ability to pay hearing in Pennsylvania

2022Appellant counters that Commonwealth v. Martin, 335 A.2d 424 (Pa.Super. 1975) (en banc), and Commonwealth v. Lopez, 248 A.3d 589 (Pa.Super. 2021) (en banc), support his position that an ability to pay hearing was required by Rule 706(C).

2022If 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).

2021We disagree. “[W]hile a trial court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendant faces incarceration for failure to pay court costs previously imposed on him.” Lopez, supra at 1.

2021As this Court recently confirmed in Commonwealth v. Lopez, 2021 PA Super 51 (filed March 23, 2021) (en banc), the Pennsylvania Rules of Criminal Procedure, Sentencing Code and established Pennsylvania case law afford the trial court the discretion as to whether to hold an ability-to-pay hearing at the time of sentencing.

2021This Court recently addressed this identical issue in Commonwealth v. Lopez, __ A.3d __, 2021 PA Super 51 , 2021 WL 1096376 (Pa. Super. filed March 23, 2021) (en banc), and reaffirmed the precedent that “while a trial court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendant faces incarceration for failure to pay court costs previously imposed on [her].”7 Lopez, 2021 WL ____________________________________________ 7Appellant’s contention that the holding of Commonwealth v. Martin, 335 A.2d 424 (Pa. Supe

2021In the opinion, the court first explained that it had denied Appellant’s Motion for Ability-to-Pay Hearing because it was simply not required to hold such a hearing prior to imposing court costs under the clear dictates of this Court’s decision in Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (holding that Rule 706 only requires a trial court to hold an ability-to-pay hearing when a defendant risks incarceration for failing to pay court costs).

2021Accordingly, the preliminary objection of the Department is sustained, and Beavers’ petition for review is dismissed. ____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita 7 Although not required by statute, the Pennsylvania Supreme Court explained that “an ability-to- pay hearing” is conducted “where there has been a change in circumstances – such as a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations.” Bundy I, 184 A.3d at 559 (citing Ingram v. Newman, 830 A.2d 1099, 1103 (Pa. Cmwlth. 2003))

2019The Court explained that “under Pennsylvania law as established by the Commonwealth Court,” an ability-to-pay hearing “would only be implicated in relation to Act 84 deductions if there has been a ‘material change of circumstances’ such as a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations.” Id. (quoting Ingram v. Newman, 830 A.2d 1099, 1103 (Pa. Cmwlth. 2003)) (citing George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003)).

2021Read[ing Rules 706(C) and (A)] together, the Superior Court has consistently held that indigency does not preclude imposition of costs at sentencing, and an ability to pay hearing need only occur prior to committing a defendant to prison for failure to pay costs. [Appellant’s] claims here are directly controlled by … Childs … and Commonwealth v. Hernandez, 917 A.2d 332, 337 (Pa. Super. [] 2007)….

2021Rather, the Lopez Court reaffirmed our prior precedent that Rule 706(C) “in no way places an affirmative duty on a sentencing court to hold an ability-to-pay hearing prior to imposing mandatory costs upon a defendant.” Id. at 594; accord Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013); Commonwealth v. Hernandez, 917 A.2d 332, 336-337 (Pa. Super. 2007).

2021See also Buck v. Beard, 879 A.2d 157, 161 (Pa. 2005) (due process does not require a judicial hearing regarding an inmate’s ability to pay after his sentencing hearing); Bundy v. Wetzel (Pa. Cmwlth., No. 553 M.D. 2016, filed April 12, 2019) (unreported), slip op. at 18 (offender not entitled to an ability-to-pay hearing, or means to object to Act 84 9 deductions, whenever there is a material change in circumstances).7 “[W]hile in custody under sentence, an offender’s sole avenues to challenge payment of financial aspects of sentence are direct appeal or postconviction proceedings.” George, 824

2020It maintained that Act 84 gave it the authority to effectuate the deductions based on the sentencing orders, and that, in light of Buck v. Beard, 583 Pa. 431 , 879 A.2d 157 (2005), the Department was not required to provide an ability-to-pay hearing before the first deduction.

2019The Court explained that “under Pennsylvania law as established by the Commonwealth Court,” an ability-to-pay hearing “would only be implicated in relation to Act 84 deductions if there has been a ‘material change of circumstances’ such as a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations.” Id. (quoting Ingram v. Newman, 830 A.2d 1099, 1103 (Pa. Cmwlth. 2003)) (citing George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003)).

2019The Court explained that “under Pennsylvania law as established by the Commonwealth Court,” an ability-to-pay hearing “would only be implicated in relation to Act 84 deductions if there has been a ‘material change of circumstances’ such as a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations.” Id. (quoting Ingram v. Newman, 830 A.2d 1099, 1103 (Pa. Cmwlth. 2003)) (citing George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003)).

2021Although 8 Section 9730(b) permits a court to examine a defendant’s financial ability to pay, this provision “applies only when the defendant’s sentence prescribes financial obligations without confinement.” Department of Corrections v. Tate, 133 A.3d 350, 356 (Pa. Cmwlth. 2016) (emphasis added).

2019Ingram, 830 A.2d at 1103 ; see Tate, 133 A.3d at 354-55 .

2021See generally Commonwealth v. Snyder, 251 A.3d 782, 796-97 (Pa. Super. 2021) (distinguishing legality-of-sentence challenges to court fines, which require consideration of a defendant’s ability to pay, and mandatory costs, which may be imposed without an ability-to-pay hearing). 3 The trial court states that it “is unaware of any written post-trial motion filed by any counsel for Appellant, including a motion to reconsider sentence or a motion to withdraw Appellant’s guilty plea.” Trial Ct. Op., 1/5/21, at 2 n.2 (formatting altered).

2021Accordingly, pursuant to Lopez, a trial court has the discretion to hold a hearing regarding a defendant’s ability to pay costs at sentencing, but an ability-to-pay hearing is only required when “a defendant is in peril of going to prison for failing to pay the costs imposed on him.” Id. at 595; see also Snyder, 251 A.3d at 798 .

2026See Lopez, 280 A.3d at 901; see also Commonwealth v. Shanholz, 295 A.3d 261,264 (Pa.Super. 2023)(holding that “Rule 706 does not provide the court with authority to waive the costs completely’' (emphasis in original)); Kettering, 2025 WL 261694 , at *4 (“[T]he plain and unambiguous language of Rule 706 does not permit the trial court to waive fines or costs, or to exonerate a defendant from his obligation to pay all or part of any such fines and costs.'’).

2021See Commonwealth v. Gardner, 632 A.2d 556, 556-57 (Pa. Super. 1993).

2021First, we observe that “[a] claim that the sentencing court used an incorrect OGS is a challenge to the discretionary aspects of one’s sentence.” Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (citation omitted).

2021See, e.g., Commonwealth v. Barnes, 151 A.3d 121 , 126- 27 (Pa. 2016) (holding challenges to mandatory minimum sentence before those sentences were later held unconstitutional implicate the legality of sentence); see also Commonwealth v. Ford, 217 A.3d 824 , 830-31 (Pa. 2019) (PCRA petitioner’s claim implicated legality of sentence where he claimed that the trial court imposed non-mandatory fines without conducting an ability-to-pay hearing).

2020See Pa.R.Crim.P. 706(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.”); see also Diaz, 191 A.3d at 866 .