J-S29010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD LEE COOPER III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2495 EDA 2019

Appeal from the Judgment of Sentence Entered August 2, 2019

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0000476-2019

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: Filed: July 23, 2020

Appellant, Donald Lee Cooper III, appeals from the judgment of 

sentence entered in the Montgomery County Court of Common Pleas on 

August 2, 2019, after he was resentenced to imprisonment following 

revocation of his parole. For the reasons discussed below, we vacate and 

remand for resentencing. 

On March 4, 2019, Appellant entered a negotiated guilty plea to defiant 

trespass. The trial court imposed a negotiated sentence of time-served1to six 

months’ incarceration, plus payment of costs of prosecution, a fine of one 

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant received credit for eighteen days of incarceration from November 

18, 2018 to December 6, 2018. 
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hundred dollars, and supervision fees. See N.T., Guilty Plea, 3/4/2019, at 6; 

see also Sentencing Order, 3/4/2019, at 2. Approximately one month later 

Appellant was paroled. 

On August 2, 2019, Appellant stipulated to violating his parole. 

Specifically, Appellant stipulated that he was arrested on new charges, 

including defiant trespass; he failed to report to the probation and parole 

department as directed; he failed to maintain a legal and verifiable address; 

and he failed to pay fines and costs as directed.2 The court sentenced 

Appellant to to serve the balance of his original sentence, dated from May 31, 

2019, with no credit for time on parole, and with eligibility for parole after 

three months. The sentencing order further specified that Appellant must pay 

the “balance [due] within the first 4 months of supervision in monthly 

installments as directed” and that he “shall pay the monthly offender 

supervision fee”. Sentencing Order, 8/2/2019. This appeal followed. 

Appellant raises two issues on appeal. 

1. Did the trial court err in revoking parole on the basis of failure 

to pay costs and a fine without determining that the failure to pay 

was willful?

2. Did the parole revocation sentence illegally exceed the original 

sentence where: (a) the court sentenced [Appellant] to five 

months and twelve days of back-time after he served forty-eight 

days on a six month sentence and, (b) he is being ordered to pay 

the balance on a $1,000 fine but was originally sentenced to a 

$100 fine?

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2 Appellant was charged with failing to pay a balance due of $1,819.00, and 

an overdue amount of $727.60. 
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See Appellant’s Brief, at 2. 

In his first issue, Appellant contends he was sentenced to incarceration 

“in substantial part [for] failure to pay a fine and costs, without a 

determination that he was able to pay the fine and costs” and therefore his 

case should be remanded for an ability-to-pay hearing. Appellant’s Brief, at 

9-10. “Prior to imprisoning a contemnor for failure to pay fines or costs, the 

trial court must render findings of fact on the contemnor's financial resources.” 

Commonwealth v. Diaz, 191 A.3d 850, 866 (Pa. Super. 2018). “A claim that 

the trial court erroneously imposed an illegal sentence is a question of law 

and, as such, our scope of review is plenary and our standard of review is de 

novo.” Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013) 

(citation omitted). 

In its 1925(b) opinion, the trial court admits that it revoked Appellant’s 

parole “in part based upon his failure to pay supervision fees” and further that 

“[t]here was no determination as to his ability to pay.” Trial Court Opinion, at 

4-5. Both the Commonwealth and the trial court agree a remand is necessary 

for a hearing to determine Appellant’s ability to pay his financial obligations. 

We find Appellant’s assertion that his failure to pay his financial 

obligations was a “substantial” basis for his sentence of incarceration is belied 

by the record, as Appellant stipulated to multiple violations of his parole in 

addition to his failure to pay his financial obligations, all of which the court 
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took into consideration in resentencing Appellant. It is unclear from the record 

the amount of weight given to each violation. 

We nevertheless agree that to the extent Appellant’s failure to pay his 

financial obligations factored into the court’s reasoning in any way, Appellant 

was entitled to an ability-to-pay hearing. See Pa.R.Crim.P. 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 

fine or costs.”); see also Diaz, 191 A.3d at 866. We therefore remand to the 

trial court for a hearing on Appellant’s ability to pay his financial obligations. 

Due to our disposition, we need not reach Appellant’s second issue, in 

which he contends his new sentence illegally exceeds his original sentence in 

that the trial court miscalculated the balance of his sentence and ordered him 

to pay a higher fine than the original sentence. Since we are remanding for a 

hearing on Appellant’s failure to pay his financial obligations, a factor in his 

sentence of incarceration, it follows that the sentence imposed following 

revocation of Appellant’s parole is vacated, and we need not address this issue 

further. Appellant may raise these issues before the trial court on remand, 

prior to resentencing. 

Case remanded for resentencing after a determination of Appellant’s 

ability to pay his financial obligations. Jurisdiction is relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/20