Com. v. McNelis, K.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : :

KELLYANN MCNELIS : :

Appellant : No. 983 EDA 2020 Appeal from the Judgment of Sentence Entered February 21, 2020 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006202-2019

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 02, 2021 Kellyann McNelis appeals from the judgment of sentence, imposed in the Court of Common Pleas of Montgomery County, after she entered a negotiated guilty plea to driving under the influence. In accordance with the plea agreement, the trial court sentenced McNelis to a maximum term of six months’ incarceration, with credit for time served, plus a mandatory fine of $300. McNelis was also ordered to pay costs of prosecution and supervision fees. McNelis filed a post-sentence motion seeking relief from the imposition of costs, which the trial court denied on February 25, 2020, without a hearing. On April 6, 2020, McNelis filed a notice of appeal to this Court.1 Both McNelis and the trial court have complied with Pa.R.A.P. 1925. McNelis’ sole claim on appeal challenges the trial court’s imposition of the costs of prosecution and supervision fees without first holding a hearing to consider her ability, as an indigent person, to pay those costs. She is entitled to no relief.

On March 23, 2021, this Court issued its decision in Commonwealth v. Lopez, 248 A.3d 589 (Pa. Super. 2021) (en banc). Like McNelis, Lopez challenged the trial court’s imposition of mandatory court costs without first holding a hearing to determine his ability to pay, asserting that such a hearing is required under Pa.R.Crim.P. 706(c)2 and Commonwealth v. Martin, 335

J-S05022-21 A.2d 424 (Pa. Super. 1975) (en banc) (holding court must hold ability-to-pay hearing when imposing fine), as well as sections 9721(c.1) and 9728(b.2) of the Sentencing Code.3 See 42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2). In rejecting Lopez’s claim, this Court concluded that “[w]hen the sections of Rule are read sequentially and as a whole, as the rules of statutory construction direct, it becomes clear that [s]ection 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 [s]ections A and B.” Lopez, supra at 592. While the trial court maintains the discretion to conduct an ability-to-pay hearing prior to imposing costs, “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.” Id. at 595. Accordingly, McNelis is entitled to no relief.

McNelis also contests the court’s imposition of probation supervision fees4 without first determining her ability to pay. In Commonwealth v.

White, _ A.3d _, 1310 EDA 2020 (Pa. Super. 2021), this Court recently addressed an identical claim and concluded that no ability-to-pay determination is required prior to the imposition of mandatory fees of supervision. The Court reasoned: [S]imilar to the holding in Lopez, while a court is required to impose the fee upon a defendant who is placed under the supervision of a county probation department, a court may determine that, due to a defendant’s inability to pay, the fee should be reduced, waived, or deferred. Notably, neither statute requires a court to first make a determination regarding a defendant’s ability to pay before imposing the fee. Merely because a court has the discretion to waive the fee, does not mean that it abuses its discretion if it chooses not to do so. Id. at 6. Accordingly, McNelis is entitled to no relief on this basis as well.

Judgment of sentence affirmed.

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(8) Other extenuating circumstances as determined by the court or a supervising agency designated by the court. 37 Pa. Code § 68.21 (emphasis added). Under 18 P.S. § 11.1102, the offender supervision fee is mandatory “unless the court finds that the fee should be reduced, waived or deferred based on the offender’s present inability to pay.” Id. at § 11.1102(c); see also § 11.1102(e)(1) (“[T]he fee shall automatically become a part of the supervision conditions [of probation] . . . unless the court [] makes a finding that the offender is presently unable to pay” based on six enumerated factors set forth in section 11.1102(e)(2)(i-vi).).

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2021