Com. v. Strunk, T.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : :

TONI STRUNK : :

Appellant : No. 1072 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-0007314-2019

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

MEMORANDUM BY LAZARUS, J.: FILED MAY 18, 2021 Toni Strunk appeals from the judgment of sentence, entered in the Court of Common Pleas of Montgomery County, after she entered a negotiated guilty plea to possessing methamphetamine and Clonazepam, controlled substances.1

On February 21, 2020, in accordance with the plea agreement, the trial court sentenced Strunk to one year of probation without a verdict, 2 and ordered her to undergo probation and parole intervention and comply with the resultant treatment recommendations, plus a fine of $25, costs of prosecution, and supervision fees.3 The court ultimately waived the supervision fees. Strunk filed a post-sentence motion seeking relief from the imposition of fines and costs on February 24, 2020, which the trial court denied on February 25, 2020, without a hearing. On April 8, 2020, Strunk filed a notice of appeal.4 Both Strunk and the trial court have complied with Pa.R.A.P. 1925. Strunk’s claim on appeal challenges the trial court’s imposition of the costs of prosecution, as well as the non-mandatory fine, without first holding a hearing to consider her ability, as an indigent person, to pay the costs and fine.5 After careful review, we affirm Strunk’s judgment of sentence, but remand for resentencing because the court failed to ascertain Strunk’s present or future ability to pay the non-mandatory fine it imposed.

On March 23, 2021, this Court issued its decision in Commonwealth v. Lopez, _ A.3d _, 2021 PA Super 51 (Pa. Super. 2021) (en banc). Like Strunk, 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)6 and Commonwealth v. Martin, 335 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. See 42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2).7

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 (citing Trust Under Agreement of Taylor, 164 A.3d 1147, 1155 (Pa. 2017)); 1 Pa.C.S.A. § 1922(2). 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, Strunk is entitled to no relief on her claim that the court was required to ascertain her ability to pay the costs of prosecution prior to imposition.

By contrast, Strunk was entitled to the court’s inquiry on her ability to pay the non-mandatory $25 fine. In Commonwealth v. Snyder, 2021 PA ____________________________________________

7Sections 9721(c.1) and 9728(b.2) make the payment of costs by a defendant mandatory even in the absence of a court order requiring such payment unless, in the exercise of its discretion, the court determines otherwise pursuant to Rule 706(C).

Super 63 (Pa. Super. filed 4/9/21), this Court, in interpreting the language of Pa.C.S.A. § 9726,8 found that where the trial court failed to conduct any inquiry into the defendant’s ability-to-pay prior to imposing non-mandatory fines, remand for resentencing was required. Id. at *21-24. Specifically, the Court held that “[t]rial courts are without authority to impose non-mandatory fines absent record evidence that the defendant is or will be able to pay them.” Id. at *23 (quoting Commonwealth v. Ford, 217 A.3d 824, 829 (Pa. 2019)) (brackets omitted).

Here, there was no record evidence that Strunk is presently or will be able to pay the non-mandatory $25 fine the court imposed. See Snyder, supra. Indeed, at the guilty plea colloquy, defense counsel elicited the following testimony from Strunk:

Q. And now, Ms. Strunk, it’s my understanding that you do not have any source of income at this time?

A. Correct.

Q. And you are also struggling with some housing issues as well as—

A. Yes.

Q. Yes? As well as reuniting with your children?

A. Yes.

Q. So[,] any sort of costs and fines imposed by this [c]ourt is going to be a hardship for you?

A. Yes.

Q. And you have qualified for the public defender services, correct?

A. Yes.

N.T. Guilty Plea/Sentencing Hearing, 2/21/20, at 6-7. Because we conclude from our review of the record that there was no evidence presented in the trial court of Strunk’s present or future ability to pay the $25 fine, we are constrained to reverse and remand for resentencing.9 See Snyder, supra. Judgment of sentence affirmed in part and reversed in part. Remanded for resentencing consistent with the dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2021