Com. v. Shields, T. ( 2017 )

J-A24016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE TYROE SHIELDS
Appellant No. 1174 WDA 2016
Appeal from the Judgment of Sentence Dated July 11, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008505-2015
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
JUDGMENT ORDER BY SOLANO, J.: FILED: SEPTEMBER 29, 2017
Appellant Tyree Tyroe Shields appeals from the judgment of sentence
imposed after he was convicted, following a bench trial, of two counts of
robbery – threat of immediate serious injury; two counts of manufacture,
delivery, or possession with intent to manufacture or deliver a controlled
substance; two counts of intentional possession of a controlled substance by
a person not regulated; two counts of firearms offenses; and simple
assault.1 We vacate the judgment of sentence and remand for resentencing,
which shall include a determination of whether Appellant is eligible for a
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1 18 Pa.C.S. § 3701(a)(1)(ii), 35 P.S. § 780-113(a)(30), 35 P.S. § 780-
113(a)(16), and 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 2701(a),
respectively.
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reduced sentence under the Recidivism Risk Reduction Incentive (“RRRI”)
Act.2
Appellant was convicted of all of the counts on which he was charged.
He was sentenced on July 11, 2016, to an aggregate period of incarceration
of 2 to 4 years on one robbery count and a consecutive sentence of 1 to 3
years on one of the firearms counts. No additional penalty was imposed on
the remaining counts. Trial Ct. Op. at 2. On July 28, 2016, Appellant filed a
post-sentence motion, which the trial court denied on August 8, 2016. On
August 10, 2016, Appellant timely appealed.
Appellant raises the following issues:
[I.] Whether [Appellant]’s sentence is illegal when the trial
court failed to determine, on the record at the time of
sentencing, whether [Appellant] is an eligible offender under the
Recidivism Risk Reduction Incentive Act, thereby violating 61
Pa.C.S.A. § 4505(a)?
[II.] Whether the trial court abused its discretion in not
granting [Appellant]’s counseled request to accept his post-
sentence motion nunc pro tunc, thereby preventing him from
raising on direct appeal a challenge to the discretionary aspects
of his sentence?
Appellant’s Brief at 5 (issues re-numbered; suggested answers omitted).
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2 61 Pa.C.S. §§ 4501-4512. The RRRI Act “is intended to encourage eligible
offenders committed to [custody] to participate in and successfully complete
evidence-based programs under this chapter that reduce the likelihood of
recidivism and improve public safety.” Id. § 4504(b). “The RRRI statute
offers, as an incentive for completion of the program, the opportunity for
prisoners to be considered for parole at the expiration of their RRRI
minimum sentence. 61 Pa.C.S.A. § 4506.” Commonwealth v. Robinson,
7 A.3d 868, 872 (Pa. Super. 2010).
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Appellant contends that his sentence is illegal because the trial court
failed to determine on the record at the time of sentencing whether he is an
eligible offender under the RRRI Act. Appellant’s Brief at 13, 21. The
Commonwealth agrees that, “since the judge failed to determine on the
record at the time of sentencing whether Appellant was eligible for the RRRI
program, the sentence is illegal and the matter must be remanded” for
resentencing. Commonwealth’s Brief at 7; see also id. at 6. The trial court
did not address this issue.3
“Our scope of review of challenges to the legality of a sentence is
plenary, and the standard of review is de novo.” Commonwealth v.
Milhomme, 35 A.3d 1219, 1221 (Pa. Super. 2011). Under 61 Pa.C.S.
§ 4505(a): “At the time of sentencing, the court shall make a determination
whether the defendant is an eligible offender” under the RRRI Act. 61
Pa.C.S. § 4505(a) (emphasis added). This determination therefore is
compulsory. Accordingly, we agree with the parties that Appellant’s
sentence is illegal due to the trial court’s failure to make a determination of
Appellant’s RRRI eligibility on the record at the time of sentencing, and the
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3 Although Appellant’s RRRI issue was not raised in his post-sentence motion
or in his Pa.R.A.P. 1925(b) statement, this Court has 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, the
sentence is illegal,” and this “issue presents a non-waivable challenge to the
legality of [the] sentence.” Robinson, 7 A.3d at 871. Thus, we may not
find this issue waived.
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matter must therefore be remanded for resentencing.4 As we are remanding
for resentencing, we need not address Appellant’s second issue as to
whether the court abused its discretion by denying his request to file a post-
sentence motion nunc pro tunc.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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4 We make no determination as to whether Appellant qualifies as an eligible
offender pursuant to the RRRI Act.
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