Com. v. Thornton, T.



    COMMONWEALTH OF                     :     IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                       :           PENNSYLVANIA
                    Appellee            :
            v.                          :
    TAMBER THORNTON,                    :
                                        :     No. 1084 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-0007441-2019


MEMORANDUM BY BENDER, P.J.E.:                         Filed: April 30, 2021

        Tamber Thornton (Appellant) appeals from the February 21, 2020

judgment of sentence of 30 days of probation without verdict,1 plus the costs

of prosecution, imposed following her plea of guilty to one count of possession

of a small amount of marijuana.2 We affirm.

        By way of background, Appellant entered a plea on February 21, 2020.

As part of the plea, the trial court granted the Commonwealth’s motion to

nolle pros one count of possession of drug paraphernalia. During the oral

1 A trial “court may place a person on probation without verdict if the person
pleads [] guilty to any nonviolent offense under [the Controlled Substance,
Drug, Device and Cosmetic Act] and the person proves he is drug dependent.”
35 P.S. § 780-117. “Upon fulfillment of the terms and conditions of probation,
the court shall discharge such person and dismiss the proceedings against

Id. at (3).
2 35

P.S. § 780-113(a)(31)(i).
*Retired Senior Judge assigned to the Superior Court.

colloquy, Appellant answered affirmatively when counsel asked if the

imposition of costs “would be an issue.” N.T., 2/21/2020, at 7. The trial court

nonetheless imposed the costs of prosecution, but referred Appellant to the

probation department to discuss any payment issues, and the probation

department would then notify the court. See

id. at 7-9.

On February 24,

2020, Appellant filed a motion to waive the costs of prosecution due to her

inability to pay. By order dated February 25, 2020, and filed February 27,

2020, the trial court denied Appellant’s motion.

      On April 8, 2020, Appellant filed a notice of appeal.3 On May 6, 2020,

the trial court entered an order directing Appellant to file a concise statement

within 21 days of the entry of the order. Appellant untimely filed her concise

statement on June 15, 2020. Because the trial court addressed the claims

3 Appellant’s notice of appeal was facially untimely. However, on March 16,
2020, our Supreme Court issued an order providing that “President Judges of
the Superior Court ... are authorized ... [t]o suspend time calculations for
the purposes of time computation relevant to court cases or other judicial
business, as well as time deadlines, subject to constitutional restrictions[.]”
In re: General Statewide Judicial Emergency – Authorization for
Superior Court and Commonwealth Court, 

228 A.3d 1281

(Pa. 2020). In
its subsequent orders, the Supreme Court, inter alia, generally suspended “all
time calculations for purposes of time computation relevant to court cases or
other judicial business, as well as time deadlines.” In re: General Statewide
Judicial Emergency, 

228 A.3d 1283

(Pa. 2020). On April 28, 2020, the
Supreme Court further ordered that “legal papers or pleadings (other than
commencement of actions where statutes of limitations may be in issue) which
are required to be filed between March 19, 2020, and May 8, 2020, generally
shall be deemed to have been filed timely if they are filed by close of business
on May 11, 2020.” In re: General Statewide Judicial Emergency, 

A.3d 1015

(Pa. 2020) (emphasis omitted). Based on the foregoing, we
conclude that Appellant’s notice of appeal was timely filed.


raised in Appellant’s concise statement in its Rule 1925(a) opinion, we decline

to find waiver.   See Commonwealth v. Brown, 

145 A.3d 184

, 186 (Pa.

Super. 2016) (“[W]here the trial court addresses the issues raised in an

untimely Rule 1925(b) statement, we need not remand but may address the

issues on their merits.”).

      On appeal, Appellant presents a single issue for our review: “Did the

sentencing court err in imposing costs of prosecution on an indigent person

absent consideration of their financial means and declining to consider defense

counsel’s motion on the same?” Appellant’s Brief at 2.

      The trial court relied on this Court’s decision in Commonwealth v.


263 A.3d 323

(Pa. Super. 2013), which held that defendants are not

entitled to pre-sentence hearings on the ability to pay costs.        See also

Commonwealth v. Hernandez, 

917 A.2d 332

, 336-37 (Pa. Super. 2007).

Pursuant to Childs, the trial court concluded that it was not required to hold

an ability-to-pay hearing prior to the imposition of costs or denying Appellant’s

motion to waive costs. Instead, the trial court found that “Appellant must

make an effort to pay the costs [] before th[e trial] court grants a hearing to

ascertain her ability to pay.”       Trial Court Opinion, 7/15/2020, at 3


      Appellant argues that, based on Commonwealth v. Martin, 

335 A.2d


(Pa. Super. 1975) (en banc), and Commonwealth v. Mead, 

446 A.2d



971 (Pa. Super. 1982), Pa.R.Crim.P. 706(C)4 applies at sentencing.

Id. at 4.

While Appellant acknowledges this Court’s holdings in Childs and Hernandez,

she argues that these “decisions ignore the en banc precedent of Martin as

well as the plain text of [] Rule 706(C).” Appellant’s Brief at 4-5.

        “This appeal implicates the interpretation of the Rules of Criminal

Procedure, which presents a question of law.          Therefore, our standard of

review is de novo, and our scope of review is plenary.” Commonwealth v.

Lopez, ___ A.3d ___, 

2021 Pa. Super. 51

, *1 (filed March 23, 2021) (en

banc) (citation omitted).

        In reviewing a nearly identical argument to the one made by Appellant

herein, this Court “reaffirm[ed] Childs’ holding that a defendant is not entitled

4   Rule 706 provides in pertinent part as follows.

        (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….

        (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
        financial means, including the defendant’s ability to make
        restitution or reparations.

Pa.R.Crim.P. 706(A)-(C).

to an ability-to-pay hearing before a court imposes court costs at sentencing.”


2021 Pa. Super. 51

, at *5.

      When the sections of Rule 706 are read sequentially and as a
      whole, as the rules of statutory construction direct, it becomes
      clear that Section 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 Sections A and B.

Id. at *2.

      Although the Sentencing Code provides for the mandatory imposition of

costs at sentencing and references Rule 706(C), see 42 Pa.C.S. §§ 9721(c.1),

9728(b.2), this Court held that

      such a reference in no way places an affirmative duty on a
      sentencing court to hold an ability-to-pay hearing prior to
      imposing mandatory costs upon a defendant. Rather, when read
      in the context of the mandate to impose costs, those references
      merely make it clear that even though the imposition of court
      costs upon a defendant is mandatory, the defendant remains
      entitled to an ability-to-pay hearing before being imprisoned for
      defaulting on those mandatory costs.


2021 Pa. Super. 51

, at *4. Until that time, it is within the trial court’s

discretion to conduct such a hearing. See

id. at *5

(“[N]othing in the Rules

of Criminal Procedure, 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. It is only at that

point that the mandate for an ability-to-pay hearing arises.”).

      Here, Appellant is not being threatened with incarceration for her failure

to pay the costs of prosecution. Therefore, nothing has triggered Rule 706(C).

Upon review, we conclude the trial court did not abuse its discretion in


declining to hold an ability-to-pay hearing prior to imposing costs at

sentencing or prior to denying Appellant’s motion to waive costs. See


(“Because [Lopez] had

not yet been threatened with incarceration as a result

of a default, we hold that the trial court did not err by imposing mandatory

court costs upon [Lopez] without first holding an ability-to-pay hearing.”).

Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 4/30/21


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