Com. v. Green, S.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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SHAMIRA RASHEENA GREEN :

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Appellant : No. 1146 MDA 2025

Appeal from the Judgment of Sentence Entered July 9, 2025 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002437-2024

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E. MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 17, 2026 Shamira Rasheena Green appeals from the judgment of sentence imposed following her guilty plea to disorderly conduct and retail theft.1 Green argues the court abused its discretion in failing to consider her financial hardship when imposing the costs of prosecution at sentencing. We find that Green has failed to raise a substantial question and affirm.

Green, represented by court-appointed counsel, entered an open guilty plea to disorderly conduct as a third-degree misdemeanor and to retail theft, a summary offense. Green waived a pre-sentence investigation report and proceeded to sentencing. Green’s counsel informed the court that prior to the incident giving rise to the charges, Green “was undergoing a period of housing instability and financial instability” and that while “she is now in stable

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1 18 Pa.C.S.A. §§ 5503(a)(4) and 3929(a)(1).

housing,” she remains unemployed. N.T., 7/9/25, at 4. The court sentenced Green to consecutive sentences of six months’ probation and 90 days’ probation. The court also sentenced her to pay the costs of prosecution.

Green filed a post-sentence motion to modify sentence. Green’s argument, in its entirety, was as follows:

3. Ms. Green moves for reconsideration of the costs imposed by this [c]ourt as part of her sentence—including both the costs of prosecution and the costs of supervised probation.

4. In light of Ms. Green’s financial status, the fees imposed would subject her to substantial hardship.

Post Sentence Motion, July 18, 2025, at ¶¶ 3-4. Green requested a hearing.

The court denied the motion. It found that “[p]ursuant to 42 Pa.C.S.A.

§ 9721(c.1), a sentencing court is required to order a defendant to pay costs as a part of sentencing.” Trial Court Opinion, Oct. 20, 2025, at 1 (footnote omitted). The court stated, “The imposition of such costs does not require an assessment of the defendant’s ability to pay at the time of sentencing.” Id. at 2 (citing Commonwealth v. Lopez, 280 A.3d 887, 910-911 (Pa. 2022)). It noted that under Pa.R.Crim.P. 706, Green would be entitled to a hearing on her ability to pay the mandatory costs of prosecution, should the Commonwealth seek to enforce payment. Id. at 2-3. The order denying the motion also notified Green that she could ask the probation office to waive the costs of her supervision. See Order, July 21, 2025, at 1. This appeal followed.

Green raises one issue:

I. Did the court abuse its discretion in denying [Green’s] post-

sentence motion where, at the time of sentencing, [Green] was

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unemployed and the court held no hearing to assess [Green’s]

ability to pay court and other costs?

Green’s Br. at 8 (capitalization regularized).

Green argues the court abused its discretion in failing to hold a hearing on her ability to pay the costs imposed at sentencing after she filed a post- sentence motion alerting the court that a default on payment would be imminent. She asserts that in Commonwealth v. May, 271 A.3d 475, 484 (Pa.Super. 2022), this Court stated that a sentencing court has the discretion to hold a hearing on the defendant’s ability to pay at the time of sentencing, rather than wait until a default. Green’s Br. at 16; see also id. at 15 (citing 42 Pa.C.S.A. § 9721(c.1) (“The provisions of this subsection do not alter the court’s discretion under Pa.R.Crim.P. No. 706(C)”) and Pa.R.Crim.P. 706(C) (“The court, in determining the amount . . . 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”). Green argues that the “prudent time” for the court to consider a defendant’s ability to pay is whenever the defendant has advised the court of an imminent default. Id. at 16 (citing Pa.R.Crim.P. 706(D) (“the defendant may request a hearing when . . . the defendant advises the court that [a] default [of a payment] is imminent”)). Green claims that imposing costs at sentencing when “it is evident that a person cannot meet their obligation and will go into default” is “manifestly unreasonable.” Id. at 20.

Green does not argue her sentence is illegal, but claims the court abused its discretion in relation to her sentence. Before we review a discretionary

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sentencing claim, we must determine whether the appellant’s Rule 2119(f) statement of the reasons relied upon for allowance of appeal raises a substantial question. Commonwealth v. Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023). “A substantial question exists when the appellant makes a colorable argument that the sentencing judge’s actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.” Id. We may not look past the Rule 2119(f) statement and statement of questions involved in determining whether a substantial question exists. Commonwealth v. Ratliff, 328 A.3d 1042, 1056 (Pa.Super. 2024), appeal denied, 339 A.3d 351 (Pa. 2025).

In her Rule 2119(f) statement, Green asserts she raised a substantial question that her sentence violates sentencing norms:

In the case sub judice, the sentencing court acted contrary to the fundamental norms underlying the sentencing process—

specifically the rehabilitative needs of the defendant, where the court determined that a hearing on Ms. Green’s post-sentence motion was not necessary. The trial court failed to consider Ms.

Green’s unemployment status, her ability to pay, and the financial burden her sentencing would have on her rehabilitation.

Green’s Br. at 14.

Green has failed to raise a substantial question. Section 9721(c.1) of the Sentencing Code requires the court to impose costs on a defendant:

(c.1) Mandatory payment of costs.--Notwithstanding the provisions of section 9728 (relating to collection of restitution, reparation, fees, costs, fines and penalties) or any provision of law to the contrary, in addition to the alternatives set forth in subsection (a), the court shall order the defendant to pay costs.

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In the event the court fails to issue an order for costs pursuant to section 9728, costs shall be imposed upon the defendant under this section. No court order shall be necessary for the defendant to incur liability for costs under this section. The provisions of this subsection do not alter the court’s discretion under Pa.R.Crim.P.

No. 706(C) (relating to fines or costs).

42 Pa.C.S.A. § 9721(c.1).

Rule of Criminal Procedure 706 is titled “Fines and Costs.” It states,

(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 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).

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In Commonwealth v. Lopez, the Supreme Court found that Section 9721(c.1) requires the court to impose costs on the defendant, regardless of whether the defendant can pay them. 280 A.3d at 900. It further held that Rule 706(C) “does not require the trial court to consider a defendant’s ability to pay prior to imposing mandatory court costs at sentencing,” id. at 897, noting that such an interpretation “would place the rule directly at odds with Section[] 9721(c.1),” id. at 900. The Court explained, “Rule 706(C) refers to a follow-on, post-sentence determination upon a finding of default and inability to pay, not an initial determination at sentencing.” Id. at 903; see also May, 271 A.3d at 483 (“When viewed in its proper context, it is clear that Rule 706(C) only requires the court to hold an ability-to-pay hearing when a defendant faces incarceration for failure to pay court costs previously imposed on him”).

Thus, the court has no authority to waive the costs, only to address the repayment plan, and is not required to hold a hearing until the defendant is threatened with incarceration for a default. Commonwealth v. Shanholtz, 295 A.3d 261, 264 (Pa.Super. 2023); accord Commonwealth v. Williams, No. 2753 EDA 2025, 2026 WL 1776981, at *3-*4 (Pa.Super. filed June 15, 2026) (unpublished mem.); Commonwealth v. Kettering, Nos. 140 and 141 WDA 2025, 2025 WL 2612694, at *3-*5 (Pa.Super. filed Sept. 10, 2025) (unpublished mem.).

Although this Court has stated that “a trial court has the discretion to hold an ability-to-pay hearing at sentencing,” Commonwealth v. Lopez, 248

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A.3d 589, 590 (Pa.Super. 2021), affirmed, 280 A.3d 887 (Pa. 2022), we do not believe Green has shown a substantial question about its not doing so here. She has not demonstrated that the decision not to hold such a hearing here contravened a sentencing norm. As the above law makes clear, such an assessment does not normally happen until the Commonwealth seeks to incarcerate the defendant for a default. The mandatory imposition of costs at sentencing is the norm, and the court here did not contradict that norm.

While Green asserts in her Rule 2119(f) statement that the failure to assess her ability to pay violates a sentencing norm because requiring payment will frustrate her rehabilitative needs—a topic the court is required to consider when imposing sentence, see 42 Pa.C.S.A. § 9721(b)—the court does not have the authority under the Sentence Code to waive the costs. Moreover, Green did not make any argument to the trial court regarding the effect of the imposition of costs on her ability to rehabilitate. Therefore, this argument is waived. See Pa.R.A.P. 302(a); see also Snyder, 289 A.3d at 1126 (stating requirement that appellant must preserve discretionary sentencing claim in the trial court). Nor has Green raised any particular facts in her statement of questions involved or her Rule 2119(f) statement that makes the court’s decision in the instant case appear, on its face, to be an abuse of discretion.

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Because Green has not raised a substantial question, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/17/2026