from the Judgment of Sentence Entered August 16, 2018 In the
Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001260-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
M. Gary-Ravenell appeals from the judgment of sentence,
entered in the Court of Common Pleas of Montgomery County,
after pleading guilty to drug offenses. After careful review,
we vacate and remand for resentencing.
August 18, 2018, Gary-Ravenell entered a negotiated guilty
plea to possession of a controlled substance and possession of
drug paraphernalia.The court sentenced him to one year of
probation, a fine of $50, and also ordered him to pay costs
in the amount of $1, 329.50. Gary-Ravenell filed a timely
notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. He presents the
following issue for our consideration: "Did the
sentencing court err in imposing a fine and costs at
sentencing without making a determination regarding Mr.
Gary-Ravenell's ability to pay?" Appellant's
Brief, at vi.
first note that a claim that the court lacked authority to
impose fines and costs is a challenge to the legality of the
sentence. Commonwealth v. Garzone, 993 A.2d 306 (Pa.
Super. 2010), aff'd, 34 A.3d 67 (Pa. 2012).
Gary-Ravenell claims that neither during his oral guilty plea
colloquy nor at any other time during his plea hearing did
the court discuss the issue of his ability to pay fines and
costs. See N.T. Guilty Plea, 8/16/18, at 2 ("In
exchange for that plea, he would be placed on probation for a
period of one year, and pay a $50 fine plus the costs of
prosecution."); id. at 12 ("He'll pay
the costs on Count 1, and a $50 fine in monthly installments
as directed during the period of his supervision. Costs are
waived on Court 3."). Despite this lack of inquiry, the
court imposed $1, 379.50 for costs of prosecution and a $50
fine as an additional sentence. See Pennsylvania
Commission on Sentencing - Guideline Sentence Form, 9/12/18
(noting $50 fine imposed as restorative sanction part of
sentence); see also Plea Form, 8/16/18, at 2 (noting
"Defendant is sentenced to pay the costs of prosecution,
and a fine of $50 . . . in monthly installments as directed,
and as authorized by law" on Count 1).
9721(a) of our Commonwealth's Sentencing Code sets forth
a trial court's sentencing alternatives; a fine is one of
those alternatives. See 42 Pa.C.S. §
9721(a)(5). Fines may either be imposed as a defendant's
sole sentence or as an additional sentence when the defendant
has derived a pecuniary gain from the crime or the court
opines that a fine is "specially adapted to deterrence
of the crime involved or to the correction of the
defendant." 42 Pa.C.S. §§ 9726(a), (b)(1)-(2).
Pursuant to section 9726(c), a court "shall not
sentence a defendant to pay a fine unless it appears of
record that: (1) the defendant is or will be able to pay the
fine; and (2) the fine will not prevent the defendant
from making restitution or reparation to the victim of the
crime." 42 Pa.C.S. § 9726(c) (emphasis added).
fines, 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"). The distinction between
fines and costs is critical in evaluating the issue presented
in the instant case – whether a defendant is entitled
to an "ability to pay" determination prior to
9721 of the Sentencing Code sets forth mandatory costs that
may be associated with a sentence. Section 9721(c.1) states:
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. 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.  706([C])
(relating to fines or costs).
42 Pa.C.S. § 9721(c.1) (emphasis added). See
also 42 Pa.C.S. § 9728(b.2) (setting forth
mandatory payment of costs by defendant in event court fails
to issue order under section 9728(a) imposing such costs,
"unless the court determines otherwise pursuant to
Pa.R.Crim.P. 706([C]) (relating to fines and costs).").
Pa.R.Crim.P. 706(A), a court may not imprison a defendant
for failing to pay a fine or cost "unless it
appears after a hearing that the defendant is
financially able to pay the fine or costs." Pa.R.Crim.P.
706(A) (emphasis added). Subsection (B) of Rule 706 sets
forth the process that a court must employ to determine the
amount and method of payment for a fine or costs once the
court determines, following a Rule 706(A) hearing, that the
defendant "is without the financial means to
pay[.]" Pa.R.C.P. 706(B). Rule 706(C) requires a court
"consider the burden upon the defendant by reason of the
defendant's financial means" when determining the
amount and method of payment under subsection (B).
Pa.R.Crim.P. 706(C). Thus, Rule 706, which is referenced in
both sections 9721 and 9728 of the Sentencing Code,
necessarily applies to defendants who have first defaulted in
paying a fine or costs or are in imminent danger of default.
See Pa.R.Crim.P. 101(C) ("To the extent
practicable, these rules [of criminal procedure] shall be
construed in consonance with the rules of statutory
construction."); see also 1 Pa.C.S. §
1921(a) ("[E]very [rule] shall be construed, if possible
to give effect to all its provisions."). Accordingly,
the hearing referenced in Rule 706(A) is not a pre-sentence
proceeding that takes place before costs are
imposed; Rule 706 and its safeguards are only triggered once
a defendant fails to pay.
costs are not subject to a pre-sentence
ability-to-pay determination, unlike fines, which are part of
a defendant's actual sentence. See Commonwealth v.
Hernandez, 917 A.2d 332, 336 (Pa. 2007) (Rule 706
"is an adequate procedural tool that supplants 16 [P.S.]
§ 1403 and satisfies . . . constitutional requirements .
. . by ensuring that an indigent [defendant] will be afforded
an opportunity to prove his financial inability to pay the
costs of prosecution before being sentenced to
prison [for failure to pay costs].") (emphasis
added); see also Commonwealth v. Childs, 63 A.3d 323
(Pa. Super. 2013) (same). Rather, costs are a reimbursement
to the government for the expenses associated with a
defendant's criminal prosecution. Commonwealth v.
Wall, 867 A.2d 578, 582 (Pa. Super. ...