Com. v. White, M. ( 2021 )

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2021 PA Super 86COMMONWEALTH 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
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1 18 Pa.C.S.A. § 4910(1).
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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.
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2 Judge Bronson was referring to the recently decided en banc decision from
this Court, Commonwealth v. Lopez, 2021 PA Super 51 (Pa. Super. 2021)
(en banc). See infra at 3-4. Judge Bronson was the trial judge in that matter.
Id. at CP-51-CR-0004377-2015 (filed July 16, 2018).
3Then, on June 29, 2020, the motion was also denied by operation of law
pursuant to Pa.R.Crim.P. 720(B)(3)(c). See Order, 6/29/20. Regardless of
which order effectively disposed of White’s post-sentence motion, his July 6,
2020 notice of appeal was timely filed within 30 days of both the June 9, 2020,
and June 29, 2020 orders.
4 White timely filed a motion for extension of time to file a supplemental Rule
1925(b) statement after receiving the necessary notes of testimony from trial.
Pursuant to Pa.R.A.P. 1925(b)(2)(ii), “if a party has ordered[,] but not
received[,] a transcript necessary to develop the [Rule 1925(b)] Statement,
that party may request an extension . . . and attach the transcript purchase
order to the [extension] motion. . . . [T]he trial court does not have to rule
on the motion prior to the original due date[;] the motion will be deemed to
have been granted.” Pa.R.A.P. 1925(b)(2)(ii). On August 7, 2020, the trial
court entered an order granting White’s petition for extension.
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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
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5 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
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
(Footnote Continued Next Page)
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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.
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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.
6Sections 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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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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2021
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