Opinion
393 MDA 2021 394 MDA 2021 395 MDA 2021 396 MDA 2021 397 MDA 2021 J-A05008-22
04-08-2022
COMMONWEALTH OF PENNSYLVANIA v. NZINGA M. CALLENDAR Appellant COMMONWEALTH OF PENNSYLVANIA v. NZINGA MOLIKA CALLENDAR Appellant COMMONWEALTH OF PENNSYLVANIA v. NZINGA M. CALLENDAR Appellant COMMONWEALTH OF PENNSYLVANIA v. NZINGA M. CALLENDAR COMMONWEALTH OF PENNSYLVANIA v. NZINGA M. CALLENDAR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 11, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-SA-0000047-2017, CP-40-SA-0000214-2019, CP-40-CR-0003591-2015, CP-40-CR-0004399-2015, CP-40-CR-0002353-2017
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
OLSON, J.
Appellant, Nzinga M. Callendar, appeals from the order entered on March 11, 2021, directing Appellant to continue payments of $60.00 per month towards fines, costs, and restitution imposed after the imposition of judgments of sentence at multiple trial court dockets. We affirm.
The trial court summarized the facts and procedural history of this case as follows:
This matter arises from an ability to pay hearing held in connection with fines, costs, and restitution owed by [Appellant] on five separate cases. At the time of the hearing, [Appellant] owed a total of $6,397.68.
The ability to pay hearing was held on March 11, 2021. At the time of the hearing, a Luzerne County Probation Officer testified that [Appellant] had made one payment of $5.20 since she was placed on a payment plan of $60.00 per month in 2019. [Appellant] had a history of missing payments and she answered "NA" to all questions on a financial evaluation she completed.
[Appellant] testified at the hearing. Her testimony was confusing and incoherent. She failed to establish an inability to make monthly payments to probation.
At the conclusion of the hearing, [Appellant] was ordered to pay $60.00 per month with her first payment due within 60 days. [Appellant] complied with the order by making a payment of $60.00 on March 24, 2021. On March 25, 2021, a notice of appeal was filed [by counsel for Appellant] on all five cases. Orders were then issued by [the trial c]ourt on March 31, 2021 which required that a concise statement of [errors] complained of on appeal pursuant to Pa.R.A.P. 1925(b) be filed by [Appellant] within [21] days. Counsel complied with the orders by filing a concise statement on April 19, 2021. [The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on May 18, 2021.]Trial Court Opinion, 5/18/2021, at *1 (unpaginated).
In October 2020, the Commonwealth filed a petition requesting a hearing to determine Appellant's ability to pay and whether she should be held in indirect criminal contempt.
Appellant's five separate notices of appeal complied with the requirements of our procedural rules and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which requires appellants to file separate notices for each trial court docket subject to an appeal. Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) ("Because Johnson appealed from four docket numbers and filed four notices of appeal, Johnson has complied with Walker. The fact that each notice of appeal listed all four docket numbers does not invalidate his notices of appeal, and we decline to quash his appeals."). This Court consolidated the appeals sua sponte by order entered on May 5, 2021.
On appeal, Appellant presents the following issue for our review:
1. Whether the [trial c]ourt abused its discretion in finding that Appellant had the financial ability to pay an increased monthly amount on her outstanding court fines and fees despite her uncontested testimony that she had no financial resources, had been declared indigent by the court and was unable to obtain gainful employment due to a lack of childcare, all culminating as a result of the global COVID-19 pandemic[?]Appellant's Brief at 6.
In sum, Appellant asserts:
Primarily, this [] Court should note that the only testimony regarding Appellant's financial situation came from [] Appellant herself. Appellant has been declared indigent multiple times, and yet, each time, was assigned new costs and fees. These costs and fees continued to build up, while it became more and more difficult to provide for her children and keep up with her payments on these fines. The sentencing court in this matter elicited information regarding Appellant as to her financial resources, but it did not inquire as to the financial burden that it would place upon her as a single mother. The sentencing court further did not inquire, nor did the Commonwealth offer, any indication as to whether Appellant's failure to pay was willful. Conversely, Appellant did provide testimony herself that she was simply unable to make payments on these fees, especially during COVID. She also testified that she was behind on other bills because she could not obtain steady employment during the pandemic.
Appellant was not simply disregarding her payment plan to the [c]ourt on her fines and costs. She informed the [trial c]ourt that she could not work due to childcare, even indicating that she tried to work from home but could not keep that employment, as she was fired because of the noise her three young children made in the background. Upon this testimony, the court noted that Appellant did indeed have an income, as she received a single welfare payment on behalf of one out of three of her young children. The [trial c]ourt also believed Appellant would receive stimulus payments due to her three young children and the inference was clear - that she should make payments with these funds. Aside from the fact that Appellant would not receive stimulus payments for all of her children due to Children and
Youth[ Services'] involvement, the notion that this money, which was meant to be utilized to care for and feed her children, should be utilized to pay her court fines is contemptable. It is clear that the sentencing court in this matter did not consider the financial burden these payments would be for [] Appellant and, therefore, it abused its discretion in this matter. When the sentencing court officially increased Appellant's payment plan from $25.00 per month to $60.00 per month, despite testimony that she could not handle the $25.00 monthly payments, it abused its discretion. When the sentencing court ordered that Appellant make these increased monthly payments or face incarceration, it abused its discretion.
The Commonwealth[, ] at the ability to pay hearing[, ] did not indicate that Appellant could make these higher payments, or in fact, any payments. The Commonwealth did not present evidence that Appellant in fact was able to find full-time employment, nor did it [show] that Appellant was refusing to attempt to find work. All these facts were, lest one forgets, amidst the deadly COVID-19 pandemic. The Commonwealth did present [evidence] that the Probation Department [sent] a form in the mail for Appellant to complete regarding her financial status and that the form was returned mostly filled in as "not applicable." This lack of information did not indicate that Appellant was financially solvent; rather it indicated that Appellant had no income, and that her bills were in forbearance because of the COVID-19 pandemic.Appellant's Brief at 15-17. Accordingly, Appellant requests "a forbearance on her monthly payments until she is in a more stable financial condition or [to] allow her to continue her lower monthly payment plan[.]" Id. at 20.
We review a trial court's ability to pay decision for an abuse of discretion. See Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. 2011) (a trial court abuses its discretion by imposing a monetary purge condition if the contemnor does not have the present ability to pay the purge amount).
Citing 42 Pa.C.S.A § 9730 and Pa.R.Crim.P. 706, this Court has previously determined:
Section 9730 [] sets forth the procedures for a failure to pay:
(b) Procedures regarding default.-
(1) If a defendant defaults in the payment of a fine, court costs or restitution after imposition of sentence, the issuing authority or a senior judge or senior magisterial district judge appointed by the president judge for the purposes of this section may conduct a hearing to determine whether the defendant is financially able to pay.
(2) If the issuing authority, senior judge or senior magisterial district judge determines that the defendant is financially able to pay the fine or costs, the issuing authority, senior judge or senior magisterial district judge may turn the delinquent account over to a private collection agency or impose imprisonment for nonpayment, as provided by law.
(3) If the issuing authority, senior judge or senior magisterial district judge determines that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the issuing authority, senior judge or senior magisterial district judge may provide for payment in installments....
(4) A decision of the issuing authority, senior judge or senior magisterial district judge under paragraph (2) or (3) is subject to [] to appellate review[.]42 Pa.C.S.A § 9730(b)(1)-(3).
* * *
Before an offender can be confined solely for nonpayment of financial obligations he or she must be given an opportunity to establish inability to pay. If the offender establishes indigence, he or she will be allowed to make payments in reasonable installments. 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.A. § 9730(b)(1). If the fines and costs court determines the offender is able to pay fines or costs, it may turn the delinquent account over to a private
collection agency or impose imprisonment for nonpayment, as provided by law. 42 Pa.C.S.A. § 9730(b)(2).
Imprisonment for nonpayment of financial obligations may also be imposed on a finding of contempt for failure to pay a fine, 42 Pa.C.S.A. § 9772, on a finding of contempt for failure to make restitution, 18 Pa.C.S.A. § 1106, or on a finding of violation of a specific condition of supervision. 42 Pa.C.S.A. § 9773. Each proceeding requires a hearing.
If ... failure to pay sentenced financial obligations exposes an offender to initial confinement, additional confinement or increased conditions of supervision, a hearing is warranted. Stated differently, if an offender is notified that he or she is charged with contempt or with probation or parole violations as a result of failure to pay fines, costs or restitution, the offender should be afforded a hearing.
Pennsylvania Criminal Rule of Procedure 706 similarly bars imprisonment unless the court conducts a hearing and ascertains that the defendant has the financial ability to pay:
(A) A court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.
(B) When the court determines, after hearing, that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the court may provide for payment of the fines or costs in such installments and over such period of time as it deems to be just and practicable, taking into account the financial resources of the defendant and the nature of the burden its payments will impose ....
(C) The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of the defendant's financial means, including the defendant's ability to make restitution or reparations.
[(D) In cases in which the court has ordered payment of a fine or costs in installments, the defendant may request a rehearing on the payment schedule when the defendant is in default of a payment or when the defendant advises the court that such default is imminent. At such hearing, the
burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule. Thereupon the court may extend or accelerate the payment schedule or leave it unaltered, as the court finds to be just and practicable under the circumstances of record. When there has been default and the court finds the defendant is not indigent, the court may impose imprisonment as provided by law for nonpayment.]
Pa.R.Crim.P. 706.Commonwealth v. Smetana, 191 A.3d 867, 871-872 (Pa. Super. 2018) (case citations and footnotes omitted).
Initially, we note that although Appellant suggests that the trial court unilaterally raised her established monthly payment for restitution, costs, and fees from $25.00 to $60.00, the record belies such claim. Appellant concedes that, after a previous ability to pay hearing in 2019, the trial court set her monthly payments at $60.00. See Appellant's Brief at 10; see also Trial Court Opinion, 5/18/2021, at *2 (unpaginated). Appellant did not appeal from that 2019 decision or otherwise challenge the trial court's determination at the time the payment was established. Accordingly, we reject Appellant's claim that the trial court abused its discretion by raising the monthly amount owed.
In this case, there is no dispute that, as of the time of the ability to pay hearing from which this appeal arose, Appellant owed a balance of $6,397.68. N.T., 3/11/2021, at 2. Since 2019, Appellant has made only one payment of $5.20. Id. Moreover, citing Pa.R.Crim.P. 706(D), the trial court concluded that Appellant "was on a payment plan of $60.00 per month since 2019" and she failed to satisfy "[her] burden of proving that her financial condition had deteriorated to the extent that she is without means to meet the [$60.00 per month] payment schedule." Trial Court Opinion, 5/18/2021, at *2 (unpaginated). Upon review of the record, we discern no abuse of discretion.
Appellant testified that she received $200.00 per month for one child. N.T., 3/11/2021, at 4. She claimed that although she was behind on her rent, she did not have any other expenses. Id. Although Appellant asserted that she was unable to maintain employment because she lacked childcare, she did confirm that she obtained employment at Amazon where she worked from home. Id. at 6. While she claimed that the job was difficult with the children at home, Appellant testified that she could have continued working for Amazon. Id. There was no indication that Appellant had been fired from that job. Id. Appellant is also taking classes at Lackawanna College. Id.
Moreover, Appellant testified as follows:
[…] I'm usually a dancer/stripper/bartender whatever you want to call it. I don't come to the - I'm always able to pay. There's nothing wrong with me. I take responsibility for the things that - if I got to pay, I got to pay.Id. at 10.
As set forth above, Rule 706(D) provides that a criminal defendant is entitled to a hearing before incarceration for failing to pay court ordered restitution, costs, and fees. "[T]he burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule[.]" Pa.R.Crim.P. 706(D). Here, Appellant was given a hearing on her ability to pay, and she bore the burden of proving she was without means to meet the payment schedule. Upon review of the certified record, we conclude that Appellant failed to meet her burden to prove that she was without means to meet the payment schedule. Moreover, even if a defendant meets her burden of proof at an ability to pay hearing, Rule 706(D) only authorizes the court to "extend or accelerate the payment schedule or leave it unaltered[.]" Id. Rule 706(D) provides no grounds for the suspension or waiver of fines and costs. The trial court ordered that Appellant remain on the same payment plan of $60.00 per month as established at a prior ability to pay proceeding in 2019. In addition, the trial court gave Appellant two months to make the first full payment towards her plan or face incarceration. Based upon our standard of review, applicable law, and review of the certified record, we discern no abuse of discretion by the trial court in finding Appellant had the ability to pay the ordered restitution, costs, and fees.
The trial court noted that Appellant complied with its order "by making a payment of $60.00 on March 24, 2021." Trial Court Opinion, 5/18/2021, at *1, n.1 (unpaginated).
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.