Com. v. Baizar, C.

C
J-S55029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES WILLIAM BAIZAR                     :
                                               :
                       Appellant               :   No. 449 WDA 2020

       Appeal from the Judgment of Sentence Entered February 25, 2020
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001016-2019


BEFORE:      BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.:                        FILED: APRIL 30, 2021

        Charles William Baizar (Appellant) appeals from the judgment of

sentence imposed in the Court of Common Pleas of Erie County (sentencing

court) after he entered a guilty plea to criminal conspiracy of possession with

intent to deliver (PWID) heroin.1 We vacate Appellant’s judgment of sentence,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30). Upon entry of Appellant’s plea,
charges of possession of a controlled substance (35 P.S. § 780-113(a)(16))
and of drug paraphernalia (35 P.S. § 780-113(a)(32)) were dismissed. We
note that there is some confusion as to the controlled substance in question,
as the Commonwealth refers to cocaine; see Commonwealth’s Brief at 4.
However, the plea transcript confirms that the substance in question is heroin;
see N.T. Plea, 12/10/19, at 7. Appellant entered a plea to PWID in the range
of 100 to 1000 grams. See N.T. Sentencing, 2/25/20, at 9. The burden to
pay lab fees is shared by codefendants Jermaine Belgrave and Sheldon
Morales, as imposition was joint and several; Appellant’s Brief at 4.
J-S55029-20



remand the case for 30 days for proceedings consistent with this

memorandum, and retain jurisdiction.

       Appellant brings a single challenge:

       Did the trial court err when it ordered Appellant, who had been
       solely convicted of conspiracy to distribute heroin, to pay all of the
       lab fees requested by the Commonwealth at sentencing where
       some of these fees did not stem from this particular conviction,
       thereby violating 42 Pa.C.S.[ ] § 1725.3 and the United States
       Supreme Court’s holding in Nelson v. Colorado, 

137 S. Ct. 1249

       (2017)?

Appellant’s Brief at 7.2

       At Appellant’s plea hearing, he entered a plea acknowledging the

following, as stated by the Commonwealth:

       I’m now going to go over what the Commonwealth alleges that
       you did.

       On February 7th of 2019, you did, with the intent of promoting
       the commission of the crime of delivery of a controlled substance,
       did agree with Jermaine Belgrave, Morales and others known or
       unknown, to engage in conduct which constitutes an attempt or
       solicitation to commit a crime.

       Specifically, you did attempt to exchange one kilo of heroin in
       exchange for $80,000. Heroin is a Schedule I substance. This
____________________________________________


2 Appellant’s appeal was timely filed, and Appellant and the trial court both
complied with Pa.R.A.P. 1925; these filings were made in the spring of 2020,
when the entire state was under an extension order from our Supreme Court
in response to the COVID-19 pandemic. See In re Gen. Statewide Judicial
Emergency, 

229 A.3d 229

, 230 (Pa. April 1, 2020) (“any legal papers or
pleadings which are required to be filed between March 19, 2020, and April
30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May
1, 2020, or on a later date as permitted by the appellate or local court in
question”). Thus, Appellant’s Notice of Appeal, docketed with the sentencing
court on March 30, 2020, must be considered timely filed.


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       occurred at the Courtyard Marriott, Sassafras Pier here in Erie,
       thereby you did commit the crime of criminal conspiracy, delivery,
       a felony.

N.T. Plea Hr’g at 7-8.

       The trial court points out that Appellant did not object to the imposition

of joint and several liability with his codefendants for the $10,229 lab fee.

Trial Ct. Op., 6/23/20, at 1. Appellant frames this as a non-waivable challenge

to the legality of sentence, and acknowledges that the issue was raised initially

in Appellant’s statement per Pa.R.A.P. 1925(b).3           Appellant’s Brief at 11.

Thus, our first inquiry must be whether this Court has jurisdiction to hear this

appeal. If this is a legality of sentence issue, then jurisdiction lies;4 if it is not,

then the issue is waived for failure to object at the time joint and several

liability for the lab fee was imposed.

       Appellant cites Commonwealth v. Garzone, 

993 A.2d 306

(Pa. Super.

2010) in support of his jurisdictional argument.           Appellant’s Brief at 12.

Garzone involved a claim that imposition of grand jury costs and costs arising

from the salaries of prosecutors should not have been imposed as part and

parcel of the appellant’s sentence; “we note that, inasmuch as Appellant’s

argument is premised upon a claim that the trial court did not have the

authority to impose the costs at issue, Appellant has presented a legality of

____________________________________________


3 Appellant filed a post-sentence motion seeking a downward adjustment to
the length of his sentence, but did not seek review of costs imposed.
Appellant’s Brief at 9.

4 See Commonwealth v. Hill, 

238 A.3d 399

, 409 (Pa. 2020) (where
challenge implicates legality of sentence, it is non-waivable).

                                           -3-
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sentencing claim.” 

Garzone, 993 A.2d at 316

. “[A] determination that a

claim implicates the legality of a sentence ... operates to revive a claim

otherwise insufficiently preserved below[.]” Commonwealth v. Weir, 

239

A.3d 25

, 34 (Pa. 2020) (citations omitted) (challenge to restitution award

sounds in discretionary aspects of sentence and must be properly preserved).

“Where such a challenge is directed to the trial court’s authority to impose

restitution, it concerns the legality of the sentence; however, where the

challenge is premised upon a claim that the restitution order is excessive, it

involves a discretionary aspect of sentencing.” In re M.W., 

725 A.2d 729

,

731 n.4 (Pa. 1999).

      Therefore, to the extent that Appellant is claiming merely that the

portion of his sentence imposing laboratory costs is excessive, it is not

properly preserved. However, to the extent Appellant claims that the trial

court lacked authority to impose the testing amounts, his challenge sounds in

legality of, rather than the discretionary aspects of, his sentence. It is well-

established that “[i]f no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction.” Commonwealth

v. Rivera, 

95 A.3d 913

, 915 (Pa. Super. 2014) (citation omitted). “Issues

relating to the legality of a sentence are questions of law[.] ... Our standard

of review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Aikens, 

139 A.3d 244

, 245 (Pa. Super. 2016), aff’d sub

nom. Commonwealth v. Aikens, 

168 A.3d 137

(Pa. 2017).

      Section 1725.3 of the Judicial Code states, in relevant part:

                                     -4-
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         (a) Imposition.--A person who is placed on probation without
         verdict pursuant to section 17 of the act of April 14, 1972 (P.L.
         233, No. 64),1 known as The Controlled Substance, Drug,
         Device and Cosmetic Act, or who receives Accelerated
         Rehabilitative Disposition or who pleads guilty to or nolo
         contendere to or who is convicted of a crime as defined in 18
         Pa.C.S. § 106 (relating to classes of offenses) or 75 Pa.C.S. §
         1543(b)(1.1) (relating to driving while operating privilege is
         suspended or revoked) or 3802 (relating to driving under
         influence of alcohol or controlled substance) or 3735 (relating
         to homicide by vehicle while driving under influence) or 3735.1
         (relating to aggravated assault while driving under the
         influence) or 3808(a)(2) (relating to illegally operating a motor
         vehicle not equipped with ignition interlock) or a violation of
         The Controlled Substance, Drug, Device and Cosmetic Act
         shall, in addition to any fines, penalties or costs, in every case
         where laboratory services were required to prosecute the
         crime or violation, be sentenced to pay a criminal laboratory
         or paramedic user fee which shall include, but not be limited
         to, the cost of sending a laboratory technician or paramedic to
         court proceedings.

         (b) Amount of user fee.—

         ...

         (2) If a Pennsylvania State Police laboratory has provided
         services in the prosecution, the director or similar officer of the
         Pennsylvania State Police laboratory shall determine the actual
         cost of the laboratory services provided in the prosecution and
         transmit a statement for services rendered to the court.

42 Pa.C.S. § 1725.3(a), (b)(2).

      Appellant argues that “[t]he plain language of this statute requires an

individual, convicted of a violation of the Drug Act, to pay the lab fee required

to prosecute that particular violation. Further, the State Police lab is required

to submit a report of the actual cost associated with the lab services provided

in that prosecution.” Appellant’s Brief at 13. Appellant also cites Nelson, for


                                      -5-
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the proposition that “absent conviction, the courts have no legal right to exact

or retain the funds paid by a defendant toward costs, fees, and restitution.”

Appellant’s Brief at 13-14, citing 

Nelson, 137 S. Ct. at 1255-56

.             He

acknowledges that Nelson involved cases wherein defendants’ convictions

were subsequently overturned, and those defendants sought return of monies

already paid.   Appellant’s Brief at 14.   He also cites Commonwealth v.

Smith, 

361 A.2d 881

(Pa. Super. 1976), in which this Court held that a

defendant who is acquitted of a felony, but convicted of a misdemeanor,

“cannot be ordered to pay the costs of prosecuting the felony charge because

he was acquitted.” 

Smith, 361 A.2d at 883

; Appellant’s Brief at 14, 17. “The

question becomes, therefore, what portion of the costs were necessary to

convict appellant on the misdemeanor charge.”

Id.

At sentencing, the

Commonwealth gave the following numbers: “427,

580, 1,444, 274, 7,145, 246, and 113. We’d ask for those lab fees.” N.T.

Sentencing at 10.    Our review of the record reveals that those numbers

correspond as described below.      First, a Laboratory User Fee Statement

(statement) for $427 for AFIS latent print entry and comparison and an

administrative handling fee; this fee pertains to Appellant and codefendants

Jermaine Belgrave and Sheldon Morales, as well as an additional suspect




                                     -6-
J-S55029-20



named Eduardo Santana.5 Second, a statement for $580 pertaining to a case

of attempted homicide, with an administrative handling fee and a firearm

functionality test with discharged bullet and cartridge case comparison.6

Third, a statement for $1,444, with an administrative handling fee and

bloodstain identification and DNA sample preparation. Fourth, a statement

for $274, with an administrative handling fee and NIBIN Entry/Analysis, which

appears to pertain to certain ballistics analysis conducted with the National

Integrated Ballistic Information Network. Fifth, a statement for $7,145 with

an administrative handling fee and DNA analysis that appears to involve

samples taken from a parking garage and a handgun and rounds found

therein, with a few other miscellaneous sample sources such as coffee lids.

Sixth, a statement for $246, with the administrative handling fee and a

cartridge case comparison.            Seventh, a statement for $113 with the

administrative handling fee and a line item for drug analysis.

       Thus, we are not presented with an instance where the Commonwealth

recovered several substances that could have been drugs and needed to

conduct testing on all the substances to sort the wheat from the chaff. Rather,

it appears that Appellant has been saddled with lab fees having to do with

crimes with which he was never charged, and in applying Section 1725.3, we
____________________________________________


5 The statements are appended to Appellant’s presentence investigation
report; see Presentence Investigation Report, Charles William Baizar Jr.,
undated.

6This statement likewise lists the names of Appellant, his codefendants, and
suspect Santana, as do all the statements at issue.

                                           -7-
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must ask: how were these lab services “required to prosecute the crime or

violation” to which Appellant entered a plea? See 42 Pa.C.S. § 1725.3(a).

       Appellant asks that this Court vacate his judgment of sentence (but not

his plea) and remand for the Commonwealth to file an itemized lab fee report

delineating the costs associated with Appellant’s conviction. Appellant’s Brief

at 18.     The Commonwealth opposes this and argues that “[g]iven that

Appellant pled guilty to an inchoate crime involving a violation of the Drug,

Device and Cosmetic Act, Appellant was thus plainly aware of their causal

connection to the cases of both [codefendants] Belgrave and Morales, and

such awareness satisfies any obligation the Commonwealth ostensibly has

under either 61 P.S. 1403[7] or Commonwealth v. Moran, 675 A.2d 12[6]9

(Pa. Super. 1996)” (holding that defendant could not be required to pay

district attorney’s expenses incurred on charge of which defendant was

acquitted). Commonwealth’s Brief at 6.



____________________________________________


       7 All necessary expenses incurred by the district attorney or the
       district attorney’s assistants or any officer directed by the district
       attorney in the investigation of crime and the apprehension and
       prosecution of persons charged with or suspected of the
       commission of crime, upon approval thereof by the district
       attorney and the court, shall be paid by the county from the
       general funds of the county. In any case where a defendant is
       convicted and sentenced to pay the costs of prosecution and trial,
       the expenses of the district attorney in connection with such
       prosecution shall be considered a part of the costs of the case and
       be paid by the defendant.

16 P.S. § 1403.

                                           -8-
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      Nelson confirms that at a certain level, dissonance between costs

imposed and the scope of an appellant’s conviction implicates due process.

See 

Nelson, 137 S. Ct. at 1252

(“Absent conviction of a crime, one is

presumed innocent . . . [a scheme forcing parties whose convictions have been

vacated to prove innocence prior to refunding costs] offends the Fourteenth

Amendment’s guarantee of due process.”          Plainly, it cannot be within a

sentencing court’s discretion (or, indeed, any court’s discretion) to offend the

federal constitution. Therefore, if we find that the joint and several imposition

of costs that are not causally related to any charge of which Appellant has

been convicted exceeded the sentencing judge’s authority, then the issue is

not capable of succumbing to waiver.

      We are persuaded that Appellant’s argument sounds in the sentencing

court’s authority rather than the way it exercised that authority, and therefore

under Garzone, the issue is not subject to waiver. Based on the record before

us and the relative brevity of the Commonwealth’s Brief and the sentencing

court’s opinion, we cannot determine whether these laboratory fees were

within the sentencing court’s authority to impose and therefore compliant with

Appellant’s due process rights under Nelson and Smith.            Therefore, we

remand to give the Commonwealth and the sentencing court an opportunity

to complete the record for our review.

      Judgment of sentence vacated; case remanded for 30 days for

proceedings consistent with this memorandum; jurisdiction retained.

      Judge Colins joins the memorandum.

                                      -9-
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     Judge Bowes files a dissenting memorandum.




                                - 10 -

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