendant’s payment of court costs. Id. at 21,

24. However, the trial court allowed the defense to present testimony from

Appellant in order to develop the record, then directed the parties to submit

briefs addressing the payment issue. Id. at 37.

On November 17, 2021, the trial court issued an order denying

Appellant’s post-sentence motion. Appellant subsequently filed a timely notice

of appeal and a court-ordered Rule 1925(b) statement. The trial court issued

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a Rule 1925(a) opinion incorporating its November 17, 2021 order denying

Appellant’s post-sentence motion.

On appeal, Appellant raises the following issues for review:

1. Was the [trial] court’s total prohibition of [] Appellant’s contact with his son, B.B., the result of a mutual mistake or the result of unfair treatment by the Commonwealth which sought to nullify the court order of another county?

2. Did the [trial] court have the authority to defer [] Appellant’s payment of restitution[5] until six (6) months after the end of his incarceration?

Appellant’s Brief at 6 (some formatting altered).

No-Contact Provision

In his first issue, Appellant argues that the trial court erred by rejecting

his request to clarify the terms of the no-contact provision concerning his son,

B.B. Id. at 15. In support, Appellant contends that the trial court’s sentencing

order “is contrary to the January 20, 2021 Tioga County Court of Common

Pleas [o]rder” which allowed Appellant to have limited contact with B.B. in the

context of a post-adoption contact agreement. Id. at 15. However, Appellant

claims that he is not seeking to modify the terms of his plea agreement, as

the trial court need only “interpret the existing language of its sentencing

order to mean[] that the Appellant shall have no contact whatsoever, either

5 For purposes of clarity, we note that although Appellant references “restitution” in his statement of questions, the record reflects that Appellant was not ordered to pay restitution. Instead, Appellant was ordered to pay court costs, including a lab fee of $5,456. Therefore, we will address the issue concerning Appellant’s payment of court costs, rather than restitution.

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directly or indirectly, with B.B. except as expressly provided for in the post-

adoption contact agreement[.]” Id. at 18 (emphasis in original). Therefore,

Appellant requests that we remand the matter to the trial court to determine

“if its prohibition of any contact with B.B. is justified or, instead, if its total

prohibition of [] Appellant’s future contact with B.B. was the result of mutual

mistake or unfair treatment by the Commonwealth.” Id. at 30.

The Commonwealth responds that Appellant has failed to preserve his

claim that the no-contact provision regarding B.B. “was the result of a mutual

mistake or unfair treatment by the Commonwealth.” Commonwealth’s Brief

at 8. Further, the Commonwealth contends that, even if properly preserved,

the Commonwealth was not a party to Appellant’s agreement with B.B.’s

mother, and the agreement did not preclude the trial court from imposing a

no-contact provision as part of Appellant’s criminal sentence. Id. at 7-9. The

Commonwealth also argues that “Appellant entered into the binding plea

agreement with full knowledge and acceptance of its terms,” and understood

that “his sentence was to include no contact with B.B.” Id. at 11. Therefore,

the Commonwealth agrees with the trial court that Appellant is not entitled to

relief.

Initially, we note that the entry of a guilty plea waives all non-

jurisdictional defects, other than the legality of sentence and the validity of

the plea. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).

In order to be valid, a guilty plea must be knowingly, voluntarily, and

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intelligently entered. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.

Super. 2008).

An appellant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the guilty plea colloquy or file a motion

to withdraw the plea within ten days of sentencing. Commonwealth v.

Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citing Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i)). If an appellant fails to object during the guilty plea

colloquy or file a motion to withdraw the plea, the claim is waived. Id.

Here, the record confirms that Appellant signed a negotiated plea

agreement which stated that he was prohibited from contacting the victim or

any witnesses, which included Appellant’s son. See N.T. Plea Hr’g at 6-7; see

also Guilty Plea Agreement at 1. Appellant did not object to those terms

during the guilty plea colloquy, and he did not file a motion seeking to

withdraw his guilty plea after the plea hearing. Indeed, at the sentencing

hearing, Appellant explicitly confirmed that his plea agreement precluded him

from contacting the victim or witnesses to the crime, which included B.B. See

N.T. Sentencing Hr’g at 25. Finally, although Appellant filed a post-sentence

motion requesting that the trial court modify the terms of his sentence,

nowhere in the motion did Appellant allege that his plea was invalid or that

his sentence was illegal. Therefore, to the extent Appellant’s arguments may

be construed as a challenge to his plea agreement, his claims are waived.

See Eisenberg, 98 A.3d at 1275; Lincoln, 72 A.3d at 609-10.

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In any event, although framed as a request for “clarification” of the trial

court’s sentencing order, Appellant’s requested relief would require

modification of an explicit term of the parties’ plea agreement. The trial court

addressed Appellant’s request for relief as follows:

“If either party to a negotiated plea agreement believed the other side could, at any time following entry of sentence, approach the judge and have the sentence unilaterally altered, neither the Commonwealth nor any defendant would be willing to enter into such an agreement.” Commonwealth v. Coles, 530 A.2d 453, 45[8] (Pa. Super. 1987). “A plea bargain which has been fully carried out in accordance with its terms should not be set aside in the absence of convincing evidence that [defendant] was dealt with indecently or unfairly.” Commonwealth v. Hare, 380 A.2d 330, 333 (Pa. 1977). Here, [Appellant] was fully aware of the terms of the plea agreement prior to entering into it. He is therefore bound by its terms and may not seek to alter them now. To alter the terms of the agreement “would strip the Commonwealth of the ‘benefit of the bargain—would make a sham of the negotiated plea process and would give the defendant a second bite at his sentence.’” See Coles, 530 A.2d 456. For these reasons, the court shall not disturb or alter the terms of the parties’ plea agreement.

Trial Ct. Order & Op., 11/17/21, at 1.

Based on our review of the record, we agree with the trial court that

Appellant’s request would alter the terms of the parties’ plea agreement.

Therefore, for the reasons stated by the trial court, Appellant is not entitled

to relief.

Payment of Court Costs

Appellant also argues that the trial court erred in concluding that it

lacked the authority to defer Appellant’s payments on the $5,456 lab fee until

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six months after his release from prison. Appellant’s Brief at 24. In support,

Appellant notes that a payment deferral would not conflict with his plea

agreement, as the agreement did not provide a timeframe under which

Appellant was required to pay court costs. Id. at 24. Further, Appellant

argues that the trial court has the authority to defer the payment of court

costs under 42 Pa.C.S. § 9728(b)(5)(i) and Pa.R.Crim.P. Rule 706. Id. at 26.

Therefore, Appellant requests that we remand the matter to the trial court for

further proceedings. Id. at 30.

The Commonwealth responds that “[A]ppellant has failed to provide

sufficient support for his assertion that the trial court can order that his

payment of a lab user fee can be deferred.” Commonwealth’s Brief at 14.

Further, the Commonwealth argues that Appellant has failed to prove that he

would be entitled to any deferment, as he did not assert that he was unable

to pay. Id. at 14-15. Therefore, the Commonwealth concludes that Appellant

is not entitled to relief. Id.

Initially, we note that lab fees are a “cost” related to the prosecution of

a criminal case. See 42 Pa.C.S. § 1725.3. “[C]osts are ‘penal sanctions’

arising from a criminal conviction and, therefore, the imposition of costs [is]

part of the judgment of sentence.” Commonwealth v. Garzone, 993 A.2d

1245, 1254 (Pa. Super. 2010) (citation omitted). However, the nature of our

review depends on whether Appellant’s sentencing claim implicates legality or

the discretionary aspects of his sentence.

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It is well settled that a challenge to the legality of a sentence raises a

question of law. Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super.

2013). In reviewing this type of claim, our standard of review is de novo and

our scope of review is plenary. Id. Moreover, “a challenge to the legality of

the sentence can never be waived and may be raised by this Court sua

sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014)

(citation omitted).

In contrast, a defendant does not have an absolute right to pursue a

challenge to the discretionary aspects of a sentence. See Commonwealth

v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc). Further, if a

defendant enters a plea agreement with “a negotiated sentence which is

accepted and imposed by the sentencing court, there is no authority to permit

a challenge to the discretionary aspects of that sentence.” Commonwealth

v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted).

This Court has explained that under Section 9721 of the Sentencing

Code, it is “mandatory for a defendant to pay the costs of prosecution, even

in the absence of a court order imposing those costs.” Commonwealth v.

Lopez, 248 A.3d 589, 594 (Pa. Super. 2021) (en banc) (citing 42 Pa.C.S. §

9721(c.1), 9728(b.2)), aff’d, -- A.3d ---, 27 EAP 2021, 2022 WL 3363051 (Pa.

filed Aug. 16, 2022). Further, trial courts are not required to hold an ability-

to-pay hearing before imposing mandatory court costs on a defendant. See

id. at 590 (stating that “while a trial court has the discretion to hold an ability-

to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such

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a hearing when a defendant faces incarceration for failure to pay court costs

previously imposed on him”).

Section 9728(b)(5) authorizes the Department of Corrections to collect

payments from defendants who are currently incarcerated. 42 Pa.C.S. §

9728(b)(5). However, the Commonwealth Court has explained that “a

sentencing court’s orders govern the Department’s collections from inmate

accounts.” Freemore v. Dep’t of Corrections, 231 A.3d 33, 39 (Pa. Cmwlth.

Ct. 2020) (per curiam).6 Therefore, where the sentencing order contains

“delay language” that expressly defers the payment of court costs until a later

date, the Department is not authorized to make deductions from an inmate’s

prison account. See id; see also DC-ADM 005 Section 3.A.2.a7

(implementing guidelines for the collection of court costs pursuant to 42

Pa.C.S. § 9728(b)(5) and stating that a state correctional facility’s business

manager must review the sentencing order to determine whether it “defers

the payment of those obligations to a later date or event” before collecting

payment).

6Although Commonwealth Court decisions are not binding on this Court, they may provide persuasive authority. See Commonwealth v. Heredia, 97 A.3d 392, 395 n.4 (Pa. Super. 2014).

7 The Department of Corrections has a group of core policies referred to as DC-ADMs. These policies govern the basic operations of state prisons and treatment of its inmates. DOC Policies, https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last visited Sept. 8, 2022).

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Here, Appellant does not challenge the trial court’s authority to impose

court costs or the Department’s authority to deduct payments from his inmate

account. Instead, Appellant claims that the trial court erred in concluding that

it lacked statutory authority to defer his payment of court costs until after he

was released on parole.

Following our review of the relevant statutes and case law, we agree

with Appellant that trial courts have the authority to defer the payment of

court costs. See 42 Pa.C.S. § 9728(b)(5). However, the Sentencing Code

makes clear that although trial courts may implement a payment plan or

consider a defendant’s ability to pay when ordering court costs, neither action

is required at sentencing. See id; see also Lopez, 248 A.2d at 595-96;

Pa.R.Crim.P. 706. Therefore, we conclude that Appellant’s request for a

payment deferral implicates the trial court’s discretionary sentencing powers.

In any event, as noted previously, Appellant entered a guilty plea that

contained a negotiated sentence. As such, Appellant cannot challenge the

discretionary aspects of his sentence on appeal. See Morrison, 173 A.3d at

290. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/17/2022

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