248 A.3d 589
Pa. Super. Ct.2021Background
- Lopez pled guilty to possession with intent to deliver, was sentenced to 11½–23 months plus 3 years’ probation, and was paroled in 2015.
- He repeatedly violated parole; at a 2018 revocation/resentencing he was found in technical violation and resentenced on April 27, 2018.
- Before resentencing Lopez filed a motion requesting an ability-to-pay hearing under Pa.R.Crim.P. 706(C) to avoid mandatory court costs.
- The trial court denied the motion (stating no court-wide practice to waive costs absent controlling law), refused to waive supervision fees based on a local policy, and imposed mandatory costs of $1,695.94.
- Lopez appealed, arguing Rule 706(C) and Sentencing Code provisions required a presentence ability-to-pay hearing before imposing costs; the trial court relied principally on Commonwealth v. Childs in denying relief.
- The Superior Court affirmed, holding Rule 706 does not mandate a presentence ability-to-pay hearing unless the defendant faces incarceration for nonpayment; the supervision-fee claim was waived for failure to preserve.
Issues
| Issue | Lopez's Argument | Commonwealth/Trial Court's Argument | Held |
|---|---|---|---|
| Does Pa.R.Crim.P. 706(C) require an ability-to-pay hearing before imposing court costs at sentencing? | 706(C) and related Sentencing Code §§ 9721(c.1), 9728(b.2) unambiguously require the court to consider ability to pay when imposing mandatory costs at sentencing. | Rule 706 must be read as a whole: its hearing requirement applies when a defendant risks incarceration for nonpayment; court may but is not required to hold a presentence hearing. | Court held Rule 706 does not require a presentence ability-to-pay hearing; hearing required only before incarcerating for nonpayment. Affirmed. |
| Did the trial court err by refusing to waive probation supervision fees based on local policy? | Trial court’s policy barring waivers unless requested by Probation Dept. improperly prevented waiver. | The court applied a local practice for supervision fees; issue was not preserved in the Pa.R.A.P. 1925(b) statement. | Claim waived for failure to raise in Rule 1925(b); court did not rule on merits. |
Key Cases Cited
- Commonwealth v. Childs, 63 A.3d 323 (Pa. Super. 2013) (Rule 706 requires a hearing only before any order directing incarceration for failure to pay costs)
- Commonwealth v. Ciptak, 657 A.2d 1296 (Pa. Super. 1995) (Rule 1407/706 construed to address default proceedings; ability-to-pay hearing tied to default/incarceration)
- Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019) (observing presentence ability-to-pay hearing is not required when costs alone are imposed)
- Commonwealth ex rel. Benedict v. Cliff, 304 A.2d 158 (Pa. 1973) (constitutional right to opportunity to show inability to pay before imprisonment for nonpayment)
- Commonwealth v. Martin, 335 A.2d 424 (Pa. Super. 1975) (addressed imposition of fines without consideration of ability to pay)
- Commonwealth v. Dowling, 959 A.2d 910 (Pa. 2008) (de novo review applies to questions of law interpreting procedural rules)