HomeMy WebLinkAboutCP-21-CR-0000378-2000COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. CP -21 -CR -0000378-2000
CP -21 -CR -0000319-2009
JAMES [A.] BORWEGEN
IN RE: DEFENDANT'S REQUEST TO STOP 20% DEDUCTION
AND RETURN OF MONIES FROM INMATE'S ACCOUNT
PURSUANT TO PA.C.S.A. 8127
AND NOW, this 26"' day of October, 2018, upon consideration of Defendant's
Request To Stop 20% Deduction and Return of Monies from Inmate's Account Pursuant
to Pa.C.S.A. 8127, filed October 12, 2018, and for the reasons stated in the
accompanying opinion, the request is denied.
BY THE COURT,
&zL-,-
J.p6si—ey01W,Jr., S.J.
Office of the Cumberland County District Attorney
For the Commonwealth
James Borwegen #EP3714
Smart Communications/PA DOC
SCT -Fayette
PO Box 33028
St. Petersburg, FL 33733
Defendant pro se
SCT -Fayette
ATTN: Records Department
50 Overlook Drive
LaBelle, PA 15450
Cumberland County Clerk of Courts
COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. : CP -21 -CR -0000378-2000
: CP -21 -CR -0000319-2009
JAMES [A.] BORWEGEN
IN RE: DEFENDANT'S REQUEST TO STOP 20% DEDUCTION
AND RETURN OF MONIES FROM INMATE'S ACCOUNT
PURSUANT TO PA.C.S.A. 8127
BEFORE OLER, S.J.
OPINION and ORDER OF COURT
OLER, S.J., October 26, 2018.
For disposition in these criminal cases is Defendant's pro se Request To Stop 20%
Deduction and Return of Monies from Inmate's Account Pursuant to 42 Pa. C.S.A. 8127,
filed October 12, 2018. The request is primarily premised on the failure of this court to
conduct an ability -to -pay hearing pursuant to Section 9730(b) of the Judicial Code.
For the reasons stated in this opinion, Defendant's request will be denied.
STATEMENT OF FACTS
Defendant is currently incarcerated in the State Correctional Institution at Fayette.
At CP -21 -CR -0000378-2000, Defendant was found guilty following a jury trial of third
degree murder and other charges, and was sentenced on March 20, 2001; according to his
current filing, the Pennsylvania Department of Corrections was notified by the Clerk of
Courts of Cumberland County that he owed $12,802.28 in fines, costs and/or restitution
in connection with that case. At CP -21 -CR -0000319-2009, Defendant pleaded guilty to
driving under the influence, and was sentenced on May 5, 2009; according to his current
filing, the Pennsylvania Department of Corrections was notified by the Clerk of Courts
that he owed $1,363.14 in fines, costs and/or restitution in connection with that case.
Pursuant to those notifications, the Department commenced deductions of 20% from
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Defendant's account, according to Defendant, presumably pursuant to its authority under
Section 9728(b)(5) of the Judicial Code,I sometimes known as Act 84.
It is alleged by Defendant that "[a] deduction in the amount of 20% creates a
financial burden on petitioner that he is unable to afford and there should be a hearing on
Petitioner's ability to pay 20%. Petitioner's only source of income is normal prison wages
and personal gifts from family and friends when they are able to afford it."Z Citing
Section 8127(a) (general exemption of wages from attachment for purposes of execution)
and Section 9730(b) (authorization for ability -to -pay hearing by trial court in event of
default in payment of fines, costs or restitution) of the Judicial Code, and Pennsylvania
Rule of Criminal Procedure 706 (prohibition on commitment to prison for failure to pay
fines or costs in absence of hearing), Defendant requests the court to "enter an order that
would cease the 20% deductions and cause the clerk of courts for cumberland county to
reimburse the petitioner in the amount of $3,500 for the deductions that were illegal in
accordance with Pa. Laws and Statues."3
In seeking this relief, Defendant advises that "I am not in any way challenging the
Pa. Department of Corrections. I am challenging the fact that I was never given a Section
9730(B) hearing to determine my ability to make 20% or any installments towards fines,
costs, and/or Restitution and by doing so my Due process rights were violated and
monies illegally taken from me."4 In this regard, it may be noted that a highly similar
filing by Defendant to terminate the Department's deductions and remit money had been
142 Pa. C.S. §9728(b)(5).
2 Defendant's Request To Stop 20% Deductions and Return of Monies from Inmate's Account Pursuant
to 42 Pa.C.S.A. 8127, 16, filed October 12, 2018.
3 Defendant's Request To Stop 20% Deductions and Return of Monies from Inmate's Account Pursuant
to 42 Pa.C.S.A. 8127, ¶¶4, 7-8, 11, filed October 12, 2018.
4 Defendant's Request To Stop 20% Deductions and Return of Monies from Inmate's Account Pursuant
to 42 Pa.C.S.A. 8127, 110, filed October 12, 2018.
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previously transferred to the Commonwealth Court by this court on jurisdictional
grounds.5
DISCUSSION
To the extent that Defendant relies upon Section 8127(a) of the Judicial Code6 and
Pennsylvania Rule of Criminal Procedure 706 for the proposition that deductions from
his inmate account are unlawful, such reliance is clearly misplaced. Under Section
8127(x), as a general rule "[t]he wages, salaries and commissions of individuals shall
while in the hands of the employer be exempt from any attachment, execution or other
process . . . ."' An exception to the general rule, however, exists in the case of
"restitution to crime victims, costs, fines or bail judgments pursuant to an order entered
by a court in a criminal proceeding." 42 Pa.C.S. § 8127(a)(5).
Under Pennsylvania Rule of Criminal procedure 706(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 fines or costs." Defendant does
not suggest that he is currently in prison for failure to pay the fines and costs associated
with the above -captioned cases, and, as will be discussed hereafter, the modest Act 84
deductions complained of from his inmate account do not require a hearing by the trial
court.
With respect to Defendant's reliance upon Section 9730(b) of the Judicial Code,8
the case of Buck v. Beard, 583 Pa. 431, 879 A.2d 157 (2005), is instructive. Under
Section 9730(b), "[i]f 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
' See Order of Court, dated March 5, 2018.
6 42 Pa.C.S. § 8127(a).
' 42 Pa.C.S. § 8127(a).
$ 42 Pa. C.S. § 9730.
3
magisterial judge appointed by the president judge for the purpose of this section may
conduct a hearing to determine whether the defendant is financially able to pay."9
In Buck, the Pennsylvania Supreme Court rejected a state prisoner's due process
argument that Act 84 deductions from his inmate account in the absence of a hearing by
the trial court pursuant to Section 8730(b) of the Judicial Code were unlawful. In so
holding, the Court accepted the Commonwealth's analysis of the merits of the case:
The Department asserts that Appellant's sentencing hearing afforded him
the necessary due process. After the hearing, where the court was
statutorily required to consider his ability to pay, it sentenced Appellant to
serve a sentence and pay a fine of $10,000.... At his sentencing hearing,
[Defendant] had the opportunity to present evidence to persuade the court
not to impose fines, costs, and restitution. He also had a right to file an
appeal from that portion of the sentence.
The public policy of the Commonwealth favors restitution. Section
1106(c)(1)(i) of the Crimes Code directs the court to order full restitution
regardless of the financial resources of the defendant. Section 9721(c) of
the Sentencing Code, 42 Pa.C.S. § 9721(c) provides that "the court shall
order the defendant to compensate the victim of his criminal conduct for the
damage or injury that he sustained." Consistent with this policy, the
Legislature amended Section 9728 in 1998 by adding Section 9728(b)(3),
to provide that the clerk of courts shall transmit orders for restitution, fines,
and costs to the county correctional facility or Department of Corrections.
It also added Section 9728(b)(5), which provides that the county
correctional facility or Department of Corrections shall be authorized to
make monetary deductions from inmate personal accounts for the purpose
of collecting restitution or any other court-ordered obligation. The
Legislature used the mandatory language shall in authorizing the
deductions. This language is inconsistent with Appellant's argument that
deductions are authorized only after the court of common pleas has
conducted a default hearing.
9 42 Pa. C.S. § 9730(b)(1).
in
The purpose of a default hearing is to determine the offender's resources
and ability to pay. For an incarcerated offender, however, such a hearing is
of little practical benefit. Corrections officials know the amount of money
in a prisoner's account. They also know that he will be provided with life's
necessities even if he has only minimal funds in his account. There is little
to be gained by holding a hearing to confirm matters that are already
known. In addition, the limited practical benefit of holding another hearing
must be balanced against the high costs of returning an inmate to the county
of his sentencing for such a hearing.
Section 9728 directs the Department to develop guidelines for making
monetary deductions from inmate accounts to satisfy court-ordered
obligations. It is a special provision limited to a particular class of
offenders, prisoners, and a particular type of asset, inmate accounts.
Appellant correctly notes that pursuant to Section 9730(b) of the
Sentencing Code, when a defendant is in default, the court of common
pleas conducts a hearing to determine the defendant's ability to pay, and
then may order an appropriate payment plan. Section 9730(b) directs the
court to consider the defendant's financial resources. However, we agree
with the Commonwealth Court that in granting to the Department the
supplementary power to collect court-ordered financial obligations from
inmate accounts, the Legislature recognized that the deducted amounts
were relatively small and that it was impractical and burdensome for trial
courts to conduct an ability to pay hearing anytime the funds in an inmate's
account fluctuated. Prior to the enactment of Section 9728(b)(5), if a
prisoner did not make voluntary restitution payments, the only recourse was
for the court to order a default hearing pursuant to Section 9730. Section
9728(b)(5) provides an additional procedure for deducting restitution, fines,
and costs directly from inmate accounts pursuant to a legally imposed
sentence.10
Buck v. Beard, 583 Pa. 431, 436-38, 879 A.2d 157, 160-61 (2005).
Based upon the foregoing, the following order will be entered:
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ORDER OF COURT
AND NOW, this 26"' day of October, 2018, upon consideration of Defendant's
Request To Stop 20% Deduction and Return of Monies from Inmate's Account Pursuant
to Pa.C.S.A. 8127, filed October 12, 2018, and for the reasons stated in the
accompanying opinion, the request is denied.
BY THE COURT,
J. esley 016;3r., S.J.
Office of the Cumberland County District Attorney
For the Commonwealth
Smart Communications/PADOC
James A. Borwegen #EP3714
SCI -Fayette
PO Box 33028
St. Petersburg, FL 33733
Defendant pro se
SCI -Fayette
ATTN: Records Department
50 Overlook Drive
LaBelle, PA 15450
Cumberland County Clerk of Courts
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