Commonwealth v. Lopez, 1313 EDA 2018

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY PANELLA, P.J.
• Citation: 248 A.3d 589
• Parties: COMMONWEALTH of Pennsylvania v. Alexis LOPEZ, Appellant
• Docket Number: No. 1313 EDA 2018,1313 EDA 2018
• Decision Date: 23 March 2021

248 A.3d 589

COMMONWEALTH of Pennsylvania
v.
Alexis LOPEZ, Appellant

No. 1313 EDA 2018

Superior Court of Pennsylvania.

Argued June 3, 2020
Filed March 23, 2021

Leonard Sosnov, Philadelphia, for appellant.

Emily Patricia Daly, Philadelphia, for appellee.

BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY PANELLA, P.J.:

Appellant, Alexis Lopez, appeals from his April 27, 2018 judgment of sentence, which included the imposition of mandatory court costs. Appellant argues that he was entitled to a hearing under Pa.R.Crim.P. 706(C) to determine his ability to pay those court costs before the court imposed them at sentencing. We disagree. Instead, we hold that while a trial court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendant faces incarceration for failure to pay court costs previously imposed on him. We therefore affirm Appellant's judgment of sentence.

248 A.3d 591

This appeal implicates the interpretation of the Rules of Criminal Procedure, which presents a question of law. Therefore, our standard of review is de novo , and our scope of review is plenary. See Commonwealth v. Dowling , 598 Pa. 611, 959 A.2d 910, 913 (2008).

The judgment of sentence underlying this appeal was entered following the revocation of Appellant's probation. Appellant originally pled guilty to one count of possession with intent to deliver a controlled substance. The trial court sentenced Appellant to 11½ to 23 months’ incarceration, to be followed by three years of probation. On December 30, 2015, the trial court granted Appellant parole.

Appellant serially violated his parole. At Appellant's last probation and parole violation hearing on January 18, 2018, the court found Appellant in technical violation of his probation and revoked it. The court deferred resentencing and scheduled a resentencing hearing that was eventually held on April 27, 2018.

Prior to that resentencing hearing, Appellant filed a Motion for Ability-to-Pay Hearing at Sentencing to Waive Costs, in which he argued that the trial court was required to hold a hearing on his ability to pay before the court could impose mandatory court costs. Specifically, in the motion, Appellant maintained that Rule 706(C), along with Sections 9721(c.1) and 9728(b.2) of the Sentencing Code, mandated that the court hold an ability-to-pay hearing before imposing court costs at sentencing. See Pa.R.A.P. 706(C); 42 Pa.C.S.A. §§ 9721(c.1), 9728(b.2).

The trial court heard arguments on the legal issues raised by Appellant's Motion for Ability-to-Pay Hearing at the resentencing hearing on April 27, 2018. Following the arguments, the court denied the motion, stating that it was not going to "start a court-wide practice of not imposing costs without having a hearing" when it was not required to do so by "current Superior Court law." N.T., 4/27/18, at 19. The court also denied the oral request Appellant made at the hearing to waive his probation supervision fees.

The court then resentenced Appellant to six to 23 months’ incarceration, with immediate parole, to be followed by two years of probation. It also imposed $1695.94 in mandatory court costs.

Appellant filed a notice of appeal and subsequently complied with the court's directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In response, the court issued a Pa.R.A.P. 1925(a) opinion. In the opinion, the court first explained that it had denied Appellant's Motion for Ability-to-Pay Hearing because it was simply not required to hold such a hearing prior to imposing court costs under the clear dictates of this Court's decision in Commonwealth v. Childs , 63 A.3d 323, 326 (Pa. Super. 2013) (holding that Rule 706 only requires a trial court to hold an ability-to-pay hearing when a defendant risks incarceration for failing to pay court costs). The court also explained that it had denied Appellant's oral motion to waive probation supervision fees because of the Philadelphia Court of Common Pleas’ informal policy not to waive supervision fees unless that waiver was requested by the Probation Department. The court noted that such a policy was also consistent with Childs .

In his appeal, Appellant first argues that the court erred by denying his Motion for Ability-to-Pay Hearing because Section C of Rule 706 obliges a sentencing court to conduct an ability-to-pay hearing before imposing court costs on a defendant at sentencing. Specifically, Appellant argues that "[w]hile other sections of [ Rule 706 ] provide for the procedures in case of

248 A.3d 592

a subsequent default, Section C ... unambiguously requires that a court consider a defendant's ability to pay when it imposes costs." Appellant's Brief at 6, 8 (capitalization of certain words omitted). We do not agree with Appellant that Section C can be read in isolation from the rest of Rule 706. As a result, we conclude that Rule 706 does not impose a requirement that a court hold an ability-to-pay hearing before imposing court costs on the defendant at sentencing.

Rule 706, as with all Rules of Criminal Procedure, is to be construed in accordance with the rules of statutory construction to the extent possible. See Pa.R.Crim.P. 101(c). Our Supreme Court has made clear that all sections of a statute must be read together and in conjunction with each other and must be construed with reference to the entire statute. See Trust Under Agreement of Taylor , 640 Pa. 629, 164 A.3d 1147, 1155 (2017). As this mandate applies equally to Rule 706, and all of its sections, it is critical to look at the Rule in its entirety. To that end, Rule 706 provides:

(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.

(B) When the court determines, after hearing, that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the court may provide for payment of the fines or costs in such installments and over such period of time as it deems to be just and practicable, taking into account the financial resources of the defendant and the nature of the burden its payments will impose, as set forth in paragraph (D) below.

(C) The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of the defendant's financial means, including the defendant's ability to make restitution or reparations.

(D) In cases in which the court has ordered payment of a fine or costs in installments, the defendant may request a rehearing on the payment schedule when the defendant is in default of a payment or when the defendant advises the court that such default is imminent. At such hearing, the burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule. Thereupon the court may extend or accelerate the payment schedule or leave it unaltered, as the court finds to be just and practicable under the circumstances of record. When there has been default and the court finds the defendant is not indigent, the court may impose imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706.

When 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. To be sure, this Court reached this very conclusion in Commonwealth v. Ciptak , 441 Pa.Super. 534, 657 A.2d 1296 (1995), reversed on other grounds , 542 Pa. 112, 665 A.2d 1161 (1995). There, in rejecting the defendant's claim that Pa.R.Crim.P. 1407(c), the predecessor to

248 A.3d 593

Rule 706,¹ required the sentencing court to determine his ability to pay prior to imposing costs at sentencing, our Court explained:

[T]he rules of statutory construction indicate that Pa.R.Crim.P. 1407 deals in its entirety with a defendant's default from payment of a fine or the costs of prosecution . Rule 1407(a) ... precludes a court from imprisoning a defendant for failure to pay a fine or costs unless, following a hearing, the court determines that the defendant is capable of paying the sums due. In part (b), the [Rule] goes on to outline the forms of relief that the court may provide where it determines that the defendant lacks the financial means to pay the sums due, immediately or in a single remittance. The final provision of the [Rule], part (d), outlines the steps to be taken after the court has granted the defendant relief in the form of an installment payment plan if the defendant finds himself again in default or believes that default is imminent.

As the provisions of the [Rule] which precede and follow Pa.R.Crim.P. 1407(c) set forth [the] procedure regarding default on payment of costs or fines, we can only conclude that Pa.R.Crim.P. 1407(c) addresses the standard which the

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