J-S05026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DESIREE GAGLIANA : : Appellant : No. 1156 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-0003992-2019
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 02, 2021
Desiree Gagliana appeals from the judgment of sentence, entered in the
Court of Common Pleas of Montgomery County, after she entered a negotiated
guilty plea to possession with intent to deliver methamphetamine, a controlled
substance.1
On February 21, 2020, in accordance with the plea agreement, the trial
court sentenced Gagliana to 11½ to 23 months’ incarceration followed by
three years’ probation. The court further ordered Gagliana to pay the costs
of prosecution and an offender supervision fee. Gagliana filed a post-sentence
motion seeking relief from the imposition of costs and fees on February 24,
2020, which the trial court denied on February 27, 2020, without a hearing.
____________________________________________
1 35 P.S. § 780-113(a)(30). J-S05026-21
On April 6, 2020, Gagliana filed a notice of appeal to this Court.2 Both
Gagliana and the trial court have complied with Pa.R.A.P. 1925. Gagliana’s
sole claim on appeal challenges the trial court’s imposition of the costs of
prosecution and the supervision fee without holding a hearing to consider her
ability, as an indigent person, to pay those costs and that fee. She 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
Gagliana, 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) 3 and ____________________________________________
2 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 filed if they were filed by close of business on May 11, 2020. See In Re: General Statewide Judicial Emergency, Nos. 531 and 532 Judicial Administrative Docket, at 5, Section III (Pa. filed April 28, 2020). Here, Gagliana’s notice of appeal was due on or before March 26, 2020 and was, thus, tolled by the Order of the Supreme Court. Accordingly, we consider her notice of appeal, filed on April 6, 2020, timely filed.
3 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 (Footnote Continued Next Page)
-2- J-S05026-21
Commonwealth v. Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc)
(holding court must hold ability-to-pay hearing when imposing fine), as well
as sections 9721(c.1) and 9728(b.2) of the Sentencing Code.4 See 42 Pa.C.S.
§§ 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
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 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 (emphasis added).
4 Sections 9721(c.1) and 9728(b.2) 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).
-3- J-S05026-21
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,
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, Gagliana is
entitled to no relief.
Gagliana also challenges the court’s imposition of the mandatory5
supervision fee, pursuant to 18 P.S. § 11.1102, without first determining her
ability to pay. Specifically, Gagliana cites to 18 P.S. § 11.1102 (costs for
offender supervision programs), and 37 Pa. Code § 68.21 (Imposition of
Condition),6 for the proposition that the court was required to consider her
ability to pay prior to imposing the fee. ____________________________________________
5 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 the six enumerated factors set forth in section 11.1102(e)(2)(i-vi)). See White, infra at *6; see also Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (finding offender supervision fee mandatory, pursuant to 18 P.S. § 11.1102(c)). 6 Pursuant to 37 Pa. Code § 68.21:
(Footnote Continued Next Page)
-4- J-S05026-21
In Commonwealth v. White, _ A.3d _, 1310 EDA 2020 (Pa. Super.
2021), a panel of this Court considered the same argument, and held that
“[m]erely 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.” Id. at *6. In so
concluding, this Court noted that “neither [18 P.S. § 11.1102, nor 37 Pa.
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J-S05026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DESIREE GAGLIANA : : Appellant : No. 1156 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-0003992-2019
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 02, 2021
Desiree Gagliana appeals from the judgment of sentence, entered in the
Court of Common Pleas of Montgomery County, after she entered a negotiated
guilty plea to possession with intent to deliver methamphetamine, a controlled
substance.1
On February 21, 2020, in accordance with the plea agreement, the trial
court sentenced Gagliana to 11½ to 23 months’ incarceration followed by
three years’ probation. The court further ordered Gagliana to pay the costs
of prosecution and an offender supervision fee. Gagliana filed a post-sentence
motion seeking relief from the imposition of costs and fees on February 24,
2020, which the trial court denied on February 27, 2020, without a hearing.
____________________________________________
1 35 P.S. § 780-113(a)(30). J-S05026-21
On April 6, 2020, Gagliana filed a notice of appeal to this Court.2 Both
Gagliana and the trial court have complied with Pa.R.A.P. 1925. Gagliana’s
sole claim on appeal challenges the trial court’s imposition of the costs of
prosecution and the supervision fee without holding a hearing to consider her
ability, as an indigent person, to pay those costs and that fee. She 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
Gagliana, 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) 3 and ____________________________________________
2 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 filed if they were filed by close of business on May 11, 2020. See In Re: General Statewide Judicial Emergency, Nos. 531 and 532 Judicial Administrative Docket, at 5, Section III (Pa. filed April 28, 2020). Here, Gagliana’s notice of appeal was due on or before March 26, 2020 and was, thus, tolled by the Order of the Supreme Court. Accordingly, we consider her notice of appeal, filed on April 6, 2020, timely filed.
3 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 (Footnote Continued Next Page)
-2- J-S05026-21
Commonwealth v. Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc)
(holding court must hold ability-to-pay hearing when imposing fine), as well
as sections 9721(c.1) and 9728(b.2) of the Sentencing Code.4 See 42 Pa.C.S.
§§ 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
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 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 (emphasis added).
4 Sections 9721(c.1) and 9728(b.2) 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).
-3- J-S05026-21
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,
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, Gagliana is
entitled to no relief.
Gagliana also challenges the court’s imposition of the mandatory5
supervision fee, pursuant to 18 P.S. § 11.1102, without first determining her
ability to pay. Specifically, Gagliana cites to 18 P.S. § 11.1102 (costs for
offender supervision programs), and 37 Pa. Code § 68.21 (Imposition of
Condition),6 for the proposition that the court was required to consider her
ability to pay prior to imposing the fee. ____________________________________________
5 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 the six enumerated factors set forth in section 11.1102(e)(2)(i-vi)). See White, infra at *6; see also Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013) (finding offender supervision fee mandatory, pursuant to 18 P.S. § 11.1102(c)). 6 Pursuant to 37 Pa. Code § 68.21:
(Footnote Continued Next Page)
-4- J-S05026-21
In Commonwealth v. White, _ A.3d _, 1310 EDA 2020 (Pa. Super.
2021), a panel of this Court considered the same argument, and held that
“[m]erely 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.” Id. at *6. In so
concluding, this Court noted that “neither [18 P.S. § 11.1102, nor 37 Pa. Code
§ 68.21] requires a court to first make a determination regarding a
defendant’s ability to pay before imposing the [mandatory supervision] fee.”
Id. (emphasis in original).
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. (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).
-5- J-S05026-21
Here, as in White, the court was not required to make a determination
that Gagliana had the ability to pay the offender supervision fee before
imposing it at sentencing.7 As a result, Gagliana is entitled to no relief from
the court’s imposition of that fee without a prior determination of her ability
to pay. See White, supra. See also Commonwealth v. Childs, 63 A.3d
323, 326 (Pa. Super. 2013) (quoting Commonwealth v. Hernandez, 917
A.2d 332, 337 (Pa. Super. 2007)) (“[The] trial court [need] only [] make a
determination of an indigent defendant’s ability to render payment [on the
costs of prosecution and offender supervision fees imposed] before [that
defendant] is committed [for such non-payment].”).
Judgment of sentence affirmed.
7 Inasmuch as Gagliana conflates costs and fees, we note that these terms
differ. Unlike fines, see 42 Pa.C.S. §§ 9726(a), (b)(1)-(2), which are part of a defendant’s actual sentence, a defendant who has been convicted of a crime may also be liable for the costs of prosecution, which are authorized by statute. See 16 P.S. § 7708; see also 16 P.S. § 1403. It is well-established that “[a] direction to pay costs in a criminal proceeding is not part of the sentence, but is an incident of the judgment. Costs do not form a part of the penalty imposed by the statutes providing for the punishment of the criminal offenses[.]” Commonwealth v. Soudani, 165 A.2d 709, 711 (Pa. Super. 1960); Commonwealth v. Cauffiel, 97 Pa. Super. 202, 205 (Pa. Super. 1930) (liability for costs of prosecution is merely “an incident of the judgment”). Conversely, the court may impose a monthly fee for administrative expenses attendant to offender supervision programs, like the one at issue here, as a condition of supervision. 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).
-6- J-S05026-21
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/2/2021
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