Com. v. Keeno, S.

• Court: Superior Court of Pennsylvania
• Decided: May 21, 2020
• Docket: 1763 WDA 2019
• Status: Unpublished

Opinion

J-A12014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN JAMES KEENO : : Appellant : No. 1763 WDA 2019

Appeal from the Judgment of Sentence Entered November 6, 2019 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000682-2017

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MAY 21, 2020

Appellant, Steven James Keeno, appeals from the judgment of

sentence of the remainder of his original sentence of four to sixty months of

confinement imposed after the revocation of his parole for failure to pay

court-ordered costs, fees, and fines, inter alia. Appellant challenges whether

the trial court erred by revoking his parole without making a finding of fact

that he had the financial ability to pay these obligations. As we agree that

the trial court erred, we vacate the judgment of sentence below and remand

for a new hearing at which the trial court must render appropriate findings

on Appellant’s financial ability to pay outstanding costs, fees, and fines.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A12014-20

On October 5, 2017, Appellant pleaded guilty to driving under the

influence (“DUI”) of a controlled substance. 1 On November 21, 2017, he

was sentenced to four to sixty months of confinement and ordered to pay

costs, fees, and fines. He was paroled on December 28, 2017.

On November 6, 2019, the trial court held a violation of parole

hearing. Appellant “apparently admitted . . . methamphetamine use after he

was advised that he had tested positive for that substance” and “was not

making an effort to report to the Adult Probation/Parole Department.” Trial

Court Opinion, dated December 18, 2019, at 2. “Finally, he admitted the

technical violation that he still owed a balance of $2,576.00 for fines, costs

and related fees”; no evidence was presented as to Appellant’s ability to pay

his financial obligations. Id. “Based on all of that, th[e trial c]ourt

concluded that his technical violations warranted revocation of his parole[.]”

Id.

1 75 Pa.C.S. § 3802(d)(1)(iii) (metabolite of a substance). Appellant also pleaded guilty to and was sentenced for driving while operating privilege is suspended or revoked (“DWOPS”). Id. at § 1543(b)(1). The sentencing order explicitly stated that his 90-day sentence of confinement for DWOPS was to be completed before his sentence for DUI began. Accordingly, Appellant’s current judgment of sentence following the revocation of his parole arises from his DUI conviction only.

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Appellant did not file any post-sentence motions. On November 25,

2019, Appellant filed this timely direct appeal.2

Appellant presents the following issue for our review:

Did the trial court err as a matter of law when it revoked Appellant’s parole and recommitted him to total confinement, under circumstances where parole remained a viable means of rehabilitating Appellant and deterring future antisocial conduct; and did the trial court abuse its discretion in its factual findings at Appellant’s [revocation of parole] hearing by giving unfair, undue weight to the unsworn testimony of the probation officer who failed to provide sufficient evidence to contradict Appellant’s sworn testimony?

Appellant’s Brief at 4.

Preliminarily, we note that the Commonwealth has requested that this

Court dismiss the current appeal, “because the issue regarding the

discretionary aspects of [Appellant’s] sentence was not properly preserved

at sentencing or in a motion to reconsider and modify sentence.”

Commonwealth’s Brief at 5. However --

Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence. . . . Therefore, the purposes of a court’s parole-revocation hearing—the revocation court’s tasks—are to determine whether the parolee violated parole and, if so, whether parole remains a viable means of rehabilitating the defendant and deterring future antisocial conduct, or whether revocation, and thus recommitment, are in order. . . . Following parole revocation and recommitment, the proper issue on appeal is whether the revocation court erred, as ____________________________________________

2 Appellant filed his statement of errors complained of on appeal on December 12, 2019. The trial court entered its opinion on December 18, 2019.

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a matter of law, in deciding to revoke parole and, therefore, to recommit the defendant to confinement. Accordingly, an appeal of a parole revocation is not an appeal of the discretionary aspects of sentence.

Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(citation omitted) (emphasis added). As Appellant’s appeal of his parole

revocation was not an appeal of the discretionary aspects of his sentence, he

did not need to engage in the multi-part procedure that would have been

required to preserve a challenge to the discretionary aspects of his sentence.

See Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super.

2018) (citing Pa.R.A.P. 902 and 903; Pa.R.Crim.P. 720; Pa.R.A.P. 2119(f);

42 Pa.C.S. § 9781(b)).

Turning to Appellant’s arguments, he contends that “the

Commonwealth has failed to show that parole does not remain a viable

means of rehabilitating him and deterring future antisocial conduct.”

Appellant’s Brief at 7. He continues that this Court should order a new

parole revocation hearing, because the trial court “did not inquire into [his]

ability to pay, the reasons for his failure to pay, [and] whether his failure to

pay was willful[.]” Id. at 7-8.

Before an offender can be confined . . . for nonpayment of financial obligations he or she must be given an opportunity to establish inability to pay. . . . Thus, if an offender defaults in the payment of a fine or court costs after imposition of sentence, the fines and costs court may conduct a hearing to ascertain information regarding an offender’s financial resources. 42 Pa.C.S. § 9730(b)(1). . . . [I]f an offender is notified that he or she is charged with . . . parole violations as a result of failure to pay fines, costs or restitution, the offender should be afforded a hearing.

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Commonwealth v. Diaz, 191 A.3d 850, 865 (Pa. Super. 2018) (emphasis

omitted) (some citations omitted).

Accordingly, the trial court in the current action erred by not giving

Appellant an opportunity to establish his inability to pay his court-ordered

financial obligations. Id. Ergo, we vacate Appellant’s judgment of sentence

and remand for a new hearing at which the trial court must render

appropriate findings on Appellant’s financial ability to pay outstanding costs,

fees, and fines.

Furthermore, Appellant’s nonpayment of financial obligations was one

of three reasons articulated by the trial court for revoking his parole. Trial

Court Opinion, dated December 18, 2019, at 2. Consequently, after the trial

court determines whether Appellant was able or unable to pay his financial

obligations, it must then re-evaluate its decision to revoke Appellant’s parole

– e.g., if the court concludes that Appellant did not have sufficient financial

resources, it must then analyze whether the other two violations that it

found were enough in combination to support revocation of Appellant’s

parole.

While we would normally include a date by which the hearing must

occur, we are reluctant to issue a specific timeline given the coronavirus

disease 2019 (“COVID-19”) pandemic. Instead, we relinquish jurisdiction at

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this time, and we direct the court and the parties to comply with the

standard timing requirements as much as possible.3

Judgment of sentence vacated. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/21/2020

3 Having vacated the judgment of sentence on this argument, Appellant’s Brief at 7-8, we need not address his remaining arguments, as they could become moot depending on the outcome of the hearing on remand. See Commonwealth v. Sodomsky, 137 A.3d 620, 629 (Pa. Super. 2016).

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