Com. v. Hoye, N. ( 2021 )

J-S03021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHAN HOYE :
:
: No. 201 WDA 2020
Appeal from the Judgment of Sentence Entered August 6, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004077-2018
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 17, 2021
Nathan Hoye (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to aggravated assault, assault by a prisoner,
aggravated harassment by a prisoner, and recklessly endangering another
person.1 Upon review, we agree with the trial court and the parties that
Appellant’s sentence is illegal because the court failed to determine Appellant’s
eligibility under the Recidivism Risk Reduction Incentive Act (RRRI), 61
Pa.C.S.A. §§ 4501-12. Accordingly, we vacate Appellant’s judgment of
sentence and remand for resentencing.
Appellant’s underlying convictions arose from an incident that occurred
while he was an inmate at the Allegheny County Jail. N.T., 5/6/19, at 7-8.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(3), 2703(a), 2703.1, and 2705.
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On January 24, 2018, Appellant, who is HIV-positive, threw his urine at a
corrections officer. Id. at 8; see also Trial Court Opinion, 9/14/20, at 3. The
urine struck the officer on his head and upper torso, causing the officer to
require medical treatment. N.T., 5/6/19, at 8.
On May 6, 2019, Appellant appeared before the trial court and pled
guilty to the above crimes. On August 6, 2019, the trial court sentenced
Appellant to 80 to 160 months of incarceration.2 Appellant filed a post-
sentence motion on August 12, 2019. The motion was denied by operation of
law on January 9, 2020.3 Appellant filed this timely notice of appeal. Both
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant presents two issues for review:
[1.] Did the [trial court] impose an illegal sentence by not
determining on the record whether [Appellant] was eligible for an
RRRI minimum sentence?
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2 That same day, the trial court sentenced Appellant on a separate docket,
CP-02-CR-9767-2017, to 25 to 50 months of incarceration, after Appellant
pled guilty to five counts of terroristic threats that arose from him sending
threatening letters to an Allegheny County Court of Common Pleas judge. See
N.T., 5/6/19, at 8-9; N.T., 8/6/19, at 23. The trial court ordered the sentence
at that docket to be served concurrently to Appellant’s sentence in the instant
case. See id.
3 While Appellant’s post-sentence motion was pending, he submitted
numerous pro se filings in both the trial court and this Court. As Appellant
has been represented by counsel throughout the trial court and appellate
proceedings, we issued an order on November 6, 2019, directing that all pro
se filings by Appellant be redirected to counsel pursuant to Commonwealth
v. Jette, 23 A.2d 1032 (Pa. 2011).
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[2.] Did the [trial court] abuse its discretion in sentencing
[Appellant] to 80 to 160 months of incarceration?
Appellant’s Brief at 3 (reordered for ease of disposition).
In his first issue, Appellant argues that his sentence is illegal because
the trial court failed to make a determination, on the record, at sentencing,
as to his RRRI eligibility. See id. at 22. In response, the Commonwealth
concedes it “reviewed the transcript of the sentencing hearing and determined
that the question of [A]ppellant’s RRRI eligibility was not raised.”
Commonwealth Brief at 5. The Commonwealth “agrees with the [trial] court
and [A]ppellant that the case must be remanded.” Id.
Because RRRI eligibility “concerns a matter of statutory interpretation
and is, thus, a pure question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Chester, 101 A.3d 56, 60
(Pa. 2014) (citation omitted).
Section 9756(b.1) of the Sentencing Code provides that a trial court
imposing sentence “shall determine if the defendant is eligible for a recidivism
risk reduction incentive minimum sentence under 61 Pa.C.S. Ch. 45.” Id.;
see also 61 Pa.C.S.A. § 4505(a) (“At the time of sentencing, the court shall
make a determination whether the defendant is an eligible defender.”). We
have explicitly 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.” Commonwealth v.
Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).
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In its opinion, the trial court concludes:
In this case, there is no indication in the record that this [c]ourt
determined whether [Appellant] was eligible for an RRRI minimum
sentence. . . . As the transcript does not reflect that this [c]ourt
made that determination, it would be proper for the matter to be
remanded so that determination can be made on the record.
Trial Court Opinion, 9/14/20, at 6-7.
We agree. See N.T., 8/6/19, at 1-25. Accordingly, we vacate
Appellant’s judgment of sentence and remand for the trial court to make an
on-the-record-determination as to Appellant’s eligibility for RRRI.4
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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4 Our disposition renders Appellant’s second issue moot.
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