J-S05021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KERA COOK 

Appellant

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 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 

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1 Due to the statewide judicial emergency declared as a result of the COVID19 pandemic, all notices of appeal due to be filed between March 19, 2020, 

and May 8, 2020, are deemed to have been timely filed if they were filed by 

close of business on May 11, 2020. See In Re: General Statewide Judicial 
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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. 

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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 

before March 29, 2020 and, thus, was tolled by the order 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 single 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 

its 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’s 
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Martin, 335 A.2d 424 (Pa. Super. 1975) (holding court must hold ability-topay hearing when imposing fine), as well as sections 9721(c.1) and 9728(b.2) 

of the Sentencing 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 and 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 ability-to-pay 

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

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financial 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 finds 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). 
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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: 4/22/21