Pa.R.Crim.P. 706(C); Consideration of a Defendant’s Ability to Pay prior to Imposing Mandatory Court Costs
Commonwealth v. Lopez, 248 A.3d 589 (Pa. Super. 2021) (en banc), allocatur granted Aug. 24, 2021, appeal docket 27 EAP 2021
Alexis Lopez appealed from a judgment of sentence whereby the trial court imposed mandatory court costs without first considering Lopez’s ability to pay. Lopez contended he was entitled to a hearing under Pa.R.Crim.P. 706(C) to determine his ability to pay those court costs before they were imposed at sentencing. Lopez argued that, while other sections of Rule 706 provide for the procedures in case of a subsequent default, Section C requires that a court consider a defendant’s ability to pay when it imposes costs. Rule 706 provides in full:
(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.
Lopez further relied on Sections 9721(c.1) and 9728(b.2) of the Sentencing Code, which reference Rule 706(C) as mandating the procedure provided by Rule 706(C). Section 9721(c.1) provides:
(c.1) Mandatory Payment of Costs.–Notwithstanding the provisions of Section 9728 (relating to collection of restitution, reparation, fees, costs, fines and penalties) or any provision of the law to the contrary, in addition to the alternatives set forth in subsection (a), the court shall order the defendant to pay costs. In the event the court fails to issue an order for costs pursuant to section 9728, costs shall be imposed upon the defendant under this section. No court order shall be necessary for the defendant to incur liability for costs under this section. The provisions of this subsection do not alter the court’s discretion under Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
42 Pa.C.S.A. § 9721(c.1). Section 9728(b.2) provides:
(b.2) Mandatory Payment of Costs.–Notwithstanding any provision of law to the contrary, in the event the court fails to issue an order under subsection(a) imposing costs upon the defendant, the defendant shall nevertheless be liable for costs, as provided in section 9721(c.1), unless the court determines otherwise pursuant to Pa.R.Crim.P No. 706(C) (relating to fines or costs). The absence of a court order shall not affect the applicability of the provisions of this section.
42 Pa.C.S.A. § 9728(b.2).
The trial court reasoned that it was not required to hold an ability-to-pay hearing on the basis of Superior Court’s decision in Commonwealth v. Childs, 63 A.3d 323 (Pa. Super. 2013), in which Superior Court held that while Rule 706 “permits a defendant to demonstrate financial inability either after a default hearing or when costs are initially ordered to be paid in installments,’ the Rule only requires such a hearing prior to any order directing incarceration for failure to pay the ordered costs.” Slip op. at 10, quoting Childs, 63 A.3d at 326 (emphasis in original) (citation omitted by Superior Court). Lopez countered that reliance on Childs was improper because it is inconsistent with Superior Court’s en banc decision in Commonwealth v. Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc) in which the court held that the trial court could not impose a fine without considering the defendant’s ability to pay. The trial court rejected this argument, concluding that:
[I]n Martin, the Superior Court addressed the sole issue of whether the trial court could impose a fine without considering ability to pay. There were no issues before the court regarding the legality of imposing mandatory costs … without an ability-to-pay hearing. Accordingly, the holding of the Superior Court in Childs is not inconsistent with the en banc decision in Martin.
Slip op. at 10, quoting Trial Court Opinion (emphasis in original).
Superior Court affirmed the judgment of sentence and held 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. Superior Court reasoned that “[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.” Slip op. at 5. The court further concluded that Sections 9721(c.1) and 9728(b.2) reference to Rule 706(C) “in no way places an affirmative duty on a sentencing court to hold an ability-to-pay hearing prior to imposing mandatory costs upon a defendant.” Slip op. at 9. “Rather,” Superior Court explained, “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. In reaching its holding, Superior Court agreed with the trial court’s application of Martin and expressly reaffirmed Childs’ holding that a defendant is not entitled to an ability-to-pay hearing before a court imposes court costs at sentencing. Superior Court then clarified that:
…nothing in this opinion is meant to strip the trial court of its ability to exercise its discretion to conduct such a hearing at sentencing. There is no doubt that it is the trial court, and not this Court, which is in the best position to evaluate its own docket and schedule this hearing. We merely hold that nothing in the Rules of Criminal Procedure, the Sentencing Code or established case law takes that discretion away from the trial court unless and until a defendant is in peril of going to prison for failing to pay the costs imposed on him. It is only at that point that the mandate for an ability-to-pay hearing arises. Because Appellant had not yet been threatened with incarceration as a result of a default, we hold that the trial court did not err by imposing mandatory court costs upon Appellant without first holding an ability-to-pay hearing.
Slip op. at 10-11.
In a concurring and dissenting opinion (Dissent slip op.) joined by Judge Kunselman, Judge Dubow agreed with the conclusion that the trial court has discretion to decide whether to hold a hearing when a defendant at sentencing files a Motion to Waive Costs and the implicit result that the trial court has the authority to consider a Motion to Waive Court Costs at sentencing. However, Judge Dubow disagreed with the statutory analysis in Childs “because it reads into the relevant provisions of the Sentencing Code a subsection of Pa.R.Crim.P. 706 to which the legislature did not refer,” further reasoning that:
The statutory analysis regarding whether the trial court has the authority to consider a Motion to Waive Costs at sentencing begins with 42 Pa.C.S. §§ 9721(c.1) and 9728(b.2). Specifically, Section 9721(c.1) of the Sentencing Code requires the trial court to, inter alia, impose court costs upon a defendant at sentencing. “The court shall order the defendant to pay costs.” 42 Pa.C.S. § 9721(c.1). In this same section, however, the Legislature provides an exception to the mandatory imposition of costs by referring to the trial court’s discretion to modify the amount of costs according to the procedure set forth in Pa.R.Crim.P. 706(C). Relevantly, Section 9721(c.1) provides:
In the event the court fails to issue an order for costs pursuant to section 9728, costs shall be imposed upon the defendant under this section. No court order shall be necessary for the defendant to incur liability for costs under this section. The provisions of this subsection do not alter the court’s discretion under Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
Id. (emphasis added).
Section 9728(b.2) also authorizes the trial court to modify the amount of costs when imposing them and directs the trial court to the procedure it should follow when deciding whether to modify costs. This section first provides that, “[n]otwithstanding any provision of law to the contrary … the defendant shall [ ] be liable for costs … unless the court determines otherwise pursuant to Pa.R.Crim.P. [ ] 706(C).” 42 Pa.C.S § 9728(b.2) (emphasis added). In other words, the Legislature, by stating that the defendant shall be liable for costs “unless the court determines otherwise,” provides the trial court with the authority to determine whether a defendant should pay costs.
Section 9728(b.2) further provides the procedure that the trial court should follow to determine whether the trial court should modify the amount of costs: “the defendant shall [ ] be liable for costs … unless the court determines otherwise pursuant to Pa.R.Crim.P. [ ] 706(C).” 42 Pa.C.S § 9728(b.2)(emphasis added). In other words, the trial court, in determining whether a defendant shall be liable for costs, should follow the procedure set forth in Pa.R.Crim.P. 706(C).
Pa.R.Crim.P. 706(C) provides that “[t]he 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 reasons of the defendant’s financial means[.]” Pa.R.Crim.P. 706(C) (emphasis added).
This interpretation is consistent with the legislative history from 2010 when the Legislature added Section 9721(c.1) to the Sentencing Code. After amending this section to make the imposition of costs automatic even if the trial court fails to include the costs in its sentencing order, the Legislature emphasized that “a court would retain all discretion to modify or even waive costs in an appropriate case, pursuant to Pa.R.Crim.P. 706(C).” House of Representatives Democratic Committee Analysis, Bill No. SB1169, September 15, 2010. The legislative history also showed that the new Section 9728 “accomplishes the same goal as to the statute specifically addressing the imposition of costs, restitution and other matters collateral to sentencing.” Once again, the Legislature made clear that it was inserting the “same exception under criminal rule 706(C).” Id.
Thus, when read together, these sections provide the trial court with the authority to consider a Motion to Waive Court Costs at sentencing and provide the procedure the trial court must follow to determine an amount that is “just and practicable.”
Dissent slip op. at 3-6. Based on this analysis, the dissent would “expressly overrule Childs” because:
The three judge panel in Childs, however, misread these statutory provisions when it concluded that the trial court may only consider a Motion to Waive Costs when the defendant is at risk of being incarcerated for failing to pay the court costs imposed at sentencing. Although the Legislature only referred to Pa.R.Crim.P. 706(C) for setting forth the procedure for considering a Motion to Modify Costs, the Childs court incorporated 706(A) into its analysis. It is Rule 706(A) that limits the trial court’s authority to determine a Motion to Waive Costs to those situations in which the defendant is at risk of being incarcerated for failing to pay costs. “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 cost.” Pa.R.Crim.P. 706(A). Since the Legislature did not refer to Rule 706(A), but only to Rule 706(C), the Legislature did not intend to limit the trial court’s authority to those instances when the defendant is at risk of incarceration for failing to pay court costs.
Additionally, the three-judge panel in Childs mistakenly relied on dicta in Commonwealth v. Hernandez, 917 A.2d 332 (Pa. Super. 2007), and on Hernandez’s interpretation of 42 Pa.C.S. §§ 9721 and 9728—an interpretation that preceded the Legislature’s 2010 amendments to those provisions that, as discussed above, did not place a limitation on the proceeding at which the trial court can consider a Motion to Waive Costs.
Dissent slip op. at 6-7. Thus, the dissent would hold:
…since Appellant filed a Motion to Waive Costs at sentencing and the Sentencing Code authorizes the trial court to decide a Motion to Waive Costs at sentencing and requires the trial court to follow the procedure set forth in Pa.R.Crim.P. 706(C), the trial court must hold a hearing. Pa.R.Crim.P. 706(C) requires the trial court to consider “the burden upon the defendant by reason of the defendant’s financial means” to determine the “manner and method of the payment of a fine or cost” and set an amount that is “just and practicable.” The defendant’s financial means is a factual question and the trial court must hold a hearing to receive this evidence. Without evidence of the defendant’s financial means, the trial court cannot determine whether it is appropriate to modify the amount of court costs and decide the Motion to Waive Costs.
Dissent slip op. at 7-8.
The Supreme Court granted allocatur as to the following issue:
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?
For more information, contact Kevin McKeon or Dennis Whitaker.