Com. v. Weir, C.

J-A20043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER WEIR :
:
Appellant : No. 939 WDA 2020
Appeal from the Judgment of Sentence Entered May 8, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015214-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 7, 2021
Christopher Weir (Appellant) appeals from the judgment of sentence
imposed in the Allegheny Court of Common Pleas, following his guilty plea to
one count each of persons not to possess a firearm, simple assault, resisting
arrest, possession of a controlled substance, possession with intent to deliver
(PWID), and possession of drug paraphernalia.1 On appeal, he challenges the
legality of his sentence, arguing the trial court failed to address his eligibility
under the Recidivism Risk Reduction Incentive (RRRI) Act.2 For the reasons
below, we vacate Appellant’s sentence and remand to the trial court for
resentencing.
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1 18 Pa.C.S. §§ 6105(a)(1), 2701(a)(1), 5104; 35 P.S. §§ 780-113(a)(16),
(a)(30), (a)(32).
2 61 Pa.C.S. §§ 4501-4512.
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We glean the following facts from the affidavit of probable cause.3 On
August 16, 2017, Clairton Police officers, accompanied by agents of the
Attorney General’s office, executed a search warrant for Appellant’s address
in Clairton, Pennsylvania. Affidavit of Probable Cause, 8/16/17, at 2. Upon
arrival, two officers identified themselves as police to Appellant and “he began
to fight” them. Id. The officers took Appellant into custody and subsequently
executed their search. Id. Officers recovered the following from their search:
(1) a firearm; (2) $225.00 in United States currency; (3) an electronic scale;
(4) multiple “diaper bags;”4 (5) 14 individually packaged bags of cocaine
amounting to 6.9 grams; (6) and proof of Appellant’s residence. Id. Due to
prior convictions, Appellant is a person not permitted to possess a firearm.
See id.
Appellant was charged with aggravated assault,5 persons not to possess
firearms, resisting arrest, PWID, possession of a controlled substance, and
possession of drug paraphernalia. At the guilty plea hearing on February 19,
2019, the trial court permitted the Commonwealth to amend the aggravated
assault charge to simple assault. N.T., 2/19/19, at 5-8. Appellant then
entered a guilty plea to all charges. Id. at 13. On May 8, 2019, the trial court
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3At the guilty plea hearing, the parties relied upon the facts as outlined in the
probable cause affidavit. See N.T., 2/19/19, at 12-13.
4A “diaper bag” is a term used for cocaine packaging. Affidavit of Probable
Cause at 2.
5 18 Pa.C.S. § 2702(a)(3).
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sentenced Appellant to 3 to 6 years’ incarceration for persons not to possess
a firearm and a consecutive term of 6 to 12 months’ incarceration for PWID.
The trial court ordered no further penalty on Appellant’s remaining charges.
On May 20, 2019, Appellant filed a timely6 post-sentence motion to
modify his sentence. On September 9, 2020, Appellant’s motion was denied
by operation of law.7 This timely appeal follows. Appellant complied with the
trial court’s order to file a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises one issue on appeal:
1. Whether [Appellant’s] sentence is illegal where the trial court
failed to determine, on the record at the time of sentencing,
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6 Appellant had 10 days from sentencing, or until May 18, 2019, to file post-
sentence motions. Because May 18th, fell on a Saturday, Appellant had until
the following Monday, May 20th to file a timely post-sentence motion. See 1
Pa.C.S. § 1908.
7 The trial court denied Appellant’s motion on May 21, 2019, but, that order
was not entered on the docket until September 24, 2019, more than 120 days
after Appellant filed his motion. See Pa.R.Crim.P. 720(B)(3)(a) (trial court
shall decide post-sentence motion within 120 days of filing of the motion; if it
fails to do so, motion shall be deemed denied by operation of law). As noted
above, it was not until almost a year later that the clerk of courts entered an
order denying Appellant’s post-sentence motion by operation of law. See
Order, 9/9/20. Thus, Appellant’s 30-day appeal period began to run on that
day. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000)
(stating when the docket fails to reflect that the clerk furnished a copy of an
order to the parties, we “assume [that] the period for taking an appeal was
never triggered.”); see also Frazier v. City of Philadelphia, 735 A.2d 113,
115 (Pa. 1999) (although parties received a copy of the order, “the appeal
period was not triggered” due to the clerks failure to make a “formal entry”
on the docket). We note the Commonwealth agrees Appellant’s appeal was
timely filed.
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whether [Appellant] is an eligible offender under the [RRRI]
Act, thereby violating 61 Pa.C.S.[ ] § 4505(a)?
Appellant’s Brief at 5 (footnote omitted).
Appellant argues, for the first time on appeal, that his sentence is illegal
because the trial court failed to determine his RRRI eligibility. Appellant’s Brief
at 17. Appellant contends “the RRRI Act requires that [his] eligibility for
participation in the program be made on the record at the sentencing
hearing[.]” Id. at 21. Appellant avers that since the trial court failed to “make
a statutorily required determination[, his] sentence is illegal.” Id. at 22, citing
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010). The
Commonwealth agrees, and asserts that Appellant’s case should be remanded
for resentencing.8 Commonwealth’s Brief at 6.
As noted above, Appellant raises this claim for the first time on appeal.
Although issues not raised in the trial court are generally waived for our
review, 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. The legality of a sentence is an issue that cannot be waived.
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001) (illegal
sentencing claim cannot be waived and may be reviewed sua sponte). Thus,
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8Because Appellant raises this issue for the first time on appeal, the trial court
did not address the claim in its opinion.
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we conclude that Appellant’s issue is not waived despite his failure to raise
this claim in the trial court.
The RRRI Act “seeks to create a program that ensures appropriate
punishment for persons who commit crimes, encourages inmate participation
in evidence-based programs that reduce the risks of future crime and ensures
the openness and accountability of the criminal justice process while ensuring
fairness to crime victims.” 61 Pa.C.S. § 4502. Furthermore, the Act explicitly
states: “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). In the event the trial court finds the defendant is an
eligible offender, or if the Commonwealth waives the eligibility requirements,
the trial court must then calculate the minimum and maximum sentences, and
impose the RRRI minimum sentence. 61 Pa.C.S. § 4505(c). See 61 Pa.C.S.
§ 4505(c)(2) (when minimum sentence is three years or less, RRRI minimum
is three-fourths of minimum sentence imposed by trial court; when minimum
sentence is more than three years, RRRI sentence is five-sixths of minimum
sentence). Our Sentencing Code also requires the trial court to determine a
defendant’s RRRI eligibility at sentencing:
(b.1) Recidivism risk reduction incentive minimum
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
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to impose a sentence with no recidivism risk reduction incentive
minimum.
42 Pa.C.S. § 9756(b.1).
Here, the trial court failed to determine Appellant’s RRRI eligibility at his
sentencing hearing. Pursuant to Robinson, “where the trial court fails to
make a statutorily required determination regarding a defendant’s eligibility
for an RRRI minimum sentence as required” in Section § 9756(b.1.), “the
sentence is illegal.” Robinson, 7 A.3d at 871. Although the trial court may
ultimately determine Appellant is not an “eligible offender,” it is required to
make that determination at the time it imposes sentence. See 61 Pa.C.S. §
4505(a).9
Thus, we conclude that the trial court was statutorily required to
determine Appellant’s RRRI eligibility at sentencing, and its failure to do so
renders Appellant’s sentence illegal. See Robinson, 7 A.3d at 870-71. We
therefore vacate the judgment of sentence and remand for the trial court to
determine Appellant’s RRRI eligibility.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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9 We note that Section 4505(b) authorizes the Commonwealth to waive the
RRRI eligibility requirements under certain circumstances. 61 Pa.C.S. §
4505(b). The Commonwealth does not indicate in its brief whether Appellant
is an “eligible offender,” or whether it would be willing to waive the eligibility
requirements.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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