PA court: fees/fines defendants have right to appointed counsel

In Commonwealth v. Diaz, the Pennsylvania Superior Court held that defendants facing incarceration for failure to pay fees/fines have a right to appointed counsel. 191 A.3d 850 (Pa. Super. Ct. 2018).  Although the ACLU of Pennsylvania pointed out that a criminal court rule appears to provide a right to counsel for such cases, they also alternatively argued there is a constitutional right to counsel. We filed an amicus brief focused entirely on the constitutional question, pointed to cases from other jurisdictions, and urged the court to abandon the criminal/civil distinction while focusing instead on the interests at stake. To the surprise of those involved in the case, the Superior Court essentially ignored the court rule and focused entirely on the constitutional analysis. The court relied on a Washington State case we raised as well as a Texas case, distinguished Turner v. Rogers since the government was the plaintiff in Diaz, and noted that the defendant was at risk of immediate incarceration. It then held that while there is no automatic right to appointed counsel in every fees/fines contempt proceeding, “[I]n any proceeding in which the court finds there is a likelihood of imprisonment … the court must appoint counsel and permit counsel to confer with and advocate on behalf of the defendant at a subsequent hearing.” 191 A.3d at 862.

Notably, although the parties agreed the defendant had been held in civil contempt (the trial court had not said what kind of contempt it was), the court observed,

[S]ome caselaw suggests that contempt from a failure to pay court-ordered fines and costs could be criminal in nature. But because the parties agree the contempt is civil in nature and have not argued otherwise, we decline to define the underlying contempt order … The issue of whether a contempt proceeding for failure to pay court-ordered fines and costs is civil or criminal is not properly before this Court.

191 A.3d at 855 n.6.  In other words, the court essentially held the label on the proceeding was meaningless in determining the right to counsel, which was precisely the point made in our amicus brief.