Com. v. Naylor, R. ( 2016 )

J-S74015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
V.
RICHARD NAYLOR
Appellant No. 8 EDA 2015
Appeal from the Judgment of Sentence November 12, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004974-2010
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 24, 2016
Appellant appeals from the judgment of sentence entered in the Court
of Common Pleas of Delaware County following the rew,cadon of his
probation. Upon review, we are constrained to vacate the judgment of
sentence and remand for the trial court to determine properly Appellant's
eligibility under the Recidivism Risk Reduction Incentive Act ("RRRI Act"), 61
Pa.C.S.A. §§ 4501-4512.
The relevant facts and procedural history are as follows: On August 5,
2011, Appellant entered a negotiated guilty plea to the charges of indecent
assault, endangering the welfare of a child, corruption of minors, and
* Former Justice specially assigned to the Superior Court.
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hindering apprehension.' Following the Sexual Offenders Assessment
Board's conclusion that Appellant was not a sexually violent predator,
Appellant was sentenced on November 22, 2011, in accordance with his plea
agreement. Specifically, Appellant was sentenced to one year less a day to
two years less a day in prison for indecent assault; five years probation for
endangering the welfare of a child, to run consecutively to his sentence for
indecent assault; five years probation for corruption of minors, to run
consecutively to his sentence for indecent assault and endangering the
welfare of a child; and one year less a day to two years less a day in prison
for hindering apprehension, to run concurrently with his sentence for
indecent assault. Thereafter, Appellant filed neither post- sentence motions
nor a direct appeal.
In August 2014, Appellant was accused of violating his probation with
regard to the offenses listed supra, and on November 12, 2014, represented
by counsel, he proceeded to a Gagnon 112 hearing. Appellant stipulated to
a technical violation of his probation, and the trial court revoked Appellant's
probation. The trial court then resentenced Appellant to eighteen months to
thirty -six months in prison for endangering the welfare of a child and five
years probation for corruption of minors, the sentences to run consecutively.
Appellant was additionally ordered to complete the sex offender program
' 18 Pa.C.S.A. §§ 3126, 4304, 6301, and 5105, respectively.
2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).
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and was given credit for time served. No further penalty was imposed for
the remaining convictions. Appellant did not file post- sentence motions;
however, he filed a timely appeal.3
Appellant presents the following issue:
Whether the eighteen month to thirty -six month term of state
confinement for endangering the welfare of children is illegal
since the court failed to make a RRRI determination at the time
of sentencing?
Appellant's Brief at 5.
Appellant contends that, in Pennsylvania, the trial court is statutorily
required to determine, at the time of sentencing, whether the defendant is
an eligible offender under the RRRI Act. He asserts that, in this case, the
trial court failed to make a proper determination regarding his RRRI
eligibility, and thus, since there is no statutory authorization for his
particular sentence, his sentence is illegal. Without conceding that Appellant
is RRRI eligible, the Commonwealth notes that it is proper to vacate the
instant sentence and remand for the trial court to make an on- the -record
determination regarding Appellant's RRRI eligibility. For the reasons
discussed infra, we agree.
3 In response to the trial court's Pa.R.A.P. 1925(b) order, counsel filed a
statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).
Accordingly, the trial court filed a brief Pa.R.A.P. 1925(a) opinion indicating
it was not addressing the merits of any potential appellate issues.
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Initially, we note that Appellant presents his claim for the first time on
appeal. Generally, claims raised for the first time on appeal are waived;
however, this Court has held that a claim asserting the trial court failed to
make a statutorily required determination regarding a defendant's eligibility
for an RRRI minimum sentence, implicates the legality of a sentence and is
non-waivable. See Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super.
2014) (indicating that a challenge to the trial court's failure to apply a RRRI
minimum is a non-waivable legality of sentencing claim). "The determination
as to whether the trial court imposed an illegal sentence is a question of law;
our standard of review in cases dealing with questions of law is plenary."
Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation
omitted).
Moreover, with regard to sentences imposed after a defendant violates
his probation, we have explained that "upon revocation of probation, the
sentencing alternatives available to the court shall be the same as were
available at the time of initial sentencing." 42 Pa.C.S.A. § 9771. "[W]here
probation is violated, the trial court is free to impose any sentence permitted
under the Sentencing Code." Commonwealth v. Partee, 86 A.3d 245, 249
(Pa.Super. 2014) (citations omitted).
The RRRI Act provides that, "[a]t the time of sentencing, the court
shall make a determination whether the defendant is an eligible offender."
61 Pa.C.S.A. § 4505. If the trial court finds the defendant to be an eligible
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offender, or if the prosecuting attorney waives the eligibility requirements
under Section 4505(b), the trial court must calculate minimum and
maximum sentences, and then impose the RRRI minimum sentence. See
id. As our Supreme Court has indicated, the RRRI Act requires trial courts,
upon consideration of the factors set forth in 61 Pa.C.S.A. § 4503 (defining
"eligible offender"), to determine at the time of sentencing whether the
defendant is an "eligible offender." Commonwealth v. Chester, 627 Pa.
429, 101 A.3d 56 (2014).
The Sentencing Code was amended, effective November 24, 2008, to
include the following section requiring the trial court to determine RRRI
eligibility:
(b.1) Reelivism risk reduction incentive mir'rnum
sentence.-The court shall determine if the defendant is
eligible for a recidivism risk reduction incentive minimum
sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism risk
reduction incentive). If the defendant is eligible, the court shall
impose a recidivism risk reduction incentive minimum sentence
in addition to a minimum sentence and maximum sentence
except, if the defendant was previously sentenced to two or
more recidivism risk reduction incentive minimum sentences, the
court shall have the discretion to impose a sentence with no
recidivism risk reduction incentive minimum.
42 Pa.C.S.A. § 9756(b.1) (emphasis added).
Moreover, in Common-tee- ft'-! v. 17C-inson, 7 A.3d 868, 871
(Pa.Super. 2010), this Court held that "where the trial court fails to make a
statutorily required determination regarding a defendant's eligibility for an
RRRI minimum sentence as required" in accordance with the RRRI Act and
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Sentencing Code, "the sentence is illegal." "'":pb. ;d:::Yri, 7 A.3d at 871. Thus,
"[w]hen a court imposes a sentence of imprisonment in a state correctional
facility, the court must also determine if the defendant is eligible for an RRRI
Act minimum sentence[.]" Commonwea:th v. Hansley, 616 Pa. 367, 47
A.3d 1180, 1187 (2012) (citation omitted).
In the case sub judice, the issue of whether Appellant was RRRI
eligible was not discussed at the revocation sentencing hearing and the trial
court made no determination or inquiry on the record. While the written
sentencing order contains a notation "Not RRRI eligible," there is no
indication this determination was made by the trial court in consideration of
the required statutory factors.
Accordingly, since the trial court was statutorily required to make a
determination of Appellant's RRRI eligibility pursuant to 61 Pa.C.S.A. § 4503
(defining "eligible offender") when it sentenced Appellant to eighteen months
to thirty-six months in prison for violating his probation, and the record fails
to reveal the trial court did so, we have no choice but to vacate the
judgment of sentence and remand for the trial court to determine properly
Appellant's RRRI eligibility. See Robinson, 7 A.3d at 870-71.
Judgment of sentence vacated. Case Remanded. Jurisdiction
relinquished.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016
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