Opinion
J-A17039-18 No. 1063 WDA 2017
09-20-2018
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM LEE ETTISON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 22, 2017 in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0000072-1995, CP-25-CR-0000112-2016, CP-25-CR-0000668-1996, CP-25-CR-0000687-1995, CP-25-CR-0000865-2010, CP-25-CR-0000993-2016, CP-25-CR-0001588-1993, CP-25-CR-0001707-2010, CP-25-CR-0001709-2010, CP-25-MD-0000024-2016, CP-25-MD-0000113-2016, CP-25-MD-0000712-2015, CP-25-SA-0000098-2006, CP-25-SA-0000098-2010, CP-25-SA-0000133-2009 BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
William Lee Ettison ("Ettison") appeals from the Order denying his Petition to Suspend Payment of Costs. We affirm.
In its Opinion, the trial court described the relevant underlying history as follows:
[Ettison] has been convicted of various crimes in every decade since the 1990s. He has been sentenced to pay restitution, fines and costs since 1991. His payment history consists of sporadic, minimal payments. [Ettison] has been in chronic arrears; he still owes restitution, fines and costs from the 1990s.
The procedural genesis of this appeal is [Ettison's] Petition to Suspend Payment of Costs[,] filed on May 19, 2017, seeking to suspend his obligation to pay restitution, fines and costs based on
his alleged inability to pay. An evidentiary hearing was held on June 22, 2017. The result was a determination [that Ettison] had the ability to pay $50 per month toward the $12,874.28 he owed to victims, etc.[,] on numerous dockets. This appeal followed.Trial Court Opinion, 9/29/11, at 1-2. The trial court's Opinion also details Ettison's financial obligations, which were imposed at nineteen separate docket numbers. See id. at 4-6.
We note that Ettison properly filed a Concise Statement of matters complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
In this appeal, Ettison presents the following issues for our review:
1. Did the trial court abuse its discretion by not temporarily suspending [] Ettison's obligation to make payment on his fines, costs, and restitution[,] in light of the uncontested evidence showing that he is indigent, disabled, and unable to work?Brief for Appellant at 4.
2. Did the trial court abuse its discretion by placing [] Ettison on a $50 per month payment plan[,] when the uncontested evidence showed that he is indigent, disabled, unable to work and lacks any financial resources that would permit him to make those payments?
3. Did the trial court further abuse its discretion by placing [] Ettison on that $50 per month payment plan and requiring the first payment one week after the entry of the order, without giving him time to search for work?
Initially, we observe that in his Rule 1925(b) Concise Statement, Ettison preserved the following two claims for our review:
1. The [trial court] erred by not temporarily suspending [] Ettison's obligation to make payments in light of his financial circumstances and the evidence presented, which showed that [] Ettison had no present ability to pay, in violation of his rights
to Due Process and Equal Protection outlines in, inter alia, Commonwealth ex rel. Parrish v. Cliff , 304 A.2d 158 (Pa. 1973), Bearden v. Georgia , 461 U.S. 660 (1983) and Pa.R.Crim.P. 706; andConcise Statement, 8/7/17. To the extent that Ettison raises claims not included in the above-stated issues, we deem them waived. See Pa.R.A.P. 1925(b)(3)(iv) (providing that the failure to include an issue in a Rule 1925(b) statement results in waiver).
2. The [trial court] erred by placing [] Ettison on an unreasonable payment plan in light of his financial circumstances and the evidence presented, which showed that [] Ettison has no present ability to pay, in violation of his rights to Due Process and Equal Protection outlined in, inter alia, Commonwealth ex rel. Parrish v. Cliff , 304 A.2d 158 (Pa. 1973), Bearden v. Georgia , 461 U.S. 660 (1983)[,] and Pa.R.Crim.P. 706.
For example, Ettison asks this Court whether the standards applicable to a determination of in forma pauperis status and the appointment of counsel should be applied to determine whether a criminal defendant may gain relief under Pa.R.Crim.P. 706. Brief for Appellant at 36. This argument was not raised in Ettison's Rule 1925(b) Concise Statement and, accordingly, is waived. See Pa.R.A.P. 1925(b)(3)(iv).
We will address Ettison's claims together, as they are all related to whether Ettison was entitled to the suspension or waiver of his obligation to pay fines, costs and restitution installment payments (hereinafter Ettison's "financial obligations") under Pa.R.Crim.P. 706(D). Ettison first challenges the trial court's rejection of his request to suspend or waive his financial obligations. Brief for Appellant at 19. Ettison argues that at the hearing, he presented uncontested evidence that he could not afford to comply with his payment plan. Id. According to Ettison, the uncontested evidence showed that he (1) was in a car accident that left him "fully disabled"; (2) lost his job because he was unable to work as a result of the accident, and the pain it caused him; (3) sleeps at his siblings' houses because otherwise, he would be homeless; and (4) has no assets of any value. Id. at 19-20. In support, Ettison asserts that a different common pleas court judge temporarily suspended his child support payments, in light of his indigence. Id. at 20. Ettison argues that "the only burden on [him] was to show [that] he could not pay $85 per month, a burden that he met." Id. at 22. Ettison questions the trial court's determination that he failed to meet his burden, while simultaneously reducing Ettison's monthly payment from $85 to $50. Id. at 20-21.
Ettison contends that he was not given the opportunity to challenge his ability to afford the new payment amount, as it was never proposed to him. Id. at 21. Ettison directs our attention to case law holding that a defendant's entitlement to public assistance invites a "presumption of indigence." Id. at 23. According to Ettison, the Commonwealth did not present evidence to rebut this presumption. Id. at 25. Ettison also disputes the trial court's findings regarding his indigence, its consideration of "irrelevant" evidence, and its credibility determinations. Id. at 25-32.
Ettison asserts that the trial court's findings regarding his ability to pay are contradicted by the evidence of record, and relies upon the testimony of his chiropractor, Dr. John Lupo, as being "conclusive." Id. at 27-28. In particular, Ettison directs our attention to testimony regarding Ettison's inability to perform light duty work, arguing that the trial court drew an unsubstantiated conclusion that Ettison is not fully disabled. Id. at 34. Ettison claims that there was no evidence that he can pay the newly imposed amount of $50 per month. Id. at 33-35.
Ettison additionally asserts that the imposition of an impossible payment plan could lead to a deprivation of his liberty interest. Id. at 41. Ettison argues that, "[e]ven without actually holding [a] defendant in contempt, there is the real possibility of an erroneous deprivation of [an] individual's liberty interest[,] if the trial court issues a bench warrant simply for [the] failure to pay." Id. at 41. Ettison asserts that "the Pennsylvania Supreme Court could not have intended[,] when it ruled in Parrish and enacted Rule 706[,] that trial courts could place defendants on payment plans[,] when the uncontested evidence showed that they could not afford to pay those amounts." Id. at 42-43. Ettison further posits that if the trial court found him capable of light work, "the reasonable course of action would have been to set [] Ettison on a payment plan that started in several months, so that he would have time to look for work." Id. at 44.
In its Opinion, the trial court addressed Ettison's claims and concluded that they lack merit. See Trial Court Opinion, 9/29/11, at 7-15. The trial court's findings are supported in the record and its legal conclusions are sound. We therefore affirm on the basis of the trial court's Opinion with regard to Ettison's claims, see id., with the following addendum.
Issues pertaining to a defendant's inability to pay court costs, fines and restitution are governed by Rule 706 of the Rules of Criminal Procedure, which provides as follows:
(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, as set forth in paragraph (D) below.
(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.
Comment:Pa.R.Crim.P. 706. Rule 431(C) provides, in relevant part, as follows:
See generally Commonwealth ex rel. [ Parrish ] v. Cliff , 451 Pa. 427, 304 A.2d 158 (1973).
Under this rule, when a defendant fails to pay the fine and costs, the common pleas court judge may issue a bench warrant for the collection of the fine and costs. When a "failure to pay" bench warrant is issued, the bench warrant must be executed by a police officer following the procedures set forth in Rule 431(C)(1)(c) and (C)(2), or, if the defendant is unable to pay, the police officer must proceed as provided in Rule 150 (Bench Warrants).
Nothing in this rule is intended to abridge any rights the Commonwealth may have in a civil proceeding to collect a fine or costs.
(1) When a bench warrant is executed, the police officer shall either
...
(c) accept from the defendant the amount of restitution, fine and costs due as specified in the warrant if the warrant is for collection of restitution, fines, and costs after a ... conviction; or
(d) if the defendant is unable to pay, promptly take the defendant for a hearing on the bench warrant as provided in paragraph (C)(3).
...
Pa.R.Crim.P. 431(C)(1), (3).
(3) When the defendant does not pay the restitution, fine and costs, or collateral, the defendant promptly shall be taken before the proper issuing authority when available pursuant to Rule 117 for a bench warrant hearing. The bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.
"When construing a Rule of Criminal Procedure, courts utilize the Statutory Construction Act when possible." Commonwealth v. Sepulveda , 144 A.3d 1270, 1270 n.18 (Pa. 2016) (citing Pa.R.Crim.P. 101(c)). Under the Statutory Construction Act, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. § 1921(a). "This Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it." Key Sav. and Loan Ass'n v. Louis John , Inc., 549 A.2d 988, 991 (Pa. Super. 1988) (citing Worley v. Augustine , 456 A.2d 558, 561 (Pa. Super. 1983)).
As set forth above, Rule 706(D) provides a criminal defendant with the opportunity to request a hearing, at which "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[.]" Pa.R.Crim.P. 706(D). When a defendant meets that burden, subsection (D) authorizes the court to "extend or accelerate the payment schedule or leave it unaltered[.]" Pa.R.Crim.P. 706(D) (emphasis added). Rule 706(D) provides no entitlement to having fines and costs suspended or waived, even after indigent status is recognized. Thus, Ettison asks this Court to insert the words "waive" or "suspend" into Rule 706(D), where the legislature has failed to do so. This we cannot do. See Key Sav. and Loan Ass'n , 549 A.2d at 991. As the waiver or suspension of Ettison's financial obligations is not authorized under Rule 706(D), Ettison's claims challenging the trial court's failure to suspend or waive his payments lack merit.
Notwithstanding the trial court's failure to credit Ettison's evidence regarding his inability to pay, the court nevertheless reduced Ettison's monthly financial obligations.
We also note that, although Ettison questions the protection of his liberty interests should he be unable to pay the new monthly installment amount, procedural safeguards remain in place. The United States Supreme Court has made it clear that "a court may not constitutionally imprison someone for nonpayment of court costs and fines alone. Instead, it must be proved that the person 'has willfully refused to pay the fine or restitution when he has the means to pay ....'" Commonwealth v. Mauk , 185 A.3d 406, 411 (Pa. Super. 2018) (quoting Bearden , 461 U.S. at 668). "Process is due in all costs-and-fines proceedings." Mauk , 185 A.3d at 411.
See Brief for Appellant at 41.
In the future, should Ettison fail to meet the new payment schedule, the trial court must conduct a hearing and render findings of fact as to Ettison's financial resources. See 42 Pa.C.S.A. § 9730 (stating that imprisonment for nonpayment must be pursuant to law); id. § 9772 (explaining that imprisonment for nonpayment must occur after a hearing and a determination that the defendant's failure to pay was not excusable); Pa.R.Crim.P. 431(C)(1)(d), (C)(3) (if a defendant is unable to pay, requiring a police officer serving a "failure to pay" bench warrant to "promptly take the defendant for a hearing on the bench warrant" before the proper issuing authority); see also Commonwealth v. Diaz , 2018 Pa. Super. LEXIS 693 *34 (Pa. Super. filed June 21, 2018) (concluding that, "[b]y imprisoning [the defendant] without the required findings of fact of his financial resources, the court failed to apply the law properly."). Thus, Ettison's concern over a future due process violation, and the protection of his liberty interests, is not only premature, it is unwarranted.
Ettison argues in his Supplemental Brief that in Diaz , this Court held that the trial court improperly imposed a $100 per month payment plan on two defendants, because it had failed to make the required findings regarding the defendants' financial resources. Supplemental Brief at 1. However, this Court held that imprisoning the defendants, without determining their financial resources, constituted error. See Diaz , supra.
In the event that Ettison is unable to meet the new monthly obligation, Rule 706 permits him to seek a further reduction in his payment amounts. See Pa.R.Crim.P. 706(D).
Consequently, for the additional reasons stated above, we discern no abuse of discretion by the trial court in reducing Ettison's monthly payment obligation, but declining to suspend or waive Ettison's financial obligations.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/20/2018
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