PA Superior Court: Trial Court Must Hold Ability to Pay Hearing Before Finding Parolee in Violation

The Pennsylvania Superior Court has decided the case of Commonwealth v. Reed, finding that the trial court erred in sentencing the defendant to prison for violating parole by failing to pay costs and fines without first holding a hearing to make sure that the defendant was actually able to make those payments. Courts may sentence a defendant to prison for failing to pay restitution, court costs and fines, but they can only do that where the failure to pay is willful. Therefore, a court must first hold a hearing to determine whether or not a defendant can afford to pay before sentencing a defendant to jail.

The Facts of Reed

 The defendant was given a sentence of six months to two years, minus a day, of incarceration. In addition, he was ordered to refrain from illicit drug use, pay fines and costs, complete a drug and alcohol evaluation and treatment, and report to probation. About six months later, the court granted parole. Then, 16 months later, the defendant received notice that he had allegedly violated his parole.

The defendant appeared for a violation of probation (VOP) hearing. The trial court found the defendant violated his parole by (1) using illicit drugs, (2) failing to pay court-ordered fines and costs, (3) failing to submit to a drug and alcohol evaluation, and (4) failing to report to his parole officer. The court revoked the defendant’s parole and sentenced him to his back time. Back time is the time during which the defendant would have been on parole had he not violated.  

The Issues on Appeal 

On appeal, the defendant raised three issues. First, he challenged the adequacy of the notice of the parole violation. The defendant argued that the notice sent to him through the mail did not adequately inform him of all the details of the alleged parole violation. The Superior Court found this issue waived because the defendant had not brought it up in the trial court.

Second, the defendant argued that the conditions of parole which he was accused of violating had not actually been made a part of his sentence, and he could not violate something which was not part of his sentence. The Superior Court rejected this challenge, finding that paying fines and costs, submitting to drug assessments, refraining from the use of illegal drugs, and reporting were all part of the defendant’s sentence.

Finally, the defendant argued that the trial court erred in violating him for failure to pay costs and fines without first holding an ability to pay hearing. The Superior Court cited Pennsylvania Rule of Criminal Procedure 706(A). The rule provides:

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.

The Superior Court further cited Commonwealth v. Cooper, recognizing that when a defendant is found in violation of their parole and recommitted, if failure to pay was part of the violation, then the defendant is entitled to an ability to pay hearing. Here, the Superior Court found there was an error by the trial court.

The Superior Court’s Ruling

The Superior Court ruled that even though the trial court properly found violations of parole and sentenced the defendant based on those violations, the trial court was required to hold an ability to pay hearing before ordering any sentence of incarceration. The trial court erred in failing to give the defendant the opportunity to establish his inability to pay his costs and fines prior to imposing an incarceration sentence. Therefore, the court vacated the sentence and remanded the case for an ability to pay hearing and re-sentencing.

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