Com. v. Hill, N.

J-S09005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NELSON GLEN HILL :
:
Appellant : No. 1881 WDA 2017
Appeal from the Judgment of Sentence November 16, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013829-2014,
CP-02-CR-0014717-2015
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 16, 2019
Nelson Glen Hill challenges the judgment of sentence entered in the
Allegheny County Court of Common Pleas, following revocation proceedings.
Appellant contests the discretionary aspects of his sentence, and the
revocation court’s failure to determine his eligibility for the Recidivism Risk
Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. §§ 4501-4512. After
careful review, we vacate Appellant’s judgment of sentence and remand with
instructions.
Briefly, the relevant facts and procedural history of this case are as
follows. After splashing lighter fluid throughout his mother’s apartment,
Appellant attempted to light the carpet on fire with matches. He was
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
Retired Senior Judge assigned to the Superior Court.
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unsuccessful in his efforts, and was arrested thereafter. Pursuant to a plea
agreement at docket number CP-02-CR-0013829-2014, Appellant pled guilty
to risking catastrophe.1 The Commonwealth withdrew all other remaining
charges. The court sentenced him to time served, plus a probationary term of
three years. Appellant did not file a post-sentence motion or a direct appeal.
While on probation, Appellant was charged with new crimes stemming
from an incident where he punched his then-girlfriend, threatened her with a
knife, and stole her vehicle. He pled guilty at docket number CP-02-CR-
0014717-2015 to simple assault.2 The court immediately sentenced him to
11½-23 months’ incarceration, plus three years’ probation. He did not file any
post-sentence motions or a direct appeal from this conviction either.
Approximately 16 months later, Appellant was convicted of escaping
from his supervised residence. He proceeded to a revocation hearing at both
dockets. At the hearing, the Commonwealth referred to the new escape
conviction alternately as a probation violation and a parole violation at docket
CP-02-CR-0014717-2015. See N.T. Hearing, 11/16/17, at 2-3.
Ultimately, the court stated it was revoking Appellant’s probation at both
dockets. The court resentenced Appellant at docket CP-02-CR-0013829-2014
to 2½-7 years’ incarceration. At docket CP-02-CR-0014717-2015, the court
resentenced Appellant to one to two years’ incarceration, consecutive with the
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1 18 Pa.C.S.A. § 3302(b).
2 18 Pa.C.S.A. § 2701(a)(1).
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revocation sentence imposed at the other docket. Appellant filed a motion for
reconsideration, which the court denied. Appellant then filed a timely notice
of appeal. This case is now properly before us.
Appellant argues the sentencing court’s failure to consider whether he
is RRRI-eligible renders his sentence illegal. Though Appellant acknowledges
he failed to raise this argument before the sentencing court, he submits that
issues pertaining to the legality of sentence cannot be waived. See Appellant’s
Brief, at 8. The Commonwealth concedes the sentencing court failed to impose
a RRRI sentence.
A challenge to the trial court’s failure to determine eligibility for RRRI
sentencing implicates the legality of a sentence. See Commonwealth v.
Robinson, 7 A.3d 868, 870-871 (Pa. Super. 2010). “When reviewing the
legality of a sentence, our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super.
2017) (citation omitted).
At sentencing, “[t]he court shall determine if the defendant is eligible
for a recidivism risk reduction incentive minimum sentence[.]” 42 Pa.C.S.A. §
9756(b.1). An eligible offender is one who “[d]oes not demonstrate a history
of present or past violent behavior” and “[h]as not been found guilty of or
previously convicted of or adjudicated delinquent for or an attempt or
conspiracy to commit a personal injury crime,” including simple assault graded
higher than a third-degree misdemeanor. 61 Pa.C.S.A. § 4503.
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While this would appear to preclude Appellant from eligibility, given his
conviction for simple assault graded as a second-degree misdemeanor, the
Commonwealth concedes the sentencing court erred in failing to consider
RRRI eligibility. See Appellee’s Brief, at 20. Further, the Commonwealth
correctly notes that it has the power to waive the eligibility requirements under
certain circumstances. See Appellant’s Brief, at 16 (citing 61 Pa.C.S.A. §
4505(b)). As a result, 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.”
Robinson, 7 A.3d at 871. Thus, we remand for the resentencing court to
ascertain Appellant’s RRRI eligibility.
While on remand, we also instruct the court to resolve a discrepancy
noted in the record and certified transcripts concerning whether Appellant was
on parole or probation at the time of revocation and resentencing at docket
number CP-02-CR-0014717-2015. As noted, the Commonwealth referred to
Appellant as “on parole and probation” at docket CP-02-CR-0014717-2015.
See N.T. Hearing, 11/16/17, at 3. However, the revocation court’s authority
to punish Appellant for his violations depends on whether he was a parolee or
probationer at the time of revocation.
“[T]here is no authority for a parole-revocation court to impose a new
penalty. Rather, the only option for a court that decides to revoke parole is to
recommit the defendant to serve the already-imposed, original sentence.”
Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008) (citation
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omitted). Conversely, “[u]pon revoking probation, the sentencing alternatives
available to the court shall be the same as were available at the time of initial
sentencing[.]” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014)
(internal quotations and citation omitted).
And we note this Court has previously held that a parolee’s sentence will
not continue to run during any period where he absconds. See
Commonwealth v. Stafford, 29 A.3d 800, 804 (Pa. Super. 2011) (“[A]
person who is an escapee is not entitled to credit for time served as he is
obviously not serving his sentence”).
According to the record, Appellant committed the acts responsible for
his charges at that docket on November 6, 2015. He was caught and
incarcerated on November 12, 2015. He then pled guilty to simple assault on
March 28, 2016. That same day, the court imposed a sentence of 11½ -23
months’ incarceration, with immediate release to Justice Related Support
Services (“JRSS”), a diversionary program related to mental health needs. The
court also awarded Appellant time credit of 138 days. By this Court’s
calculation, Appellant’s parole should have ended on October 13, 2017 – 23
months after his sentencing date of March 28, 2016, less 138 days of credit
time.
That, however, does not include the five months which elapsed while
Appellant was a fugitive from justice. According to the certified record,
Appellant escaped from the JRSS program on August 1, 2016, and was not
apprehended until November 30, 2016. He absconded again on January 5,
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2017, before police detained him on February 17, 2017. On June 22, 2017,
Appellant was convicted of escape. He was again moved to JRSS on
September 26, 2017, before his violation hearing and resentencing on
November 16, 2017.
Thus, based on the information in the certified record, it would appear
Appellant was a fugitive for over five months. That time cannot be counted
toward successful completion of his parole, per our holding in Stafford.
Consequently, we order the court on remand to reevaluate Appellant’s parolee
or probationer status at the time of revocation, and to resentence him
accordingly.
Owing to our disposition, we decline to reach Appellant’s second issue,
involving the discretionary aspects of his revocation sentence. Accordingly, we
vacate the judgment of sentence and remand for further proceedings as
instructed.
Judgment of sentence vacated. Remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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