J-A19012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OSCAR DUNN III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 97 EDA 2020

Appeal from the Order Entered August 19, 2019

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0003035-2018

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY PANELLA, P.J.: Filed: April 22, 2021

Oscar Dunn III appeals from his August 19, 2019 judgment of sentence, 

which included the imposition of mandatory court costs and monthly offender 

supervision fees. He argues he was entitled to an ability-to-pay hearing before 

the court imposed these costs at sentencing. We recently rejected an almost 

identical claim in Commonwealth v. Lopez, -- A.3d --, 1313 EDA 2018, 2021 

WL 1096376 (Pa. Super. March 23, 2021) (en banc), and therefore affirm 

Dunn’s judgment of sentence on the basis of that decision.

Police found a firearm and drugs on Dunn following a traffic stop on 

March 14, 2018. Dunn was arrested and charged with various offenses. 

Following a stipulated bench trial, he was found guilty of illegally possessing 

a firearm and possession of drug paraphernalia. The trial court sentenced 

Dunn to an aggregate term of five to ten years’ imprisonment. It also directed 
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Dunn to pay the costs of prosecution as well as monthly offender supervision 

fees. 

Dunn filed a timely notice of appeal and subsequently complied with the 

trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal. The trial court issued a Pa.R.A.P. 1925(a) opinion in response. 

In that opinion, the trial court rejected Dunn’s sole claim that the court was 

required to hold an ability-to-pay hearing before it imposed the costs of 

prosecution and the offender supervision fees at sentencing. Dunn now argues 

in his appeal to this Court that the trial court erred in reaching this conclusion. 

However, this claim plainly fails under our recent decision in Lopez.

In Lopez, this Court explicitly held that a trial court is not required to 

hold an ability-to-pay hearing prior to imposing the mandatory costs of 

prosecution on a defendant at sentencing. See Lopez, 2021 WL 109376 at 

*1, *5. Rather, we explained that Pa.R.Crim.P. 706 only requires a trial court 

to hold such a hearing before a defendant faces incarceration for failing to pay 

those costs. See id. As Dunn has not been threatened with incarceration for 

defaulting on the court costs imposed on him, he was not entitled to a hearing 

on his ability to pay those costs under Lopez and his claim to the contrary 

necessarily fails.

Dunn also maintains that he was entitled to an ability-to-pay hearing 

before the trial court directed him to pay the monthly offender supervision 

fees at sentencing. We found in Lopez that Lopez had not raised his claim 
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related to supervision fees in his Pa.R.A.P. 1925(b) statement and therefore, 

had not preserved the issue for our review.1 Unlike Lopez, Dunn did raise his 

claim that the court was required to hold an ability-to-pay hearing prior to 

imposing the supervision fees in his 1925(b) statement. Nonetheless, we find 

that the claim is without merit. 

In support of his claim, Dunn points to 18 P.S. § 11.1102(c), which 

provides that the court “shall impose ... a monthly supervision fee ... unless 

the court finds that the fee should be reduced, waived or deferred based on 

the offender’s present inability to pay.” 18 P.S. § 11.1102(c). However, as the 

trial court explained when finding that Section 11.1102(c) did not require it to 

hold an ability-to-pay hearing prior to imposing the supervision fees:

[T]he provisions of 18 P.S. § 11.1102 clearly indicate that the 

“court shall impose” a monthly supervision fee. While the court 

may make findings regarding the ability of an offender to pay a 

fee, such a finding is not required nor is a finding of the offender’s 

financial ability a precondition to the imposition of the fee.

Trial Court Opinion, 2/6/2020, at 4 (emphasis in original). 

We agree. As the Commonwealth points out, nothing in Section 

11.1102(c) dictates that a trial court must conduct an ability-to-pay hearing 

before it imposes a supervision fee at sentencing. Rather, while the trial court 

may conduct such a hearing at that time, Section 11.1102(c) does not require 

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1 Lopez’s claim regarding the supervision fees differed from Dunn’s in that 

Lopez’s claim involved a local court policy in Philadelphia County not to waive 

supervision fees unless requested by the Philadelphia Probation Department. 

See id. at *5. Dunn’s case took place in Montgomery County.
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it to do so. We see no reason to distinguish supervision costs from those costs 

addressed in Lopez.

Moreover, we note that Lopez left this Court’s decision in 

Commonwealth v. Childs, 63 A.3d 323 (Pa. Super. 2013), completely 

undisturbed. See Lopez, 2021 WL 1096376 at *4 - *5. In Childs, the 

appellant argued that the sentencing court was required to hold an ability-topay hearing prior to imposing costs, which included both court costs and a 

monthly supervision fee. The Childs Court rejected the appellant’s claim, 

holding that the sentencing court was not required to hold a hearing on his 

ability to pay the ordered costs unless and until he risked incarceration for 

failure to pay those costs. See Childs, 63 A.3d at 326. The Childs court made 

clear that although a trial court has the discretion to hold a hearing prior to 

imposing court costs and the monthly supervision fee at sentencing, it was 

only required to hold “such a hearing prior to any order directing incarceration 

for failure to pay the ordered costs.” Id. 

Childs remains good law and, along with Lopez, controls Dunn’s claim 

here. Accordingly, we conclude that the trial court did not err by failing to hold 

an ability-to-pay hearing prior to imposing the court costs and monthly 

supervision fees on Dunn at sentencing. No relief is due. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:4/22/21