J-A21008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN CLEMENT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1846 EDA 2019

Appeal from the Judgment of Sentence Entered May 29, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0004551-2018

BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: Filed: December 3, 2020

John Clement appeals from the judgment of sentence, imposed in the 

Court of Common Pleas of Montgomery County, after he entered a negotiated 

guilty plea to two counts of accidents involving damage to attended vehicle or 

property.

1

 The court sentenced Clement to an aggregate term of 11⁄2 years of 

probation, plus the costs of prosecution, $500.00 in restitution, and a monthly 

$25.00 offender supervision fee. After careful review, we affirm.

On April 20, 2018, Clement struck and damaged several vehicles 

traveling along Route 309 in Montgomery County, allegedly as a result of his 

van sustaining a flat tire. After Clement failed to remain at or return to the 

accident scenes, he was later located by police at a nearby shopping center

where he was changing his flat tire. Clement was ultimately charged with the 

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1 75 Pa.C.S. § 3743.
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above-stated offense and related minor offenses. On May 29, 2019, the court 

held a guilty plea hearing where Clement testified that his sole source of 

income was $740/month in Supplementary Security Disability Income 

(SSDI),2that he was currently homeless, and that he was living in his van. 

N.T. Negotiated Guilty Plea Hearing, 5/29/19, at 6. Clement’s fixed, monthly 

expenses included car insurance ($100/month), which is automatically 

deducted from his SSDI account, cell phone expenses (roughly $66/month), 

and a gym membership ($28/month).3 Finally, Clement testified that it would 

be difficult for him to pay court costs. Id. at 7. 

At the conclusion of Clement’s direct examination, defense counsel 

moved to waive the costs of prosecution. In denying this request, the court 

stated the following while imposing its sentence:

Under Count 1, the defendant is sentenced to probation for a 

period of one year in the custody of the Montgomery County Adult 

Probation Department to date from today, May 29, 2019. 

There’s a $500 restitution, which is payable to [the victim].

I am going to deny the defendant’s request that costs be 

waived. He is already getting a good deal by not spending 

a month in jail.

Under Count 2, the defendant is sentenced to six months’ 

probation and costs. And that shall run consecutive to the 

probation imposed on Count 1.

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2 Clement alleged that he has a disabled leg.

3 Clement testified that he belongs to a gym so he “can shower . . . and do a 

little physical therapy . . . per [his] prosthetic operator.” N.T. Negotiated 

Guilty Plea Hearing, 5/29/19, at 7.
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The defendant is also ordered to comply with all conditions of 

probation imposed by the Montgomery County Adult Probation 

Department and all terms of supervision.

The defendant has to pay the monthly offender supervision 

fee.

Id. at 14-15 (emphasis added).

Clement entered a negotiated guilty plea to two counts of accident 

involving damage to attended vehicle or property, a third-degree 

misdemeanor; the court nol prossed the summary offense of duty to give 

information and render aid.4 Clement was sentenced to a one-year term of 

probation (on Count 1) and a consecutive term of six months of probation (on 

Count 2), $500.00 in restitution, costs of prosecution, and a $25.00 monthly

offender supervision fee.

5

 The court noted that the sentence was in the 

mitigated range because “the victims are on board with th[e] agreement [and 

the Commonwealth agreed to the deal] “due to [Clement’s] financial situation 

and physical conditions.” Id. at 3-4. 

Clement timely filed post-sentence motions seeking modification of his 

sentence on the grounds that: (1) the imposition of costs and fees should be 

waived where a defendant is indigent; (2) costs should only be imposed if a 

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4 75 Pa.C.S. § 3744.

5

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).
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defendant is financially able to pay; (3) a defendant cannot afford to pay court 

costs if he or she is unable to afford to meet his or her basic life needs; and 

(4) if a person is in poverty, it follows that they are unable to pay costs. 

Defendant’s Post-Sentence Motions, 6/6/19, at 2-3. On June 10, 2019, the 

trial court granted, in part, Clement’s post-sentence motions; the court waived 

all costs, but noted that Clement “is still obligated to pay the offender 

supervision fee.” Order, 6/10/19.

Clement filed a timely notice of appeal and court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. He presents 

the following issues for our consideration:

(1) Whether the trial court erred when it relied on the favorable 

terms of [] Clement’s plea agreement as a basis for denying, 

in part, his motion to waive costs, [] when the record could 

only support the conclusion that [] Clement lacked the 

ability to pay the costs.

(2) Whether the trial court erred in imposing any costs at 

sentencing, absent evidence of [] Clement’s ability to pay.

Appellant’s Amended Brief, at 3.6

We first note that a negotiated guilty plea contains an agreement with 

regard to both the charges to be brought and the specific penalties to be 

imposed upon a defendant. See Commonwealth v. Porreca, 567 A.2d 

1044, 1047 (Pa. Super. 1989), rev'd on other grounds, 595 A.2d 23 (Pa. 

1991). When a negotiated sentence is accepted and imposed by the 

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6 On April 27, 2020, our Court granted Clement’s application to amend his 

appellate brief.
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sentencing court, there is no authority to permit a challenge to the 

discretionary aspects of that sentence. Commonwealth v. Reichle, 589 

A.2d 1140, 1141 (Pa. Super. 1991). A plea of guilty generally amounts to a 

waiver of all defects and defenses except those concerning the jurisdiction of 

the court, the legality of the sentence, and the validity of the guilty plea. Id.

Generally, a claim that a court lacks authority to impose costs 

constitutes a challenge to the legality of the sentence. Commonwealth v. 

Garzone, 993 A.2d 306 (Pa. Super. 2010), aff’d, 34 A.3d 67 (Pa. 2102). 

Here, however, Clement “challenges the discretionary amount of costs the 

sentencing court imposed because the court relied on impermissible factors 

and because the amount was unsupported and excessive in light of the 

record.” Appellant’s Amended Brief, at 1; see id. at i (“The [t]rial [c]ourt 

[a]bused its [d]iscretion in [c]harging Mr. Clement with the [c]osts of the 

[o]ffender-[s]upervision [f]ee.”).

7

 Accordingly, we interpret Clement’s 

challenge as one attacking the court’s discretion to impose the supervision fee 

and not its legal authority to do so. However, because Clement has entered 

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7 Clement states that the appropriate standard of review in this case where 

there is “an unreasonable sentence is [an] abuse of discretion. See 

Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).” Appellant’s 

Amended Brief, at 1.
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a negotiated guilty plea, he has waived all defects concerning the discretionary 

aspect of his sentence. Reichle, supra.

8

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8 However, even if Clement’s issues were not waived, he would not be entitled 

to relief on appeal. From the trial judge’s above-quoted language at 

sentencing, see supra at 2-3, it is clear that the court originally denied waiver 

of the costs of prosecution, not the supervision fee, based upon its belief that 

Clement was “already getting a good [plea] deal.” N.T. Negotiated Guilty Plea 

Hearing, 5/29/19, at 14. Thus, to the extent that Clement argues the court 

improperly refused to waive the supervision fee based upon his “getting a 

good deal,” we find the argument meritless.

With regard to Clement’s assertion that the trial court’s “[i]mposi[tion of] costs

[and fees]” was “unreasonable[,] excessive and a clear abuse of discretion” 

because he “is entirely unable to pay,” Appellant’s Amended Brief, at 10, we 

find he is entitled to no relief. First, we note that the court did, in fact, waive 

Clement’s costs. See supra at 4. Thus, this argument is moot. Second, with 

regard to the imposition of supervision fees, we note that 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. 
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/20

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(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.

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 enumerated six factors in section 11.1102(e)(2)(i-vi)). 

Thus, while a court is required to impose the $25.00 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. However, while 

the court did not choose to waive Clement’s fee, it likely considered his 

homelessness, financial situation, and disability when waving his costs of 

prosecution.