J-S54042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENDALL HUDSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 526 WDA 2017

Appeal from the Judgment of Sentence November 9, 2016

In the Court of Common Pleas of Forest County 

Criminal Division at No(s): CP-27-CR-0000077-2016

BEFORE: OTT, MOULTON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 22, 2017

Appellant, Kendall Hudson, appeals from the judgment of sentence 

entered in the Forest County Court of Common Pleas after he pleaded guilty 

to one count of assault by prisoner.1 Appellant challenges the legality of the 

trial court’s sentence of 40 to 120 months’ imprisonment and the imposition 

of a $2,500 fine. Appellant’s counsel (“Counsel”) has filed a petition to 

withdraw and submitted an Anders/Santiago2 brief. We grant Counsel’s 

petition to withdraw and affirm. 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2703(a).

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).
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On April 22, 2016, Appellant struck a correctional officer in the face 

several times with a closed fist. The officer suffered a laceration under his 

left eye and a broken nose. Appellant was charged with aggravated assault, 

assault by prisoner, and simple assault. 

On November 9, 2016, Appellant entered an open guilty plea to 

assault by prisoner, a felony of the second degree. That same day, the trial 

court sentenced him to serve 40 to 120 months’ imprisonment and pay a 

fine of $2,500 and the costs of prosecution. The trial court nol prossed the 

remaining charges. 

On November 21, 2016, Counsel timely filed a post-sentence motion 

for reconsideration claiming that the maximum term of imprisonment and 

fine were excessive.3 The trial court held a hearing on December 16, 2016, 

and denied Appellant’s post-sentence motion that same day. Appellant 

timely filed a notice of appeal. In response to the trial court’s order for the 

submission of a Pa.R.A.P. 1925(b) statement, Counsel filed a statement of 

her intent to file an Anders/Santiago brief. See Pa.R.A.P. 1925(c)(4). 

Counsel’s Anders/Santiago brief identifies the following claims for 

review: 

I. Whether Appellant’s sentence is illegal because his 

maximum period of incarceration is more than twice his 

minimum period of incarceration?

 

3 Because the tenth day following sentencing fell on Saturday, November 19, 

2016, Appellant’s counseled post-sentence motion was timely filed. See 1 

Pa.C.S. § 1908. We note that Appellant also sent to the trial court a pro se

motion asserting that the maximum aspect of his sentence was illegal. 
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II. Whether Appellant’s sentence is illegal where the 

sentencing court imposed fines and costs without taking 

into account Appellant’s ability to pay?

Anders/Santiago Brief at 4. 

We first consider Counsel’s request to withdraw. See

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008). 

Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the 

requirements established by our Supreme Court in 

[Santiago]. The brief must:

(1) provide a summary of the procedural history and 

facts, with citations to the record;

(2) refer to anything in the record that counsel believes 

arguably supports the appeal;

(3) set forth counsel’s reasons for concluding that the 

appeal is frivolous; and 

(4) state counsel’s reasons for concluding that the 

appeal is frivolous. Counsel should articulate the 

relevant facts of record, controlling case law, and/or 

statutes on point that have led to the conclusion that 

the appeal is frivolous. 

Santiago, 978 A.2d at 361. Counsel also must provide a 

copy of the Anders brief to his client. Attending the brief 

must be a letter that advises the client of his right to: “(1) 

retain new counsel to pursue the appeal; (2) proceed pro 

se on appeal; or (3) raise any points that the appellant 

deems worthy of the court[’]s attention in addition to the 

points raised by counsel in the Anders brief.” 

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014) 

(some citations omitted). 
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Instantly, Counsel has complied with the procedures for petitioning to 

withdraw and submitted a brief that complies with the requirements of 

Anders and Santiago. Therefore, we proceed to an independent review to 

determine “whether the appeal is in fact frivolous.” Id. at 882 n.7 (citation 

and quotation marks omitted). 

Appellant’s first intended issue is that the maximum sentence of 120 

months’ imprisonment is illegal.4 According to Counsel, Appellant claims 

that the maximum sentence is illegal because it is more than double his 

minimum sentence. We agree that this claim is frivolous. 

The Sentencing Code provides, in relevant part, that the trial court 

must “impose a minimum sentence of confinement which shall not 

exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. § 

9756(b)(1) (emphases added). The permissible maximum sentence for a 

felony of the second degree is “not more than ten years.” 18 Pa.C.S. § 

1103(2). 

 

4 Although this claim was not preserved in Appellant’s counseled postsentence motion, this Court may address it sua sponte as a challenge to the 

legality of the sentence. See Commonwealth v. Milhomme, 35 A.3d 

1219, 1221 (Pa. Super. 2011) (reiterating that “[a] challenge to the legality 

of sentence is non-waivable[,]” and that “[o]ur scope of review of challenges 

to the legality of a sentence is plenary, and the standard of review is de 

novo”). We note that although Appellant’s pro se post-sentence motion is 

technically a nullity because it was filed while Counsel represented Appellant, 

he asserted that “the overlapping maximum . . . isn’t even with the 

minimum.” Appellant’s Pro Se Post-Sentence Mot., 11/18/17, ¶ 8. 
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Although Section 9756(b)(1) provides that a maximum sentence be at 

least double the minimum sentence imposed by the trial court, it does not 

limit the trial court’s authority to impose a maximum sentence greater than 

double the minimum. Thus, Counsel properly determined that Appellant’s 

intended claim misconstrues the controlling statute. Moreover, Appellant’s 

maximum sentence did not exceed the statutory maximum for the offense. 

See 18 Pa.C.S. § 1103(2). Accordingly, we conclude Appellant’s intended 

challenge to the maximum aspect of his sentence is frivolous.

The second issue identified by Counsel is a challenge to the costs of 

prosecution5and the $2,500 fine. According to Counsel, Appellant claims 

that these sanctions are illegal because “the sentencing court imposed fines 

and costs without taking into account [his] ability to pay.” 

Anders/Santiago Brief at 10. We conclude this issue is also frivolous. 

With respect to the costs of prosecution, 16 P.S. § 1403 provides, in 

part: “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. Section 1403 does 

not expressly provide for consideration of the defendant’s ability to pay 

when the costs of prosecution are imposed as part of the sentence. It is well 

 

5 The docket indicates that Appellant was assessed $50 for the costs of 

prosecution. Appellant’s total costs and fees in this case was $572. 
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settled that a defendant is not entitled to an ability to pay hearing before the 

imposition of costs. See Commonwealth v. Hernandez, 917 A.2d 332, 

337 (Pa. Super. 2007). Therefore, Appellant’s claim that the trial court 

failed to consider his ability to pay before imposing costs lacks any legal 

basis. 

As to fines, 42 Pa.C.S. § 9726 authorizes the trial court to sentence a 

defendant to pay a fine in addition to a sentence of imprisonment if “the 

court is of the opinion that a fine is specially adapted to deterrence of the 

crime involved or to the correction of the defendant.” 42 Pa.C.S. § 

9726(b)(2). Section 9726(c) states: “The court shall not sentence a 

defendant to pay a fine unless it appears of record that: (1) the defendant is 

or will be able to pay the fine; and (2) the fine will not prevent the 

defendant from making restitution or reparation to the victim of the crime.” 

42 Pa.C.S. § 9726(c). 

This Court has stated that “a claim that the trial court failed to 

consider the defendant’s ability to pay a fine can fall into several distinct 

categories.” Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa. Super. 

2013) (en banc). Possible claims include: (1) the absence of “a record of 

the defendant’s ability to pay before the sentencing court[;]” (2) the failure 

of “the sentencing court [to] consider evidence of record[;]” and (3) the 

failure of the sentencing court “to permit the defendant to supplement the 

record.” Id. The second and third categories go to the discretionary aspect 
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of the sentence. Id. at 1274. Only the first category—i.e., the complete 

absence of a record of the defendant’s ability to pay—constitutes a challenge 

to the legality of the sentence. Id. at 1273. 

Here, Counsel’s analysis focuses on a legality of sentence challenge. 

Counsel notes that this Court in Boyd held that the presentence 

investigation report (“PSI”) constitutes part of the record and that the 

information contained in the PSI may provide a sufficient evidentiary basis 

for the trial court to consider the defendant’s ability to pay. 

Anders/Santiago Brief at 11; see Boyd, 73 A.3d at 1274 (noting that the 

PSI in that case contained information regarding the defendant’s educational 

and employment history, as well as his existing assets). Counsel also notes 

that the $2,500 fine is “relatively modest.” Anders/Santiago Brief at 11. 

We agree that Appellant is not entitled to relief on this claim for separate 

reasons. 

Initially, we note that Counsel represented Appellant in the trial court 

and had an opportunity to review and amend Appellant’s PSI before 

sentencing. See N.T. Sentencing, 11/9/16, at 6-7 (indicating present 

counsel reviewed the PSI and made a correction that Appellant received a 

high school diploma). Nevertheless, the PSI was not made part of the 

certified record transmitted to this Court, which hampers our ability to 

conduct an independent review of Counsel’s assessment of this claim. 
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In any event, the record reveals that the trial court was informed of 

several factors relevant to Appellant’s ability to pay. Appellant was a high 

school graduate, was twenty-eight years old at the time of sentencing in the 

present case, and, of particular significance, was serving previously imposed 

sentences, the minimums of which would not expire until approximately 

2050. Id. at 7, 10. Thus, the trial court was apprised of factors relevant to 

Appellant’s ability to pay at the time of sentencing. Accordingly, Appellant’s 

intended challenge to the legality of the trial court’s failure to consider his 

ability to pay lacks support in the record. 

As to the discretionary aspects of Appellant’s ability to pay claim, it is 

well settled that “[a] challenge to the discretionary aspects of a sentence 

must be considered a petition for permission to appeal, as the right to 

pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 

A.2d 270, 274 (Pa. Super. 2004) (citation omitted). One requirement for 

preserving a discretionary aspects claim for appeal is that the defendant 

object in the trial court. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. 

Super. 2003). If the defendant does not give the trial court an opportunity 

to reconsider or modify its sentence on a specific basis, the claim will be 

deemed waived. Id.; see also Pa.R.A.P. 302(a). 

Instantly, Appellant challenged the imposition of the costs and the fine 

as excessive in his post-sentence motion. At the beginning of the hearing on 

the post-sentence motion, Appellant’s counsel reiterated that Appellant 
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believed that “the fine that was imposed is excessive as he lacks the ability 

to pay.” N.T., 12/16/16, at 3. The trial court thereafter discussed its 

decision to impose the 40 to 120 month term of imprisonment and denied 

the post-sentence motion. Id. at 5-7. No further discussions occurred 

regarding the fine. Aside from the boilerplate assertion that the fine was 

excessive in light of Appellant’s ability to pay, Appellant’s counsel failed to 

identify a specific discretionary argument regarding the adequacy of the trial 

court’s consideration of Appellant’s ability to pay. Therefore, we are 

constrained to conclude that a discretionary challenge to the imposition of 

the fine is waived, and that this Court is precluded from addressing that 

issue. See Pa.R.A.P. 302(a); Mann, 820 A.2d at 794.

Thus, we concur with the assessment of Appellant’s counsel that 

Appellant’s intended claims are frivolous and having conducted an 

independent review, we discern no further issues of arguable merit 

preserved for review. Accordingly, we affirm the judgment of sentence and 

grant counsel’s petition to withdraw. 

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2017