Com. v. Durrett, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appe||ee
V.
THOMAS J. DURRE``|_|'
Appellant No. 1513 WDA 2015
Appeal from the Judgment of Sentence September 3, 2015
In the Court of Common P|eas of A||egheny County
Criminal Division at No(s): CP-02-CR-0007986-2014
CP-02-CR-0012775-2014
CP-02-CR-0013501-2014
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 12, 2017
Thomas J. Durrett appeals from his probation revocation sentences
(CP-02-CR-0007986-2014; CP-02-CR-0012775-2014; CP-02-CR-0013501-
2014) entered in the Court of Common P|eas of A||egheny County. Durrett
Was sentenced to an aggregate 41/2 to 9 years' incarceration on all three
cases. After careful review, We vacate and remand for resentencing.
The trial court aptly set forth the relevant facts of the case as follows:
[Durrett] Was charged at CC 201407986 With Aggravated Assault
- Bodily Injury to a Police Officer, Resisting Arrest, Harassment
and Public Drunkenness in relation to an incident concerning a
fight with his girlfriend and his subsequent kicking of the police
officer who arrested him. He appeared before this Court on
October 27, 2014 and pled guilty to an amended count of Simple
* Retired Senior Judge assigned to the Superior Court.
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Assault, Resisting Arrest and Harassment. He was immediately
sentenced to time served (10 days) with an additional term of
probation of 18 months with special conditions including no
contact with the victim and drug and alcohol evaluation. No
Post-Sentence Motions were filed and no direct appeal was
taken.
[Durrett] . . . was charged at CC 201413501 with two (2)
counts of Endangering the Welfare of a Child and with Terroristic
Threats in relation to an altercation between [Durrett] and
another man, where [Durrett's] two (2) children were present
and one became trapped underneath a folded-up stroller and
one became trapped under the two men when they fell to the
ground during the altercation. [Durrett] appeared before this
Court on February 4, 2015 and pled guilty to all charges. He was
immediately sentenced to time served (132 days), with an
additional term of probation of three (3) years, with the special
conditions of no contact with the victims, a drug and alcohol
evaluation and a JRS plan. No Post-Sentence Motions were filed
and no direct appeal was taken.
[Durrett] was next charged at CC 201412775 with Retail Theft,
Receiving Stolen Property, False Identification to Law
Enforcement, Possession of Drug Paraphernalia, Disorderly
Conduct and Public Drunkenness in relation to an incident where
he stole a bottle of liquor from the Wine and Spirits store on
Weaver Avenue in Sewickley Borough and was later found
passed out on another person's porch. He appeared before this
Court on February 4, 2015.
A review hearing was held on May 14, 2015[,] at which time it
was established that [Durrett] had not obtained a drug and
alcohol evaluation, that he was terminated from his treatment
plan due to noncompliance and that he had contacted his
children in violation of the no-contact order. This Court issued a
detainer and scheduled a Stage 2 [Gagnonl] hearing. That
1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). A defendant is generally
entitled to two separate hearings prior to revoking probation.
Commonwealth v. Cappellini, 690 A.2d 122, 1227 n.4 (Pa. Super. 1996),
citing Gagnon, supra. The purpose of the first (Gagnon I) hearing is to
“ensure against detention on allegations of violation that have no foundation
of probable cause." Id., citing Commonwealth v. Perry, 385 A.2d 518,
(Footnote Continuec/ Next Page)
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hearing was held on September 3, 2015, and at its conclusion,
this Court found that [Durrett] had violated his probation. This
Court revoked [Durrett's] probation at each of the cases and
imposed consecutive terms of imprisonment as follows: at CC
201413501, two and one[-]half (2 1/2) to five (5) years; at CC
201407896, one (1) to two (2) years; and at CC 201512775,
one (1) to two (2) years, for an aggregate term of imprisonment
of four and one[-]half (4 1/2) to nine (9) years. A timely Motion
to Reconsider Sentence was filed and was denied on September
17, 2015.
Trial Court Opinion, 7/18/16, at 1-3 (footnotes omitted). Durrett filed a
timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.2 He raises the following issues
for our review:
(1) Whether the revocation sentence imposed by the trial
court is illegal because it failed to determine, at the time of
resentencing, whether Mr. Durrett is an eligible offender
under the Recidivism Risk Reduction Incentive [RRRI] Act,
in violation of 61 Pa.C.S. § 4505(a).
(2) Whether the trial court abused its discretion by revoking
Mr. Durrett's probations at CC 201407986, CC 201412775
and CC 201413501 and ordering an excessive and
unreasonable aggregate sentence of 41/2 - 9 years[']
incarceration, particularly when the trial court failed to
consider Mr. Durrett's rehabilitative needs and other
required sentencing factors pursuant to 42 Pa.C.S. §
(Footnote Continued)
520 (Pa. Super. 1978). The purpose of the second (Gagnon II) hearing is
to determine whether facts exist to justify revocation of parole or probation.
Id.
2 The court granted Durrett several motions for extension of time to file his
Rule 1925(b) statement due to the fact that he was waiting for transcripts
necessary for appeal. The statement, therefore, was deemed timely. See
Pa.R.A.P. 1925(b)(2) (court may enlarge time period to file Rule 1925(b)
statement for good cause, including delay in production of necessary
transcript).
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9721(b) and the sentencing code's mandates for total
confinement, pursuant to 42 Pa.C.S. § 9771(c) and 42
Pa.C.S. § 9725, were not sufficiently established.
Durrett first contends that the trial court impermissibly failed to
determine, at the time of his probation revocation sentencing, whether he
was an eligible offender under the RRRI Act. As a result, he contends his
sentence is illegal. We agree.
Pursuant to 61 Pa.C.S. § 4505(a), “at the time of sentencing, the court
shall make a determination whether the defendant is an eligible offender.”
61 Pa.C.S. § 4505(a) (emphasis added). See also 42 Pa.C.S. § 9756(b.1)
(Sentencing Code provision stating that in imposing sentence of total
confinement, at time of sentencing, “the court shall determine if the
defendant is eligible for a recidivism risk reduction incentive minimum
sentence[.]"). When a trial court fails to make a statutorily-required RRRI
eligibility determination at sentencing, the defendant's sentence is rendered
illegal. Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).3
Instantly, the trial court never made a determination regarding
Durrett's RRRI eligibility at his revocation sentencing hearing. Thus, as the
Commonwealth concedes, Durrett's sentences are illegal. Robinson,
supra. Accordingly, we must vacate the sentences and remand for
3 We note that the prosecution has the discretion to waive RRRI eligibility
requirements; however, here, the Commonwealth did not elect to do so.
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resentencing, at which time the court shall determine Durrett's eligibility for
RRRI in each case and, if he is deemed eligible, sentence him accordingly.
Judgments of sentence4 vacated. Case remanded for instructions.
Jurisdiction relinquished.5
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date:411212017
4 We must remand for resentencing at all three docket numbers, CC
201407986, CC 201412775 and CC 201413501, where the court ran the
sentences on each case consecutively. See Commonwealth v.
Goldhammer, 517 A.2d 1280 (Pa. 1986).
5 Because we are vacating and remanding for resentencing based on
Durrett's first issue, we need not reach the second issue regarding the
discretionary aspect of his sentences.