For the Defense - Vol. 7, Issue 4 - 57

);
,
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
entitles defendants to affordable installments. It is far better to do
this while the defendant is still represented, so that counsel can
assist with this process and help avoid default down the road.
Second, identifying potential monthly installments (if any)
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
prepares counsel to ask the court at sentencing to reduce the court
debt to something that the defendant will be able to pay. If the
defendant could afford to pay say $10 per month, then use that
monthly figure as the basis to ask the court to set costs at amount
that will not hang over the client indefinitely, i.e., if the defendant
will be on probation for 24 months, then at $10 per month the total
amount of fines and costs should not exceed $240, so that payments
should end when probation does (the statutory maximum for the
offense could be another time limit to suggest).
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
The analysis of data from AOPC discussed above, which shows
that indigent defendants often still owe costs more than ten
years after sentencing, may help to support an argument that it
is a waste of the court's time to pursue an amount of costs that
the defendant cannot pay within a reasonable window, like the
period of probation.29
Ultimately, the key is to show the court that
File your client's motion after the
unaffordable costs benefit none of the parties involved because the
defendant's inevitable default will cause needless court hearings
months or years later; by contrast, imposing affordable costs
will benefit both the defendant and the court by avoiding such
proceedings. This approach also benefits cases involving restitution
to victims because payments are split between restitution and costs,
and Rule 706(C) specifically tells courts to consider how the payment
of costs will impact victim restitution, to ensure that the payment
of costs will not delay or prevent restitution payments to victims.30
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
If the defendant owes fines or costs and defaults, there are
additional options to remove the unaffordable debt. At that point,
the court has an obligation to consider the defendant's ability
to pay and determine whether to reduce or waive the fines and
costs. This could be at a hearing at the defendant's request, a
contempt hearing, or something else like a probation revocation
hearing (although recall that the payment of costs is not a lawful
condition of probation). Counsel should be prepared to present
evidence showing that the defendant is unable to pay the costs
and specifically ask the court to find that the defendant's failure
to pay was not willful but was instead because of the defendant's
limited means. A finding of an inability to pay following default
triggers the court's duty to determine an amount of fines and costs
that would be affordable. Undoubtedly, some courts will simply
conclude that the existing debt is affordable on an appropriate
payment plan and decline to reduce or waive it; future litigation
will have to test the boundaries of when reduction or waiver would
be required. For now, counsel should present information about
the client's life and financial circumstances and press the court on
what would constitute an affordable payment plan, how long it
would take to pay the fines and costs, and whether it is realistic
and fair to have such payments hang over the head of indigent
defendants for so long. Moreover, given the changes in the Section
9730 amendments, counsel should also be prepared to explain this
change in the law and why even otherwise " mandatory " fines and
costs are now waivable (except the Section 1101 costs).
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
File your client's motion after the
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
PANTONE
2955C
7406C
CMYK
90/78/39/30
9/22/91/0
RGB
22/58/92
234/194/56
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
5
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
NOTES:
1
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Commonwealth v. Lopez, 280 A.3d 887 (Pa. 2022).
2 The text of Act 163 of 2022 is available at https://
www.legis.state.pa.us/cfdocs/billInfo/BillInfo.
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
cfm?syear=2021&sind=0&body=S&type=B&bn=1208.
3
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
restitution-pennsylvania-criminal-courts.
4
Ward, supra, at 2.
6 Ward, supra, at 7.
7 Ward, supra, at 8.
75 Pa.C.S. § 1533.
42 Pa.C.S. § 9728.
8
9
10
About the Author
Click here to view and/or print the
full notes section for this article.
prohibit access to food stamps).
11
42 Pa.C.S. § 9728.
12 Commonwealth v. Hudson, 231 A.3d 974, 980-81 (Pa. Super. Ct.
2020).
13
Share this article
Since 2006, 75 Pa.C.S. § 1541(d) permits individuals who were
convicted of DUI to have their driver's licenses restored once they
complete treatment and specifically provides that " being current
on a payment plan shall be considered as a part of a successfully
completed program. " See also H.R. Comm. on Appropriations,
2005-06 Reg. Sess.-H.B. 121 Fiscal Note, at 1 (Pa. 2005) (noting
the intent of the provision " to allow those who have been
sentenced to a treatment program for DUI to have their licenses
restored if they are current on a payment plan for court-imposed
fines and costs " ).
14
42 Pa.C.S. § 9726(d). The Court ruled in Commonwealth v.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
prior to imposing such a fine.
15
About the Author
Andrew Christy is an attorney at the ACLU of
Pennsylvania, where his practice includes litigating
matters involving fines, costs, and restitution in courts
across Pennsylvania.
Share this article
Vol. 7, Issue 4 l For The Defense 57
Vol. 4, Issue 4 l For The Defense 9
Ford, 217 A.3d 824, 831 (Pa. 2019) that Section 9726 requires that
courts consider a defendant's ability to pay discretionary fines
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
42 Pa.C.S. § 9728(b.2). Section 9721(c.1) contains substantially
identical language.
Vol. 4, Issue 4 l For The Defense 9
About the Author
Click here to view and/or print the
HEXIDECIMAL
PANTONE
full notes section for this article.
#153A5B
2955C
CMYK
7406C
#EAC137
90/78/39/30
RGB
9/22/91/0
22/58/92
234/194/56
Jeffrey Ward, et al., Imposition and Collection of Fines, Costs,
Although there is no statewide list of court costs, the ACLU of
Pennsylvania has made such a list available in the Pennsylvania
Court Costs Statutes document available at www.aclupa.org/
finesandcosts.
5
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and Restitution in Pennsylvania Criminal Courts: Research in Brief,
ACLU of Pennsylvania (Dec. 18, 2020) at 5, https://www.aclupa.
org/en/publications/imposition-and-collection-fines-costs-andThe
ACLU of Pennsylvania has extensive resources available on
its website, including legal guides, memoranda, and template
motions addressing these and related matters: www.aclupa.org/
finesandcosts.
Readers are encouraged to contact the author if
they have questions or would like assistance in any cases involving
fines, costs, or restitution.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
62 P.S. § 432(9); Pa. Dep't of Pub. Welfare, " Criminal History
Desk Guide, " http://services.dpw.state.pa.us/oimpolicymanuals/
snap/503_General_Information/503_Appendix_B.htm (explaining
that a defendant must have paid all fines, costs, or restitution, or
be on a court-approved payment plan to receive cash-assistance
benefits and that an open warrant, such as for nonpayment, will
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
http://www.aclupa.org/finesandcosts http://www.aclupa.org/finesandcosts https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022/src/Notes_Andrew_Christy.pdf http://www.legis.state.pa.us/cfdocs/billInfo/BillInfo.cfm?syear=2021&sind=0&body=S&type=B&bn=1208 http://www.legis.state.pa.us/cfdocs/billInfo/BillInfo.cfm?syear=2021&sind=0&body=S&type=B&bn=1208 http://www.legis.state.pa.us/cfdocs/billInfo/BillInfo.cfm?syear=2021&sind=0&body=S&type=B&bn=1208 https://www.aclupa.org/en/publications/imposition-and-collection-fines-costs-and-restitution-pennsylvania-criminal-courts https://www.aclupa.org/en/publications/imposition-and-collection-fines-costs-and-restitution-pennsylvania-criminal-courts https://www.aclupa.org/en/publications/imposition-and-collection-fines-costs-and-restitution-pennsylvania-criminal-courts http://www.aclupa.org/finesandcosts http://www.aclupa.org/finesandcosts http://services.dpw.state.pa.us/oimpolicymanuals/snap/503_general_information/503_appendix_B.htm http://services.dpw.state.pa.us/oimpolicymanuals/snap/503_general_information/503_appendix_B.htm
For the Defense - Vol. 7, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 4
