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Finally, the Lopez decision also clarifies one other important
point: court costs are not " mandatory " when a defendant cannot
afford to pay them. The Court specifically phrased the question
presented as what Rule 706(C) requires of courts when they impose
" mandatory costs " at sentencing, and it noted that Mr. Lopez owed
only " mandatory court costs. " 22
It then went on to repeatedly
state that Rule 706(C) allows courts to make " a post-sentence
determination of the amount and method of payment " of costs-
including " modification or waiver of costs upon a proper showing
of insufficient financial means. " 23
In other words, the only costs
at issue in Lopez were mandatory, and the Court never suggested
that such costs were not subject to modification or waiver; it instead
held the opposite. This is consistent with the legislative enactments
that specify that a defendant must pay costs " unless the court
determines otherwise pursuant to Pa.R.Crim.P. No. 706(C) (relating
to fines or costs), " since those statutes also specify they apply " [n]
otwithstanding any provision of law to the contrary. " 24
After Lopez,
no costs are " mandatory " for a defendant who cannot afford them
because trial courts have the authority to " modif[y] " or " waive[] "
all costs if a defendant defaults and is unable to pay.
Taken together, these points mean that trial courts may consider
a defendant's ability to pay costs at sentencing and reduce or waive
those costs, but whether to do so is within the court's discretion.
However, if a defendant later defaults on payment of costs and is
found to be unable to pay, the trial court has a duty to consider
whether the defendant can afford to pay that amount of costs and
whether they should be reduced or waived, even if the costs are
otherwise mandatory.
The Legislature's Subsequent Amendment to Allow Waiving Fines
and Costs Upon Default
Two months after Lopez, the legislature enacted a statutory
amendment that gives courts more options when collecting fines
and costs. As is relevant to this article, Act 163 of 2022 amended
Section 9730 to provide courts of common pleas and magisterial
district courts with express statutory authority to reduce or waive
fines and costs in summary and criminal cases. This is the first time
that magisterial district courts have had this authority, and it brings
those courts into parity with the common pleas courts.
The waiver authority is discretionary for the court, not mandatory,
and courts can use it in one of two circumstances post-sentencing. If
a defendant is not currently on a payment plan, then the fines and
costs may be reduced or waived if the defendant has defaulted and
the judge determines that the defendant is " without the financial
means to pay . . . immediately or in a single remittance. " 25
If the
defendant is currently on a payment plan, then the court may
reduce or waive the debt if the defendant either defaults or advises
the court that " default is imminent. " 26
The amendments to Section 9370 and the court's waiver authority
appear to apply to all fines and costs when a defendant cannot
afford them, including those traditionally viewed as " mandatory. "
The one exception is costs imposed under Section 1101 of the Crime
56 For The Defense l Vol. 7, Issue 4
Victims Act, which are the Crime Victim Compensation and Victim
Witness Service costs. Courts cannot waive these under the revised
Section 9730. Still, including these provisions as an exception to the
general waiver rule shows that the legislature otherwise intends
for all other fines and costs to be waivable. Section 1101 specifies
that those costs " shall " be paid " notwithstanding any statutory
provision to the contrary, " 27
and Pennsylvania's courts have long
viewed these Section 1101 costs as a quintessential " mandatory $60
assessment. " 28
If the legislature did not intend for all other fines
and costs to be waivable under Section 9730, it would not have
needed to carve out the Section 1101 costs from this provision. The
result is that all fines and costs other than the Section 1101 costs can
now be waived whenever a defendant defaults.
The other consequence of the amendments to Section 9730 is
that Lopez also applies to fines upon default. All of the discussion in
Lopez regarding a court's " duty " under Rule 706 when a defendant
defaults are premised on the text of Rule 706, which on its face
applies to both " payment of a fine or costs. " Thus, when the Court
held that trial courts must consider " post-sentence modification
or waiver of costs upon a proper showing of insufficient financial
means, " that reasoning now also applies to fines, since the
legislature has made fines waivable upon default in the same way
that costs are.
What Defense Counsel Should Do When the Client Cannot Afford
to Pay All or Some of the Fines and Costs
Lopez offers two paths out from under the burden of
unaffordable court costs: one at sentencing, the other after time
has passed and the defendant is unable to pay the costs. Section
9730 is now consistent with Lopez after a defendant defaults, but it
builds on Lopez by permitting waiver of both fines and costs. Both
paths depend on the defendant's ability to present evidence that
the defendant will not be able to pay some or all of the debt.
As is often the case, the place to start is by speaking with the
client and identifying what, if anything, the client could afford to
pay. Counsel representing indigent defendants should regularly and
routinely ask courts not to impose any costs if their clients cannot
afford to pay anything-something that Lopez leaves in the court's
discretion and that should also be familiar to courts since they must
do so already when imposing discretionary fines. Receiving meansbased
public assistance like food stamps, Supplemental Security
Income ( " SSI " ) from the Social Security Administration, or Medicaid
is a good indication that the client may not be able to pay anything,
since the government has already determined that the person is
unable to afford basic necessities.
For clients who can afford to pay something, identify a monthly
installment payment that would be affordable, considering income
and expenses like housing, utilities, food, medical care, dependent
care, and transportation. This serves two purposes. First, it will
allow counsel to help the client work out an affordable payment
plan with the court. Payment plans are often overlooked until the
defendant has failed to pay for months or years, but Rule 706(B)
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