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

Appellee

v. TIMOTHY MORGAN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1172 EDA 2020 Appeal from the Judgment of Sentence Entered February 19, 2020 In the Court of Co mmon Pleas of Montgomery County Criminal Division at No(s): CP

- 46

- CR

- 0007574

- 2018

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J. JUDG MENT ORDER BY KING, J.: FILED: APRIL 16, 2021 Appellant, Timoth y Morgan, appeals from the judg ment of sentence entered in the Montgome ry County Court of Common Pleas , following his negotiated guilty plea to retail theft. 1 We affi rm. 2 The relevant facts and procedural history of this case are as follows. On February 19, 2020, Appellant entered a negotiated guilty plea to one count of retail theft. In exchange, the Commonwealth recommended a time

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sentence and agreed to w ithdraw an additional charge . The court conducted an oral colloquy, accepted Appellant’s plea , and imposed the negotiated

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. § 3929(a)(1).

2 On December 7, 2020, we stayed our disposition of this case pending this Court’s decision in Commonwealth v. Lopez , 2021 PA Super 51 (filed March 23, 2021) ( en banc ). Now that this Court has issued its decision in Lopez , we lift the stay order

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se ntence of time served to twenty

- three (23) months ’ incarceration , as well

as community service, costs of prosecution, and supervision fees. Immediately following the imposition of sentence, Appellant made an oral
motion to waive costs due to financial hardship. T he court declined to make any findings regarding Appellant’s ability to pay, and it denied the oral motion
wi thout prejudice to Appellant’s right to file a petition raising the same issue in the future

. ( See N.T. Guilty Plea Hearing, 2/19/20, at 10). On February 24, 2020 , Appellant timely filed a post

- sentence motion to waive the costs of prosecution due to h i s inability to pay. In the motion, Appellant argued he “is presently without any financial resources that will enable him to pay any costs, and there is no realistic likelihood that he will be able to pay such costs and/or fees in the future.” (Post

- Sent ence Motion, filed 2/24/20, at ¶4 ). Appellant further argued that the court possessed “the authority and duty to consider waiving costs at sentencing based on a defendant’s lack of financial means to pay.” ( Id. at ¶9 ). Consequently, Appellant requested that the court waive costs or schedule an ability

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- pay hearing. The court denied Appellant’s motion by order entered February 27, 2020. This appeal followed. On appeal, Appellant continues to assert that a court must consider a defendant’s ability t o pay prior to including costs as part of a sentence. Appellant relies on Pennsylvania Rule of Criminal Procedure 706(C) for the proposition that a sentencing court has “an affirmative duty” to determineJ

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whether the payment of costs places a financial bur den on a defendant. (Appellant’s Brief at 5 ). Appellant insists “the sentencing court should have considered [ Appellant’s ] ability to pay when imposing costs in this matter.” ( Id. at 6 ). Appellant concludes this Court must vacate his sentence and

reman d the matter for a determination of his ability to pay the costs at issue. We disagree. “[W]hile a trial court has the discretion to hold an ability

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- pay hearing at sentencing, Rule 706(C) only requires the court to hold such a hearing when a defendan t faces incarceration for failure to pay court costs previously imposed on him.” Lopez , supra at 1. “Rule 706(C) does not impose a requirement that a court hold an ability

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- pay hearing before imposing court costs on the defendant at sentencing.” Id. a t 4. In light of our express holding in L opez , the sentencing court did not err in denying Appellant’s request for an ability

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- pay determination under the circumstances. Moreover, although Appellant’s post

- sentence motion indicated he is unlikely to p ay his court costs, there is no evidence of record indicating that Appellant is in immediate peril of imprisonment due to his failure to pay the costs at issue. See id. at 11 (stating “unless and until a defendant is in peril of going to prison,” the mand ate for ability

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does not arise). 3 Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/16/21

_________________ __________ ______ ____ _______ 3 In his brief, Appellant references an “account delinquent notice,” purportedly issued due to his failure to pay the court costs imposed at sentencing. (Appellant’s Brief at 6). We emphasize that Appellant does not state when th e notice was issued, and the notice does not appear in the certified record. See Commonwealth v. Preston , 904 A.2d 1, 6 (Pa.Super. 2006) ( en banc ) , appeal denied , 591 Pa. 663, 916 A.2d 632 (2007) (reiterating that appellate court is limited to considering only materials in ce rtified record).