Com. v. Cook, K. ( 2021 )

J-S05021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KERA COOK :
:
Appellant : No. 981 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-0007549-2019
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
JUDGMENT ORDER BY LAZARUS, J.: Filed: April 22, 2021
Kera Cook appeals from the judgment of sentence, imposed in the Court
of Common Pleas of Montgomery County, after she entered a negotiated guilty
plea to possession of a controlled substance and simple assault. In accordance
with the plea agreement, the trial court sentenced Cook to an aggregate term
of 24 months of probation and ordered her to pay the costs of prosecution.
Cook filed a post-sentence motion requesting that the court waive costs of
prosecution and/or schedule a hearing to determine her ability to pay. On
February 25, 2020, the court denied Cook’s motion without a hearing. On
April 7, 2020, Cook filed a notice of appeal to this Court.1 Both Cook and the
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1 Due to the statewide judicial emergency declared as a result of the COVID-
19 pandemic, all notices of appeal due to be filed between March 19, 2020,
and May 8, 2020, are deemed to have been timely filed if they were filed by
close of business on May 11, 2020. See In Re: General Statewide Judicial
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trial court have complied with Pa.R.A.P. 1925. Cook’s sole claim on appeal
challenges the trial court’s imposition of the costs of prosecution without first
holding a hearing to consider her ability, as an indigent person, to pay those
costs. Cook is entitled to no relief.
On March 23, 2021, this Court issued its decision in Commonwealth
v. Lopez, _ A.3d _, 1313 EDA 2018 (Pa. Super. 2021) (en banc). Like Cook,
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.
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Emergency, Nos. 531 and 532 Judicial Administrative Docket, at 5, Section
III (Pa. filed April 28, 2020). Here, Cook’s notice of appeal was due on or
before March 29, 2020 and, thus, was tolled by the order of the Supreme
Court. Accordingly, we consider her notice of appeal, filed on April 7, 2020,
timely filed.
2 Rule 706 provides:
(A) A court shall not commit the defendant to prison for failure to
pay a fine or costs unless it appears after hearing that the
defendant is financially able to pay the fine or costs.
(B) When the court determines, after hearing, that the defendant
is without the financial means to pay the fine or costs immediately
or in a single remittance, the court may provide for payment of
the fines or costs in such installments and over such period of time
as it deems to be just and practicable, taking into account the
financial resources of the defendant and the nature of the burden
its payments will impose, as set forth in paragraph (D) below.
(C) The court, in determining the amount and method of payment
of a fine or costs shall, insofar as is just and practicable, consider
the burden upon the defendant by reason of the defendant’s
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Martin, 335 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.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 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,
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financial means, including the defendant’s ability to make
restitution or reparations.
(D) In cases in which the court has ordered payment of a fine or
costs in installments, the defendant may request a rehearing on
the payment schedule when the defendant is in default of a
payment or when the defendant advises the court that such
default is imminent. At such hearing, the burden shall be on the
defendant to prove that his or her financial condition has
deteriorated to the extent that the defendant is without the means
to meet the payment schedule. Thereupon the court may extend
or accelerate the payment schedule or leave it unaltered, as the
court finds to be just and practicable under the circumstances of
record. When there has been default and the court finds the
defendant is not indigent, the court may impose imprisonment as
provided by law for nonpayment.
Pa.R.Crim.P. 706.
3Sections 9721(c.1) and 9728(b.2) of the Sentencing Code 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).
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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, Cook is
entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/21
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