Commonwealth v. Schwartz

418 A.2d 637, 275 Pa. Super. 112, 1980 Pa. Super. LEXIS 2003

• Court: Superior Court of Pennsylvania
• Decided: February 1, 1980
• Docket: 2497
• Status: Published

Opinions

SPAETH, Judge:

We agree with Part I of the dissenting opinion, which holds that any ex parte information received by a judge before sentencing should be disclosed to a defendant so that he may have an opportunity to examine it and dispute its accuracy. We do not agree, however, with Part II of the dissenting opinion. In our opinion the sentence should be vacated and the case remanded for resentencing, for two reasons: 1) it reasonably appears from the record that the sentencing judge relied on the ex parte information; and 2) the judge imposed a $10,000 fine without determining whether appellant was able to pay it.

The dissent correctly cites Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977), as defining how we should review the sentence in this case. In Bethea, the Supreme Court stated:

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

474 Pa. 580, 379 A.2d at 106-107

Having cited Bethea, however, the dissent fails to apply it. After. examining the record, the dissent concludes that “there is ample support for the imposed sentence, which was well within the terms of the accepted plea bargain.” Dissent at 125-126. In Bethea, the Supreme Court did not look to see whether there was “ample support” in the record for the imposed sentence, but rather whether “it reasonably appearfed] from the record that the trial court relied in whole or in part upon such [an impermissible] factor.” 474 Pa. at 580, 379 A.2d at 106-107.

Here, after sentencing appellant, the sentencing judge stated:

t is obvious from the recital of the facts which I have had . . . that you were engaged in the business of drug traffic and this is something that-in fact, the quantities that you were selling and the frequency of the sales make it very apparent to this Court that you were a dealer .

I have made a large fine because I think the enormity of this crime deserves a large fine. You were engaged in the narcotic traffic, and therefore, I feel that just placing you on county probation or giving you a minimal fine is not commensurate with the seriousness of the offense that you have committed.

The dissent says that the judge was justified in making these comments because of the nature and frequency of appellant’s drug sales (eight sales of quaaludes or marijuana within a month and-a-half period). That may well be so, but it does not answer the question of whether it reasonably appears from the record that the judge relied, not only on the evidence of the nature and frequency of appellant’s drug sales-which evidence was properly before him-but also on the information that he had received ex parte-which information was not properly before him.

When the Bethea test is applied to the record before us, it is apparent that the sentence should be vacated. On appellant’s motion for modification of sentence, the sentencing judge conceded that before the sentencing proceeding

[the Court] was informed that the plea bargain was opposed by the prosecuting officers, who felt that the heavy involvement of the Defendant in the drug traffic warranted a penalty more severe than probation.

At this time the Court was also informed that the Defendant was one of the larger narcotic dealers in the State College area, involved in transactions of large sums of money.

On the basis of this information the Court decided to reject the plea bargain, permit the withdrawal of the proposed guilty plea, and have the defendant proceed to trial. However, it appeared that the District Attorney’s office had failed to apply for an appropriate extension of time under Pa.R.Crim.P. 1100, and the 180-day period had elapsed.

Faced with the alternative of permitting an admitted narcotics distributor to go free, or honor an ill-advised plea bargain, the Court chose the latter, and reluctantly accepted the plea bargain.

Slip op. at 1-2. (emphasis added)

Given the tenor of these comments, we think it reasonably appears that in sentencing appellant, the sentencing judge relied in part on the ex parte information supplied him by State Police. This conclusion, which seems to us only common sense, is corroborated by the size of the fine, and the sentencing judge’s comment that a “large” fine was deserved because appellant was “engaged in the narcotic traffic.”

The dissent dismisses the argument that the sentencing judge erred in failing to determine appellant's ability to pay the fine by noting, in footnote 9 of its opinion, that appellant waived a pre-sentence report, “which presumably would have included such information,” and by shifting to appellant’s counsel the burden of “elaborating] on appellant’s financial background.”

We do not understand why counsel should do what the dissent says, when counsel does not know what fine, if any, will be imposed. In any event, as we read the Sentencing Code, the sentencing judge was required to determine, before imposing the fine, that appellant was able to pay it. 18 Pa.C.S.A. § 1326 states:

(c) Exception-The court shall not sentence a defendant to pay a fine unless it appears of record that:

(1) the defendant is or will be able to pay the fine;

(d) Financial resources-In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

This provision parallels Section 2.7(c) of the American Bar Association’s Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), which states:

In determining whether to impose a fine and its amount, the court should consider:

(i) the financial resources of the defendant and the burden that payment of a fine will impose, with due regard to his other obligations;

(ii) the ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court;

The commentary to the A.B.A. Standards points out that to require the sentencing judge to determine the defendant’s ability to pay a fine will result in far more rational sentencing. If it appears that the defendant cannot pay a fine, the judge will have to consider alternative penalties. If the judge does not at the outset determine the defendant’s ability to pay a fine, he will often be forced to imprison him at some later point, when he fails to pay the fine. However, before a defendant may be imprisoned for not paying a fine, he must be given an opportunity to establish that he is unable to pay the fine. Commonwealth ex rel. Parrish v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973); Commonwealth v. Shaeffer 228 Pa.Super. 734, 311 A.2d 361 (1973); Pa.R. Crim.P. 1407(a). If a defendant establishes that he is indigent, he will be allowed to make payments in reasonable installments. 451 Pa. at 434, 304 A.2d at 161. Thus, rather than waiting until the defendant is brought before the court for not paying a fine, it is far more rational to determine the defendant’s ability to pay at the time the fine is imposed.

Here, all the sentencing judge knew about appellant’s financial background was that he had sold $980 worth of drugs to the undercover agents the previous year and was currently working with his father in the construction industry, “bringing home approximately $150 per week.” N.T. at 12, 13 (August 28, 1978, Guilty Plea hearing). This was hardly enough information to make an intelligent finding as to appellant’s ability to pay the fine.

The sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

PRICE, J., files a dissenting opinion.