Com. v. White, M.

2021 PA Super 86

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

v. :

: :

MICHAEL WHITE :

:

Appellant : No. 1310 EDA 2020 Appeal from the Judgment of Sentence Entered January 9, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0007803-2018

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

OPINION BY LAZARUS, J.: FILED MAY 05, 2021

Michael White appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after he was convicted by a jury of tampering with evidence.1 On appeal, he contends that the court costs and supervision fees he was ordered to pay should have been reduced or waived based on his financial means and ability to pay. After careful review, we affirm.

Following his conviction, the court sentenced White to two years of probation and ordered him to pay $399.75 in court costs, which includes probation supervision fees. At sentencing, White’s attorney asked the court “to waive any courts costs and probation supervision fees[,]” arguing that White “has limited funds.” N.T. Sentencing, 1/9/20, at 28-29. The trial judge, the Honorable Glenn B. Bronson, denied the request, noting the “matter was before the Superior Court”2 and that he believed “costs are mandatory and required to be imposed.” Id. at 29. The trial judge also upheld the supervision fees, noting “I’ll follow the practice in our court which is not to waive the supervision fees. They’re minimal, in any event.” Id. White filed a timely post-sentence motion, again raising the issue of whether the court erred in imposing court costs and probation supervision fees “without further hearing or inquiry into [White’s] ability to pay.” Post-Sentence Motion, 1/13/20, at 1. On June 9, 2020, the trial court denied the motion without a hearing. See Order, 6/9/20.

White filed a timely notice of appeal3 and original and supplemental4 Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal. White presents one issue for our consideration: “Was not [White] entitled to a determination at sentencing of whether costs should be reduced or waived based on his financial means and inability to pay?” Appellant’s Brief, at 3.

On March 23, 2021, this Court issued its decision in Commonwealth v. Lopez, 2021 PA Super 51 (Pa. Super. 2021) (en banc). Like White, 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)5 and Commonwealth v. Martin, 335 J-S05030-21 A.2d 424 (Pa. Super. 1975) (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.6 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 706 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 *5. 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 *11. Accordingly, White is entitled to no relief on his claim regarding costs.

White also contests the court’s imposition of probation supervision fees without first determining his ability to pay. In addition to costs, a court can impose, as a condition of supervision, a monthly fee for administrative expenses attendant to offender supervision programs. Commonwealth v. Nicely, 638 A.2d 213 (Pa. 1994). The fee applies to offenders who have been placed under the supervision of a county probation department or the Pennsylvania Board of Probation and Parole. See 37 Pa. Code § 68.21 (Imposition of Condition); see also 18 P.S. § 11.1102(c) (Costs for offender supervision programs).

Pursuant to 37 Pa. Code § 68.21:

The sentencing judge of the court of common pleas shall impose upon an offender, as a condition of supervision, a monthly supervision fee unless the court or a supervising agency designated by the court determines that it should be reduced, waived or deferred based upon one or more of the following criteria:

(1) The offender is 62 years of age or older with no income. (2) The offender is receiving public assistance. (3) The offender is enrolled as a full-time student for 12 semester credit hours in an educational organization approved by the United States Department of Education. (4) The offender is incarcerated. (5) The offender is not employable due to a disability, as determined by an examination acceptable to or ordered by the court. (6) The offender is responsible for the support of dependents and the payment of a supervision fee constitutes an undue hardship on the offender. (7) The client is participating in an inpatient treatment program. (8) Other extenuating circumstances as determined by the court or a supervising agency designated by the court.

37 Pa. Code § 68.21 (emphasis added). Moreover, 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) (“the 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)). Thus, similar 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. Thus, White is entitled to no relief on this basis as well.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 5/5/2021