Commonwealth v. Lopez, A., Aplt.

[J-6-2022] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 27 EAP 2021
:
Appellee : Appeal from the Judgment of
: Superior Court entered on March
: 23, 2021 at No. 1313 EDA 2018
v. : Affirming the Judgment of Sentence
: entered on April 27, 2018 in the
: Court of Common Pleas,
ALEXIS LOPEZ, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0004377-
Appellant : 2015.
:
: ARGUED: March 9, 2022
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: August 16, 2022
The Majority concludes that Criminal Rule of Procedure 706(C) does not require a
trial judge to consider a defendant’s ability to pay court costs at sentencing. The lynchpin
of its analysis is its conclusion that Section (C) “like the rest of the rule, pertains to post-
sentencing proceedings and appears in chronological order. That is, Rule 706(C)
concerns the court’s post-sentence determination of the amount and method of payment
after the defendant has defaulted[.]” Maj. Op. at 13-14. I respectfully dissent because I
disagree that Rule 706(C) exclusively applies to post-sentencing proceedings. When
reading the provision in context of all of Part A (“Sentencing Procedures”) of Chapter 7 of
the Rules and in pari materia with the relevant legislation, I conclude that the Rule’s
operation is ambiguous. Turning to other indicia of legislative intent to resolve the
ambiguity, I conclude that the General Assembly and this Court intended to have the trial
judge determine at sentencing whether a defendant will ever be able to pay court costs.
I.
As background for the analysis, a brief description of the various sources of law
that govern sentencing is helpful. The basic process is simple: a judge imposes a penalty
linked to each conviction. A “conviction is the essential supporting infrastructure for a
sentence,” Commonwealth v. Spruill, 80 A.3d 453, 464 (Pa. 2013) (Saylor, J., concurring),
and “[t]he power to impose sentences is strictly within the province of the court.”
Commonwealth v. Burton, 301 A.2d 675, 676 (Pa. 1973). But the court’s sentencing
power is circumscribed by the range of punishments made available by the General
Assembly for each conviction. “When a trial court imposes a sentence outside of the legal
parameters prescribed by the applicable statute, the sentence is illegal and should be
remanded for correction.” Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000).
This Court, pursuant to its rulemaking authority, has prescribed further
requirements. For example, this Court provides a trial court with the discretion to order a
pre-sentence investigation report in any case. If the court elects not to order a report, the
court must explain why for three categories of cases. See Pa.R.Crim.P. 702(A)(2).1 This
type of requirement is fairly described as reflecting the Court’s policy decisions. See
Commonwealth v. Schwartz, 418 A.2d 637, 641 n.4 (Pa. Super. 1980) (Price, J.,
dissenting) (“This policy of pre-sentence report disclosure has been accepted in
numerous jurisdictions by either judicial decree or legislative mandate.”). Others
1The General Assembly may also order additional pre-sentence investigation, as in the
case of sexually violent predator hearings. See 42 Pa.C.S. §§ 9799.24(a); 9799.58(a).
[J-6-2022] [MO: Dougherty, J.] - 2
incorporate common law guarantees, such as the multiple references in the Rules
requiring a judge to give defendants an opportunity to speak. The “guarantee of an
opportunity to address the court before sentencing has its origins in the long-established
common law right of allocution.” Commonwealth v. Knighton, 415 A.2d 9, 11 (Pa. 1980).
Constitutional guarantees obviously restrain courts as well. As the Majority aptly
recounts, this Court’s holding in Commonwealth ex rel. Benedict v. Cliff, 304 A.2d 158(Pa. 1973), which involved a constitutional holding, drove the adoption of what is today
Rule 706.
II.
Our Rules of Criminal Procedure are separated into eleven chapters. The seventh
chapter, entitled “Post-Trial Procedures in Court Cases,” addresses, inter alia,
sentencing. The chapter is split into three parts, with Part A dealing with “sentencing
procedures,” Part B addressing “post-sentence procedures,” and Part C covering
expungement. Rule 706 is placed under Part A. Whereas the Majority focuses on the
“chronological order” of Rule 706, I submit that the focus should be on sentencing at large
and how costs fit within the amalgamation of common law, Rules of Criminal Procedure,
and legislation that applies at sentencing.
First, as set forth above, a court’s sentencing options must be carried out in tandem
with legislative requirements. Section 9721 of the Sentencing Code is the general
sentencing statute and provides the five generic options available to a court: probation,
guilt without further penalty, partial confinement, total confinement, or a fine. 42 Pa.C.S.
§ 9721(a). A court is also required to order restitution, 42 Pa.C.S. § 9721(c), and in 2010
[J-6-2022] [MO: Dougherty, J.] - 3
the General Assembly inserted language making clear that a court is required to order
the payment of court costs.
Notwithstanding the provisions of section 9728 (relating to
collection of restitution, reparation, fees, costs, fines and
penalties) or any provision of law to the contrary, in addition
to the alternatives set forth in subsection (a), the court shall
order the defendant to pay costs. In the event the court fails
to issue an order for costs pursuant to section 9728, costs
shall be imposed upon the defendant under this section. No
court order shall be necessary for the defendant to incur
liability for costs under this section. The provisions of this
subsection do not alter the court's discretion under
Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
42 Pa.C.S. § 9721(c.1).
Turning to how the Rules effectuate these enactments and reflect our policies,
Rule 704 is the starting point. It sets the timeframe for sentencing, which shall ordinarily
take place within ninety days of conviction. Pa.R.Crim.P. 704. Section (B) permits a
judge to decide certain motions “before imposing sentence.” Section (C) governs the
actual “Sentencing Proceeding” itself and requires the judge to give the parties an
opportunity to present statements and argument. It also instructs the judge to “state on
the record the reasons for the sentence imposed” and provide the defendant with his or
her post-sentence rights. Pa.R.Crim.P. 704(A-C).
Rule 705 is titled “Imposition of Sentence.” Notwithstanding that title, the Rule’s
text only speaks to sentences of confinement. The judge must “state the date the
sentence is to commence,” and must specify whether multiple sentences are to run
concurrently or consecutively. Pa.R.Crim.P. 704(A-B). Rule 705.1 covers restitution2 and
2Additionally, restitution can be imposed either as a direct sentence or as a condition of
probation or parole. 18 Pa.C.S. § 1106; 42 Pa.C.S. § 9754.
[J-6-2022] [MO: Dougherty, J.] - 4
says that “[a]t the time of sentencing, the judge shall determine what restitution, if any,
shall be imposed.” Pa.R.Crim.P. 705.1(a).
Rule 706, the focus of the instant dispute, is the only Rule within Chapter Seven
that mentions costs in its text. For ease of reference its text is reproduced below.
Fines or Costs
(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 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.
[J-6-2022] [MO: Dougherty, J.] - 5
Because Sections (A), (B), and (D) all address events that occur only after
sentence has been imposed, the Majority concludes that the same must be true of Section
(C). See Maj. Op. at 13. The Majority offers ample support for its reading, including the
oddity of placing “a single provision uniquely concerning the sentencing itself” after
provisions addressing post-sentencing matters, id. at 14, and the absence of language
expressly tying costs to sentencing. Compare Pa.R.Crim.P. 705.1(A) (“At the time of
sentencing, the judge shall determine what restitution, if any, shall be imposed.”). The
Majority’s analysis is a plausible interpretation. However, Lopez and the Commonwealth
offer a reasonable interpretation as well. While I disagree that their interpretation is
entirely correct, I credit several aspects of their argument as supporting an ambiguity.
I agree that the sequencing within Rule 706 is somewhat odd, but the overall
structure of the Rules is out of order, too: Rule 704(C)(3) references the judge’s duty to
explain “the sentence imposed,” but that Rule precedes Rules 705 and 705.1. If our focus
is strictly on sequential logic, Rule 704(C)(3) should appear after these Rules. Moreover,
if the Majority is correct that Rule 706 only applies after sentencing, its placement within
Part A is illogical. Part B, addressing “post-sentencing procedures,” is obviously a more
logical home if so.3 Relatedly, the Majority observes that “[t]he rule’s three other sections
3 The Majority is correct that Rule 708, addressing revocation proceedings, is something
that occurs only post-sentencing. However, those proceedings can result in revocation
and resentencing. See Pa.R.Crim.P. 708(D) (“Sentencing Procedures”); Commonwealth
v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (explaining that following a violation of
probation a court “may impose a new sentence”). As for Rule 707, the Comments
reference statutory authority requiring the trial court “within 10 days of sentencing to
provide specified information to the county correctional facility.” Comment, Rule 707
(citing 42 Pa.C.S. § 9764(b)). As that duty can plausibly be described as something that
occurs in tandem with sentencing or after sentencing, either part is a logical place.
[J-6-2022] [MO: Dougherty, J.] - 6
clearly refer to post-sentencing proceedings after the court has already ordered costs at
sentencing,” Maj. Op. at 13. This is correct in the abstract but skips over the important
question of how and when the referenced costs were imposed in the first place. Lopez
and the Commonwealth are correct that Rule 706(C) is the only Rule-based provision that
could apply.4
Indeed, the fact that Rule 706(C) speaks to both fines and costs suggests that the
determination of costs must be made at the time of sentencing. This is because fines are
part of the sentence itself. See 42 Pa.C.S. § 9726(b) (establishing when a court “may
sentence the defendant to a pay a fine in addition to another sentence”); Commonwealth
v. Eisenberg, 98 A.3d 1268, 1279 (Pa. 2014) (“[W]e note that the Commonwealth does
not dispute that the fine imposed here is a penalty, and therefore an Article I, Section 13
claim is cognizable.”). As the Majority explains, costs are described as incidental to the
judgment. See Maj. Op. at 19. This makes them akin to collateral consequences, which
are non-punitive in nature. Accepting that fines are punitive and costs are not, consider
the consequences of the Majority’s determination that Rule 706(C) applies only after the
criminal sentence has been imposed. The plain text of Rule 706(C) permits the judge to
“determin[e] the amount … of a fine,” and therefore the Rule purports to allow a judge to
modify, or even impose in the first instance, a fine. Putting aside jurisdictional questions,
it is unclear how a court could adjust the fine at that juncture without modifying the
4 I do not “assum[e] that there must be a rule governing the imposition of costs at
sentencing,” and there is no doubt that “there are occasions where our rules of procedure
do not address particular issues,” Maj. Op. at 27. I merely submit that given the existence
of a Rule titled “Fines and Costs,” which is organized under the part of the Rules
addressing sentencing, that it is plausible to conclude that this Rule was intended to
address fines and costs at sentencing.
[J-6-2022] [MO: Dougherty, J.] - 7
sentence; if so, the defendant has been resentenced and a whole new round of appeals
is available.5
In sum, a narrow focus on the four separate paragraphs of Rule 706 ignores how
costs and fines fit within sentencing as a whole under Chapter Seven of the Rules of
Criminal Procedure. The Majority is correct that Rule 706(C) “does not exist in isolation,”
but neither does Rule 706 itself. It is merely one component in the bundle of common
law, policy choices by this Court, and legislative commands that apply at sentencing. The
absence of any other Rule governing a trial court’s imposition of fines and costs, which
naturally must occur at the sentencing proceeding itself, lends strong support to Lopez’s
interpretation. In this regard, I agree with Lopez that the use of the phrase “determining
the amount and method of payment of a fine or costs” suggests that the language is
operative at sentencing. The Majority assumes that an initial “determination” can take
place after sentencing, but that is incompatible with the statutory sources as the
5 The Majority claims that my conclusion that Rule 706(C) applies at default hearings also
raises “the possibility of resentencing and a new round of appeals,” Maj. Op. at 23, but
that is not true because, unlike fines, costs are not considered part of the sentence. The
relevance of this point is that the Majority’s interpretation creates a problem whereas my
interpretation avoids it. We cannot hold that Rule 706(C) exclusively applies to post-
sentencing procedures while ignoring the fact that, under the Majority’s view, the plain
text must be read to authorize imposing a fine well after sentencing.
Furthermore, I disagree that construing Rule 706(C) to apply to fines under the Majority’s
interpretation would be “redundant and duplicative” merely because there is “an express
statutory mandate requiring the trial judge to consider the defendant’s ability to pay before
imposing a fine at sentencing.” Id. (citation omitted). Because sentencing involves a mix
of judicial discretion and legislative requirements we should expect and indeed encourage
this type of “redundancy.” For example, by Rule “the judge shall determine what
restitution, if any, shall be imposed,” despite the express statutory mandate to order
restitution. Pa.R.Crim.P. 705.1(A); 42 Pa.C.S. § 9721(c). Surely the Majority would not
say that Rule 705.1(A) should be deleted because a statute already covers it.
[J-6-2022] [MO: Dougherty, J.] - 8
determination is, as a technical matter, made by law if the trial judge does not order costs.6
Any later modification to that “determination” is more accurately characterized as an
adjustment or a reassessment. As there are two reasonable interpretations of Rule
706(C)’s text, it is ambiguous. A.S. v. Pennsylvania State Police, 143 A.3d 896, 905–06
(Pa. 2016).
III.
Resolving the ambiguity would be more difficult absent a 2010 statutory
amendment. Just as the General Assembly has the authority to make a fine mandatory,
it has the authority to mandate the payment of costs, too. In other words, the
interpretation of Rule 706 offered by Lopez would be incompatible with legislative intent
if the General Assembly decreed that all court costs are mandatory.
As I conclude that the operation of Rule 706 is ambiguous, Section 1921 of the
Statutory Construction Act supplies a nonexclusive list of eight factors that may be
considered in determining intent. Among these is contemporaneous legislative history.
Prior to Act No. 2010-96, P.L. 469 No. 96, Section 9721 of the Sentencing Code did not
discuss costs. The amendment added the following language to that statute.
(c.1) Mandatory payment of costs.--Notwithstanding the
provisions of section 9728 (relating to collection of restitution,
reparation, fees, costs, fines and penalties) or any provision
of law to the contrary, in addition to the alternatives set forth
in subsection (a), the court shall order the defendant to pay
costs. In the event the court fails to issue an order for costs
pursuant to section 9728, costs shall be imposed upon the
defendant under this section. No court order shall be
necessary for the defendant to incur liability for costs under
6The Majority asserts that “‘[d]etermine’ in this context simply means to ‘officially decide
something.’” Maj. Op. at 22(citation omitted). I agree. That official decision is simply
made by operation of law if the judge does not otherwise make a contrary determination
at the time of sentencing. In both scenarios there is an initial determination.
[J-6-2022] [MO: Dougherty, J.] - 9
this section. The provisions of this subsection do not alter the
court's discretion under Pa.R.Crim.P. No. 706(C) (relating to
fines or costs).
42 Pa.C.S. § 9721. In turn, Section 9728, which deals with collections, was amended to
state that a “defendant shall nevertheless be liable for costs, as provided in section
9721(c.1), unless the court determines otherwise pursuant to Pa.R.Crim.P. No. 706(C)
(relating to fines or costs).” 42 Pa.C.S. § 9728(b.2).
The bill analysis provided with the legislation explained that these two
amendments were prompted by Spotz v. Commonwealth, 972 A.2d 125 (Pa. Commw.
2009). Mark Spotz, serving a capital sentence, challenged automatic deductions from his
inmate account for the payment of court costs. “The crux of Spotz's Petition avers that
the Trial Court's June 17, 1996, sentencing order did not expressly order any payment of
costs,” and that an express order was needed to authorize the deductions. Id. at 129.
The Commonwealth Court concluded that some court costs are waivable but others are
not. Id. at 133. It concluded that the relevant law “authorize[d] only the deduction of
court-ordered, waivable costs, which are deductible only in the presence of a court order
so specifying; however, non-waivable, statutorily mandated costs are deductible absent
any express court order.” Id. at 134.
In response to Spotz, the statutory amendments ensured that all court costs are
mandatory and automatically imposed even without a court order. The Spotz decision
and that response highlights two points. First, that any open question regarding a trial
court’s authority to waive costs was settled. Second, the facts illustrate that trial courts
often sentence defendants who will never be released and thus will never reappear for a
Rule 706 hearing as interpreted by the Majority. A defendant who is serving a life
[J-6-2022] [MO: Dougherty, J.] - 10
sentence or a death sentence is already imprisoned and thus there is no possibility that
any nonpayment of court costs will result in incarceration. Thus, under the Majority’s
reasoning the General Assembly’s attempt to address Spotz is ineffective as to those
defendants. The more logical conclusion is that the General Assembly intended for the
determination to be made at sentencing.
I further conclude that the inclusion of language allowing a trial court to waive costs
indicates that the General Assembly wished to remedy the mischief caused by wasting
court resources. One of the participating amici, the Office of the Controller of Allegheny
County, is responsible for collecting court costs and has supplied first-hand experience.
Its brief states that Allegheny County “has at least $350 million in uncollected court debt”
because “indigent defendants lack the ability to pay in the first instance and their ability
to pay does not improve over time.” Amicus Brief of Allegheny County Controller at 3; 6.
Imposing court costs that will never be paid generates other tangible costs as well.
[W]hat is less apparent and not as well-documented are the
direct burdens that fall on the County in administering the
collection of court cost awards. What looks like a revenue
source becomes, in practice, a revenue drain.
To begin with, there are the recordkeeping burdens
associated with booking the cost awards and carrying them
on the books for years on end. Then, there are the burdens
placed on the staff in trying to collect the awards, including in
many instances, by diverting law enforcement resources. For
example, when a party does not make costs or fine payments,
the nonpayment will result in a hearing being scheduled. This
hearing requires a warrant to be issued and served on the
proper parties. Once these resources are expended, there is
no guarantee the party will attend the hearing. Even if the
party appears, that typically does not change the calculus. An
indigent individual cannot pay the cost award. This pattern
typically continues and the County receives no benefit, just an
outlay of costs. And, this unproductive investment of
[J-6-2022] [MO: Dougherty, J.] - 11
resources comes at the expense of other services the County
could provide.
Id. at 7-8.
I conclude that the General Assembly intended to address this type of waste by
granting a trial court the power to waive costs under Rule 706(C). Before these
amendments a court’s ability to waive costs was unclear. The amendments leave no
doubt that a trial court is authorized to do so. The collection statute states that a
defendant is liable “unless the court determines otherwise” under Rule 706(C). There is
no good reason to require a court to await a defendant’s inevitable default before waiving
or reducing court costs, but a very good reason to avoid costs like those incurred by
Allegheny County by relieving those agencies from doing pointless work. We should also
recognize that bench warrants impose a real cost beyond the diversion of law
enforcement resources. When a bench warrant is issued for nonpayment, a citizen will
often be incarcerated until a hearing can take place.
The General Assembly’s incorporation of Rule 706(C) within the statute raises the
question of what the General Assembly thought Rule 706 meant. Because we make that
determination today, and as there are two reasonable interpretations of the Rule’s text, I
acknowledge that what was intended by incorporating Rule 706(C) is itself open to
interpretation. Yet, as the General Assembly explicitly referenced our Rules, we must
consider our statement that the Rules “shall be construed to secure simplicity in
procedure, fairness in administration, and the elimination of unjustifiable expense and
delay.” Pa.R.Crim.P. 101. I read the General Assembly’s invocation of our Rules as an
[J-6-2022] [MO: Dougherty, J.] - 12
implicit acknowledgement that our own interpretative principles apply. 7 The statutory
amendments resolved the question of whether costs may be waived, and we should adopt
an interpretation that requires a trial judge to determine costs at sentencing and whether
those costs should be reduced or waived. Imposing that mandatory duty conserves
judicial resources and saves citizens from needless incarceration.
Nor does this interpretation “render the statutes at war with themselves, requiring
the automatic imposition of costs even in the absence of court involvement on the one
hand, while simultaneously, and irreconcilably, requiring the court’s presentence
consideration of the ability to pay on the other.” Maj. Op. at 17-18.8 This criticism is
unfounded, in my view, because courts sometimes fail to do that which they are required
to do. There is no need to delve into whether the failure to conduct the Rule 706(C)
inquiry would implicate the discretionary aspects of sentencing or legality, but one answer
7 The Majority asserts that “our task is not to weigh the competing policy interests and
determine the optimal rule as a matter of policy.” Maj. Op. at 28. As set forth within this
opinion, sentencing involves both legislative commands and this Court’s ability to
implement the Rules of Criminal Procedure, which includes policy considerations. To the
extent the Majority cabins our analysis to what the Court originally intended in 1973, then
it should refer this matter to the Criminal Procedural Rules Committee in light of the
legislative response to Spotz. If policy cannot play a role in determining the meaning of
the current rule, it should certainly play a role in determining whether amendment is
warranted.
8 While I find that the duty is mandatory, the Majority does not address the Superior
Court’s conclusion that “a trial court has the discretion to hold an ability-to-pay hearing at
sentencing.” Commonwealth v. Lopez, 248 A.3d 589, 590 (Pa. Super. 2021) (en banc).
While our allowance of appeal is limited to whether the inquiry is mandatory, if the Majority
is correct the question of whether a trial court may do so will doubtlessly arise in short
order. Eight of the nine judges on the Superior Court (Judge Nichols concurred in the
result) concluded that the trial judge has discretion to consider a defendant’s ability to pay
at sentencing. Thus, while I disagree with the Superior Court in that I find the duty to be
mandatory, I share the view that no statutory conflict arises by permitting judges to reduce
or waive costs at sentencing.
[J-6-2022] [MO: Dougherty, J.] - 13
to the Majority’s assertion is that a defendant is generally obligated to object or raise the
issue if the trial court failed to consider the matter. If the judge neglects to conduct the
inquiry and the defendant fails to object, the costs will be imposed by operation of law.9
Moreover, Rule 706(C) requires that any reduction or waiver of costs be “just and
practicable,” which signals that the determination must be made within the confines of the
individual case and through consideration of a defendant’s unique circumstances. As
with sentencing decisions regarding the proper penalties, the presiding jurist is in the best
position to make an individualized decision concerning a defendant’s ability to pay. I
therefore respectfully dissent.
Justice Todd joins this dissenting opinion.
9 I agree with the Majority that Rule 706(C) would apply at a default hearing as I conclude
that Rule 706(C) does not exclusively apply to post-sentencing proceedings. The Majority
appears to view this as irreconcilable with my conclusion that the initial “determination”
must be made at sentencing. Maj. Op. at 22 (“Thus, the dissent implicitly acknowledges
‘a determination’ can take place after sentencing[.]”). There is no tension. The Majority
essentially ignores my conclusion that the operation of this Rule is ambiguous, and I agree
that there can be “more than one ‘determination’ of the amount and method of payment
of costs[.]” Id.Additionally, I foresee no issue with trial judges declining to waive or reduce costs without
sufficient proof. This case was presented as involving “hopeless poverty,” Lopez’s Brief
at 3, but the trial court did not make any kind of finding in that regard. See N.T.,
04/27/2018, at 30-31. Nothing in this opinion is meant to suggest that in less-than-clear
cases of hopeless indigency that the judge is obligated to make detailed findings of an
ability to pay.
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