Com. v. Dunn, O. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OSCAR DUNN III :
:
Appellant : No. 97 EDA 2020
Appeal from the Order Entered August 19, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003035-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: Filed: April 22, 2021
Oscar Dunn III appeals from his August 19, 2019 judgment of sentence,
which included the imposition of mandatory court costs and monthly offender
supervision fees. He argues he was entitled to an ability-to-pay hearing before
the court imposed these costs at sentencing. We recently rejected an almost
identical claim in Commonwealth v. Lopez, -- A.3d --, 1313 EDA 2018, 2021
WL 1096376 (Pa. Super. March 23, 2021) (en banc), and therefore affirm
Dunn’s judgment of sentence on the basis of that decision.
Police found a firearm and drugs on Dunn following a traffic stop on
March 14, 2018. Dunn was arrested and charged with various offenses.
Following a stipulated bench trial, he was found guilty of illegally possessing
a firearm and possession of drug paraphernalia. The trial court sentenced
Dunn to an aggregate term of five to ten years’ imprisonment. It also directed
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Dunn to pay the costs of prosecution as well as monthly offender supervision
fees.
Dunn filed a timely notice of appeal and subsequently complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. The trial court issued a Pa.R.A.P. 1925(a) opinion in response.
In that opinion, the trial court rejected Dunn’s sole claim that the court was
required to hold an ability-to-pay hearing before it imposed the costs of
prosecution and the offender supervision fees at sentencing. Dunn now argues
in his appeal to this Court that the trial court erred in reaching this conclusion.
However, this claim plainly fails under our recent decision in Lopez.
In Lopez, this Court explicitly held that a trial court is not required to
hold an ability-to-pay hearing prior to imposing the mandatory costs of
prosecution on a defendant at sentencing. See Lopez, 2021 WL 109376 at
*1, *5. Rather, we explained that Pa.R.Crim.P. 706 only requires a trial court
to hold such a hearing before a defendant faces incarceration for failing to pay
those costs. See id. As Dunn has not been threatened with incarceration for
defaulting on the court costs imposed on him, he was not entitled to a hearing
on his ability to pay those costs under Lopez and his claim to the contrary
necessarily fails.
Dunn also maintains that he was entitled to an ability-to-pay hearing
before the trial court directed him to pay the monthly offender supervision
fees at sentencing. We found in Lopez that Lopez had not raised his claim
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related to supervision fees in his Pa.R.A.P. 1925(b) statement and therefore,
had not preserved the issue for our review.1 Unlike Lopez, Dunn did raise his
claim that the court was required to hold an ability-to-pay hearing prior to
imposing the supervision fees in his 1925(b) statement. Nonetheless, we find
that the claim is without merit.
In support of his claim, Dunn points to 18 P.S. § 11.1102(c), which
provides that the court “shall impose … a monthly supervision fee … unless
the court finds that the fee should be reduced, waived or deferred based on
the offender’s present inability to pay.” 18 P.S. § 11.1102(c). However, as the
trial court explained when finding that Section 11.1102(c) did not require it to
hold an ability-to-pay hearing prior to imposing the supervision fees:
[T]he provisions of 18 P.S. § 11.1102 clearly indicate that the
“court shall impose” a monthly supervision fee. While the court
may make findings regarding the ability of an offender to pay a
fee, such a finding is not required nor is a finding of the offender’s
financial ability a precondition to the imposition of the fee.
Trial Court Opinion, 2/6/2020, at 4 (emphasis in original).
We agree. As the Commonwealth points out, nothing in Section
11.1102(c) dictates that a trial court must conduct an ability-to-pay hearing
before it imposes a supervision fee at sentencing. Rather, while the trial court
may conduct such a hearing at that time, Section 11.1102(c) does not require
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1 Lopez’s claim regarding the supervision fees differed from Dunn’s in that
Lopez’s claim involved a local court policy in Philadelphia County not to waive
supervision fees unless requested by the Philadelphia Probation Department.
See id. at *5. Dunn’s case took place in Montgomery County.
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it to do so. We see no reason to distinguish supervision costs from those costs
addressed in Lopez.
Moreover, we note that Lopez left this Court’s decision in
Commonwealth v. Childs, 63 A.3d 323 (Pa. Super. 2013), completely
undisturbed. See Lopez, 2021 WL 1096376 at *4 - *5. In Childs, the
appellant argued that the sentencing court was required to hold an ability-to-
pay hearing prior to imposing costs, which included both court costs and a
monthly supervision fee. The Childs Court rejected the appellant’s claim,
holding that the sentencing court was not required to hold a hearing on his
ability to pay the ordered costs unless and until he risked incarceration for
failure to pay those costs. See Childs, 63 A.3d at 326. The Childs court made
clear that although a trial court has the discretion to hold a hearing prior to
imposing court costs and the monthly supervision fee at sentencing, it was
only required to hold “such a hearing prior to any order directing incarceration
for failure to pay the ordered costs.” Id.Childs remains good law and, along with Lopez, controls Dunn’s claim
here. Accordingly, we conclude that the trial court did not err by failing to hold
an ability-to-pay hearing prior to imposing the court costs and monthly
supervision fees on Dunn at sentencing. No relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/22/21
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