Com. v. Cooper, P ( 2021 )

J-S18042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PRINCE COOPER, JR. :
:
Appellant : No. 908 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-0003822-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 10, 2021
Appellant, Prince Cooper, Jr., appeals from the judgment of sentence
imposed following his conviction of recklessly endangering another person
(“REAP”) and driving under a suspended license (“DUS”).1 Appellant argues
that the trial court erred in imposing costs and a monthly supervision fee as
part of his sentence without considering his ability to pay. We affirm.
On February 21, 2020, Appellant entered into a negotiated guilty plea
to the above-stated offenses arising out of a December 31, 2017 traffic stop.
Pursuant to the terms of the agreement, Appellant was sentenced to time
served to six months of incarceration and 50 hours of community service on
the REAP count and a $200 fine on the DUS count. In addition, Appellant was
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2705; 75 Pa.C.S. § 1543(a).
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directed to pay the costs of prosecution as well as a monthly offender
supervision fee.
At the plea hearing, the Commonwealth explained the terms of the plea
agreement, including that Appellant would be responsible to pay the costs of
prosecution, and Appellant indicated his assent to the terms of the plea. N.T.,
2/21/20, at 3-4. Appellant’s counsel also requested that the trial court waive
costs on the basis that Appellant was attending college, was not currently
employed, and had no parental financial support. Id. at 9. The trial court did
not substantively respond to Appellant’s oral request to waive costs or address
Appellant’s ability to pay at the plea hearing but instead accepted the plea and
sentenced him as set forth above. On February 24, 2020, Appellant filed a
motion to waive the costs of prosecution and the offender supervision fee; the
trial court entered an order the following day denying the motion. On March
5, 2020, Appellant filed a timely notice of appeal from the judgment of
sentence.2
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2 We note that on March 10, 2020, the trial court entered an order vacating
its February 25, 2020 order, which denied Appellant’s motion to waive costs
and fees, and scheduling a hearing on the motion for May 1, 2020. However,
Appellant did not request reconsideration of the February 25, 2020 order, and
therefore his notice of appeal filed on March 5, 2020 deprived the trial court
of jurisdiction to enter its March 10, 2020 order. See Commonwealth v.
Haughwout, 816 A.2d 247, 249-50 (Pa. Super. 2003).
Appellant filed his concise statement of errors pursuant to Pa.R.A.P. 1925(b)
on October 22, 2020. On January 4, 2021, the trial court entered its opinion
pursuant to Pa.R.A.P. 1925(a).
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Appellant raises the following issue on appeal: “Did the sentencing court
err in imposing the costs of prosecution and offender supervision fee on an
indigent person absent a consideration of their financial means?” Appellant’s
Brief at 4.3
With respect to the trial court’s imposition of costs, Appellant argues
that Rule of Criminal Procedure 706(C) requires the trial court to consider the
defendant’s ability to pay before imposing costs at sentencing. See
Pa.R.Crim.P. 706(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.”).
Therefore, Appellant asserts that this Court must vacate the costs imposed at
sentencing and remand for a hearing at which the trial court shall consider
Appellant’s financial situation.
During the pendency of this appeal, this Court addressed this precise
issue in Commonwealth v. Lopez, 248 A.3d 589 (Pa. Super. 2021) (en
banc),4 rejecting the argument that Appellant makes here. In Lopez, this
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3 Appellant’s challenge to the authority of the trial court to impose costs and
fees at sentencing without considering his ability to pay implicates the legality
of his sentence, as to which our standard of review is de novo and our scope
of review is plenary. Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.
Super. 2013).
4 A petition for allowance of appeal from this decision was filed in the
Pennsylvania Supreme Court on April 22, 2021 and is pending at 178 EAL
2021.
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Court held that Rule 706(C) only requires that the trial court hold a hearing
on the defendant’s ability to pay where the defendant faces incarceration for
non-payment and that the trial court is not required to make a presentence
determination of the defendant’s ability to pay before imposing costs. Id. at
590, 592-95; see also Commonwealth v. White, 251 A.3d 1274, 1276 (Pa.
Super. 2021). Because no presentence determination of Appellant’s ability to
pay was required at the time of his sentencing, the trial court’s imposition of
costs was not in error.
Appellant further argues that the trial court erred in imposing a monthly
offender supervision fee without conducting an ability to pay hearing.
Appellant asserts that the statute which authorizes the supervision fee,
Section 1102 of the Crime Victims Act, provides that the fee should not be
imposed where the defendant lacks the means to pay the fee. See 18 P.S. §
11.1102(c) (“The court shall impose as a condition of supervision a monthly
supervision fee of at least $25 on any offender placed on probation, parole,
accelerated rehabilitative disposition, probation without verdict or
intermediate punishment unless the court finds that the fee should be
reduced, waived or deferred based on the offender’s present inability to
pay.”); see also 37 Pa. Code § 68.21 (setting forth criteria sentencing court
may consider in determining whether to waive the supervision fee).
In White, this Court addressed the identical argument presented by
Appellant here. We stated:
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[S]imilar to the holding in Lopez, while a court is required to
impose the [supervision] 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, [Section 1102
does not require] a court to first make a determination regarding
a defendant’s ability to pay before imposing the fee.
White, 251 A.3d at 1277 (emphasis in original). We therefore concluded that
the appellant was not entitled to relief on his claim that the trial court erred
in imposing the supervision fee without addressing the defendant’s ability to
pay. Id.
Likewise here, the fact that the trial court ordered Appellant to pay a
supervision fee without considering his ability to pay does not render his
sentence illegal. Appellant’s appellate arguments therefore do not merit relief,
and we affirm his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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