Commonwealth v. Lopez

• Decision Date: 16 August 2022
• Docket Number: 27 EAP 2021,No. 27 EAP 2021
• Citation: 280 A.3d 887
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Alexis LOPEZ, Appellant
• Court: Pennsylvania Supreme Court

280 A.3d 887

COMMONWEALTH of Pennsylvania, Appellee

v.Alexis LOPEZ, Appellant

No. 27 EAP 2021

Supreme Court of Pennsylvania.

Argued: March 9, 2022

Decided: August 16, 2022

Cheryl Ann Brooks, Esq., Aaron Joshua Marcus, Esq., Leonard Sosnov, Esq., Alan J. Tauber, Esq., Defender Association of Philadelphia, for Appellant.

Lee B. Awbrey, Esq., Delaware County Public Defender's Office, for Appellant Amici Curiae Public Defender Association of Pennsylvania, Pennsylvania Association of Criminal Defense Lawyers.

Jennifer Lynn Beidel, Esq., John Albert Marty III, Esq., Saul Ewing Arnstein & Lehr LLP, for Appellant Amicus Curiae Pennsylvanians for Modern Courts.

Andrew Chapman Christy, Esq., Connor Pearse Hayes, Esq., Richard Tsai Ting, Esq., ACLU of Pennsylvania, for Appellant Amici Curiae Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, ACLU of Pennsylvania.

Sarah Marie Coyle, Esq., Taylor Elizabeth Pacheco, Esq., Philadelphia Lawyers for Social Equity, for Appellant Amicus Curiae Philadelphia Lawyers for Social Equity.

Jean Wilson Galbraith, Esq., for Appellant Amicus Curiae Law Professors Beth A. Colgan and Jean Galbraith.

M. Norman Goldberger, Esq., Heath Khan, Esq., Ballard Spahr, LLP, for Appellant Amici Curiae The Fines and Fees Justice Center, The Cato Institute.

Jamie MacKenzie Gullen, Esq., Community Legal Services of Philadelphia, for Appellant Amicus Curiae Community Legal Services.

Sara E. Jacobson, Esq., Public Defenders Association of PA and PA Association of Criminal Defense Lawyers, for Appellant Amicus Curiae Public Defender Association of Pennsylvania.

Brad Renard Korinski, Esq., Office of the Controller Allegheny County, for Appellant Amicus Curiae Office of the Controller of Allegheny County.

Peter E. Kratsa, Esq., MacElree Harvey, Ltd., for Appellant Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

Max Walter Laun, Esq., Arlene A. Marshall-Hockensmith, Esq., Pennsylvania Legal Aid Network, Inc., for Appellant Amicus Curiae Pennsylvania Legal Aid Network.

James Christopher Martin, Esq., Oluwaseyi A. Odunaiya, Esq., Robert Jennings Tritschler, Esq., Reed Smith LLP, for Appellant Amicus Curiae Office of the Controller of Allegheny County.

Emily Patricia Daly, Esq., Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office, Andrew Joseph Greer, Esq., Philadelphia District Attorney's Office of Open Records, for Appellee Commonwealth of Pennsylvania.

Benjamin Reid Barnett, Esq., Dechert LLP, for Appellee Amici Curiae The Pennsylvania Coalition Against Domestic Violence, Women's Law Project.

Justin Michael Kadoura, Esq., Friedrich Wilhelm W. Sachse, Esq., Katherine Elizabeth Unger, Esq., Dechert LLP, for Appellee Amici Curiae The Pennsylvania Coalition Against Domestic Violence, Women's Law Project, Women's Resource Center.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to consider whether Pennsylvania Rule of Criminal Procedure 706(C) requires a trial court to consider a defendant's ability to pay prior to imposing mandatory court costs at sentencing.¹ We hold it does not, and affirm the Superior Court.

I.

On June 30, 2015, Lopez entered a negotiated guilty plea to possession with intent to deliver a controlled substance. The trial court sentenced him to eleven and one-half to twenty-three months' imprisonment, followed by three years' probation. Six months later, the trial court granted Lopez's motion for early release on parole. Thereafter, Lopez violated the terms of his supervision three times. Prior to resentencing for his third violation, Lopez filed a "Motion for Ability-to-Pay Hearing at Sentencing to Waive Costs." His motion contended "Pennsylvania statutes and the Rules of Criminal Procedure require that this [c]ourt consider [his] ability to pay and waive court costs due to his indigence and the burden the costs would impose on him." Motion for Ability-to-Pay Hearing at Sentencing to Waive Costs, 4/20/2018 at 2. On April 27, 2018, the trial court denied the motion and sentenced Lopez to six to twenty-three months' imprisonment, with immediate parole, followed by two years' probation. In addition, the court ordered Lopez to pay $1,695.94 in mandatory court costs.

Lopez appealed, and his statement of errors complained of on appeal asserted, in pertinent part, "[a]t sentencing the court erred by imposing costs without making a mandated determination under Pa.R.Crim.P. 706(C) and 42 Pa.C.S. § 9728(b.2) of whether this long time [sic] indigent defendant had the ability to pay the court costs." Statement of Errors Complained of on Appeal, 6/7/2018 at 1. In its opinion, the trial court responded this claim was "refuted" by Commonwealth v. Childs , 63 A.3d 323, 325 (Pa. Super. 2013), which held Rule 706 did not require the trial court to consider the defendant's ability to pay before imposing costs. Commonwealth v. Lopez , No. CP-51-CR-4377-2015, unpublished opinion at 2-3 (C.P. Philadelphia County filed Jul. 16, 2018) (Trial Court Opinion). The trial court disagreed with Lopez's argument Childs was inconsistent with Commonwealth v. Martin , 233 Pa.Super. 231, 335 A.2d 424 (1975) (en banc ). The court reasoned Martin "addressed the sole issue of whether the trial court could impose a fine without considering ability to pay[, and] [t]here were no issues before the court regarding the legality of imposing mandatory costs or supervision fees without an ability-to-pay hearing." Trial Court Op. at 3 (emphasis in original). Accordingly, the trial court concluded it was bound by Childs .

The Superior Court affirmed Lopez's judgment of sentence in a split, published en banc decision.² See Commonwealth v. Lopez , 248 A.3d 589 (Pa. Super. 2021) (en banc ). The en banc panel held: "[w]hen the sections of Rule 706 are read sequentially and as a whole, as the rules of statutory construction direct, it becomes clear that Section C only requires a trial court to determine a defendant's ability to pay at a hearing that occurs prior to incarceration, as referenced in Sections A and B." Id. at 592 ; see also id. at 593 ("Section C, when read in context with its surrounding sections, only requires a court to determine a defendant's ability to pay before incarceration for delinquency, not before the imposition of all financial obligations at sentencing."). The panel noted its holding was consistent with Commonwealth v. Ciptak , 441 Pa.Super. 534, 657 A.2d 1296 (1995) (per Hoffman, J., with two judges concurring in result), rev'd on other grounds , 542 Pa. 112, 665 A.2d 1161 (1995). The panel also noted this Court "had the opportunity to explicitly repudiate" Ciptak "when renumbering Rule 1407 as Rule 706 and it did not do so." Id. at 593.³ On the contrary, the panel asserted, this Court recently indicated its agreement with Ciptak when it stated: " ‘[a]lthough a presentence ability-to-pay hearing is not required when costs alone are imposed, our Rules of Criminal Procedure provide that a defendant cannot be committed to prison for failure to pay a fine or costs unless the court first determines that he or she has the financial means to pay.’ " Id. at 593-94, quoting Commonwealth v. Ford , 655 Pa. 255, 217 A.3d 824, 827 n.6 (2019) (emphasis in original).

The panel rejected Lopez's arguments Section 9721(c.1) and Section 9728(b.2) of the Sentencing Code require the sentencing court to consider the ability to pay before imposing mandatory costs. See id. at 594, citing 42 Pa.C.S. §§ 9721(c.1), 9728(b.2). In this regard, the panel reasoned that while both statutes reference Rule 706(C), these references do not place an affirmative duty on a sentencing court to hold an ability-to-pay hearing prior to imposing mandatory costs upon a defendant. "Rather," the panel ruled, "when read in the context of the mandate to impose costs, those references merely make it clear that even though the imposition of court costs upon a defendant is mandatory, the defendant remains entitled to an ability-to-pay hearing before being imprisoned for defaulting on those mandatory costs." Id. The panel expressed the view its interpretation of Sections 9721(c.1) and 9728(b.2), and Rule 706 "most closely aligns" with the single case cited in the Comment to Rule 706, Commonwealth ex rel. Benedict v. Cliff , 451 Pa. 427, 304 A.2d 158 (1973). Id. In that case, the panel recounted, this Court held a defendant has the constitutional right to an opportunity to show he cannot afford a fine or costs prior to being incarcerated for nonpayment. See id. , citing Benedict , 304 A.2d at 161. The panel concluded the trial court properly relied on Childs , and agreed with the trial court's determination Childs is not inconsistent with the en banc decision in Martin because Martin involved the imposition of a fine rather than mandatory court costs. Finally, the panel emphasized its opinion should not be construed to strip the trial court of the discretion to conduct an ability-to-pay hearing at sentencing, but instead should simply be understood to not require a hearing "unless and until a defendant is in peril of going to prison for failing to pay the costs imposed on him." Id. at 595.

In Judge Dubow's concurring and dissenting opinion, she agreed with the majority's implicit determination the trial court has the authority to consider a motion to waive costs at sentencing. She disagreed, however, with the majority's holding that if a motion to waive costs is filed, the trial court has the discretion to decide whether or not to consider evidence regarding the motion. In her view, "the trial court must hold a hearing" in this context. Id. at 598 (Dubow, J., concurring in part). Judge Dubow also expressed her disagreement with Childs , and indicated she would expressly overrule it. Specifically, she argued Childs "misread" Sections 9721(c.1) and 9728(b.2), which she construed to provide the trial court with the authority to consider a motion to waive court ...