Costs of Prosecution for Contested Expert Testimony in Contested Resentencing under 16 P.S. § 1403
Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super. 2019), allocatur granted June 25, 2019, appeal docket 47 MAP 2019 (to be argued consecutively with Commonwealth v. Davis involving a similar cost of prosecution issue)
The Supreme Court granted allocatur to consider whether costs relating to contested expert testimony in a contested resentencing constitute costs of prosecution under 16 P.S. §1403, and are ineligible for imposition upon a defendant reimbursement as part of a sentence as a matter of law.
Twenty-eight years ago, Matthew Lehman was convicted, when he was a juvenile, of first-degree murder, burglary, robbery, and criminal conspiracy, and sentenced to life imprisonment without the possibility of parole. Following U.S. Supreme Court decisions holding that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments, the trial court resentenced Lehman to an aggregate term of 30 years to life imprisonment and ordered Lehman to pay costs associated with his resentencing. “The total costs imposed were $15,150.28. The bulk of the costs—$8,950.00—involved the examination and testimony of the Commonwealth’s expert witness, Dr. Larry Rotenberg, who did not find Appellant to be irreparably corrupt.” Slip Op. at 1 n.1. Lehman appealed to Superior Court, arguing that the trial court imposed an illegal sentence by ordering him to pay costs associated with his resentencing proceedings, which came about because of the illegality of his original sentence, i.e., that expenses incurred by reason of resentencing proceedings undertaken after the initial imposition of an unlawful sentence fall outside the trial court’s authority to impose costs. The Commonwealth countered that Lehman’s claim challenged the discretionary aspects of his sentence and therefore the imposition of resentencing costs were within the trial court’s discretion.
Superior Court held that although Lehman “chose” to receive a constitutional sentence by filing his PCRA petition and petition for a writ of habeas corpus, the Commonwealth was not entitled to recover the costs associated with the resentencing process because “a trial court lacks authority to impose costs associated with a resentencing proceeding necessitated by the imposition of a prior illegal sentence.” Slip Op. at 2. Superior Court reasoned that this holding was in line with its decision in Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super. 2013), aff’d, 629 Pa. 313, 105 A.3d 656 (2014) (per curiam ), explaining:
In that case, the Commonwealth charged the defendant with driving under the influence of drugs. The criminal information alleged that morphine was present in his blood while he operated his motor vehicle. Similarly, a pre-trial report presented to the defendant indicated that a laboratory found morphine in his blood. At trial, the Commonwealth called a laboratory employee to testify regarding the test results. That witness, however, testified that benzodiazepines were found in the defendant’s blood. At that point, the trial court declared a mistrial and permitted the Commonwealth to amend the criminal information.
At the retrial, a different laboratory employee testified and the defendant was convicted. At sentencing, the trial court ordered the defendant to pay costs associated with the laboratory employees’ testimony at both trials. The defendant filed a post-sentence motion arguing that he should not be responsible for paying costs associated with the laboratory employee’s testimony at the second trial. The trial court granted the post-sentence motion and amended the judgment of sentence so that the defendant was responsible for paying the costs for the laboratory employee’s testimony only at the first trial. The Commonwealth appealed that determination to this Court and this Court affirmed the trial court’s decision not to impose costs related to the second trial.
The costs of resentencing in this case arose because Appellant elected to exercise his rights under Miller and Montgomery. This is akin to the circumstances in Weaver, where the defendant “chose” to exercise his constitutional right to due process of law by being informed of the charges against him prior to trial. In Weaver, this Court held that the Commonwealth was responsible for the costs of the second trial. This is sensible because it is well-settled that a defendant may not be punished for exercising his or her constitutional rights. Commonwealth v. Speight, 578 Pa. 520, 854 A.2d 450, 455 (2004); United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). If we held that Appellant was responsible for paying the costs associated with resentencing, we would punish him for exercising his constitutional right to receive a sentence that comports with the Eighth Amendment of the United States Constitution (as incorporated against the states via the Fourteenth Amendment). Thus, although Appellant “chose” to receive a constitutional sentence by filing his PCRA petition and petition for a writ of habeas corpus, that does not entitle the Commonwealth to recover the costs associated with the resentencing process.
Additionally, in affirming the trial court’s decision limiting the defendant’s payment of costs associated with the laboratory employee’s testimony in only the first trial, this Court in Weaver explained that a defendant is not responsible for costs that are a result of certain actions by the Commonwealth. Weaver, 76 A.3d at 574. In reaching that decision, this Court relied on our Supreme Court’s decision in Commonwealth v. Coder, 490 Pa. 194, 415 A.2d 406 (1980). In Coder, our Supreme Court held that the defendant was responsible for paying the costs associated with a change in venue. Our Supreme Court explained, however, that when “the prosecution is primarily responsible for the conditions which necessitate the change of venue, the defendant should be absolved of the costs incident to the change of venue.” Id. at 409 n.4. This Court reasoned that Coder indicates that the Commonwealth must bear the costs of prosecution when the Commonwealth is responsible for the increase in costs. Weaver, 76 A.3d at 574. In other words, costs are not “necessary” if they would not have arisen but for the Commonwealth’s actions. See id.
While we recognize that the situation in Weaver does not align perfectly with the circumstances presently before us, we nonetheless believe that Weaver supplies the principle to be applied here. In Weaver, the costs were accrued as a result of actions taken by the Commonwealth through the district attorney. We see no reason to differentiate between the actions taken by the Commonwealth in prosecuting an action from the actions taken by the Commonwealth in enacting a statute that is later declared to be unconstitutional. There was no action taken by the defendant in Weaver or Appellant in this case which necessitated the further proceedings for which costs were imposed. In both situations, the additional costs would not have arisen but for the actions of the Commonwealth. Thus, when further proceedings are not necessitated by the actions of the defendant and the defendant obtains relief as a result of those proceedings, the Commonwealth should bear the risk of paying the additional costs.
Slip Op. at 13-15 (footnotes omitted). Superior Court further held that it was not reasonably foreseeable that Lehman would receive an illegal sentence and later be resentenced, therefore the trial court lacked the authority to order Lehman to pay costs associated with the resentencing proceedings.
The Supreme Court granted allocatur in this case to consider:
Whether the Pennsylvania Superior Court erred as a matter of law by holding that the costs relating to contested expert testimony in a contested resentencing do not constitute costs of prosecution under 16 P.S. §1403, and are ineligible for imposition upon a defendant reimbursement as part of a sentence as a matter of law rather than the sentencing court’s discretion?
As part of the courts’ ongoing Covid 19 response, the Supreme Court will hear oral argument in this case via video conference: www.pacourts.us/courts/supreme-court/may-2020-supreme-court-session.
For more information, contact Kevin McKeon or Dennis Whitaker.