J

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

COMMONWEALTH OF PENNSYLVANIA

v.

KERA COOK
Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 981 EDA 2020 Appeal from the Judgment of Sentence Entered February 21, 2020 In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP

- 46

- CR

- 0007549

- 2019

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

JUDGMENT ORDER BY LAZARUS, J.: Filed: April 22, 2021
Kera Cook appeals from the judgment of sentence, imposed in the Court
of Common Pleas of Montgomery County, after she entered a negotiated guilty
plea to possession of a controlled substance and simple assault . In accordance
with the plea agreement, the trial court sentenced Cook to an aggregate term
of 24 months of probation and ordered her to pay the costs of prosecution

. Cook filed a post

- sentence motion requesting that the court waive costs of
prosecution and/or schedule a hearing to determine her ability to pay. On
February 25, 2020, the court denied Cook’s motion without a hearing. On
April 7, 2020, Cook filed a notice of appeal to this Court. 1 Both Cook and the

_________________ __________ ______ ____ _______

1 Due to the statewide judicial emergency declared as a result of the COVID

19 pandemic, all notices of appeal due to be filed between March 19, 2020, and May 8, 2020, are deemed to have been timely f iled if they were filed by close of business on May 11, 2020. See In Re: General Statewide JudicialJ

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trial court have complied with Pa.R.A.P . 1925. Cook’s sole claim on appeal
challenges the trial court’s imposition of the costs of prosecution without first
holding a hearing to consider her ability, as an indigent person, to pay those

costs. Cook is entitled to no relief.

On March 23 , 2021, this Court issued its decision in Commonwealth
v. Lopez , _ A.3d _, 1313 EDA 2018 (Pa. Super. 2021) (en banc)

. Like Cook,
Lopez challenged the trial court’s imposition of mandatory court costs without
first holding a hearing to determine his ability to pay , asserting that such a
hearing is required under Pa.R.Crim.P. 706(c) 2 and Commonwealth v.

_________________ __________ ______ ____ _______ Emergency , Nos. 531 and 532 Judicial Administrative Docket, at 5, Section III (Pa. filed April 28, 2020). Here, Cook’s notice of appeal was due on or bef ore March 29, 2020 and , thus , was tolled by the o rder of the Supreme Court. Accordingly, we consider her notice of appeal, filed on April 7, 2020, timely filed.

2 Rule 706 provides :
(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 s ingle 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 it s 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 ’ sJ

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Martin , 335 A.2d 424 (Pa. Super. 1975) (holding court must hold ability

- to

pay hearing when imposing fine), as well as sections 9721(c.1) and 9728(b.2)

of the Sen tencing Code. 3 See 42 Pa.C.S.A. §§ 9721(c.1) and 9728(b.2).
In rejecting Lopez’s claim, this Court concluded that “[w]hen the
sections of Rule 706 are read sequentially an d as a whole, as the rules of
statutory construction direct, it becomes clear that [s]ection C only requires a
trial court to determine a defendant’s ability to pay at a hearing that occurs
prior to incarceration, as referenced in [s]ections A and B

. ” Lopez , supra at

5. While the trial court maintains the discretion to conduct an abil ity

- to

- pay hearing prior to imposing costs, “nothing in the Rules of Criminal Procedure,

_________________ __________ ______ ____ _______ fi nancial 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 f inds the defendant is not indigent, the court may impose imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706.

3 Sections 9721(c.1) and 9728(b.2) of the Sentencing Code make the payment of costs by a defendant mandatory even in the absence of a court order requiring such payment unless, in the exercise of its discretion, the court determines otherwise pursuant to Rule 706(C).J

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the Sentencing Code [,] or established case law takes that discretion away
from the trial court unless and until a defendant is in peril of going to prison
for failing to pay the costs imposed on him.” Id. at 11 . Accordingly, Cook is

entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/22/2 1