Com. v. Clelland, N.

J-S63004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE CLELLAND :
:
Appellant : No. 1148 WDA 2017
Appeal from the Judgment of Sentence July 20, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000358-2011
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 1, 2019
Nicole Clelland appeals from the judgment of sentence imposed on July
20, 2017, in the Allegheny County Court of Common Pleas, upon the
revocation of her probation, and made final by the denial of post-sentence
motions on August 1, 2017. Clelland originally pled guilty on July 13, 2011,
to seven counts of forgery.1 On July 13, 2011, the court sentenced Clelland
to a term of five years’ probation for the first count of forgery, directed she
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 Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S. § 4101(a)(1). Counts for identity theft, receiving stolen
property, and conspiracy to commit theft by unlawful taking were withdrawn.
Clelland entered into a negotiated plea agreement in four cases, including the
present one.
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comply with the Forensic Service Plan, and ordered her to pay $3,848.62 in
restitution to Evergreen Assisted Living. Following revocation,2 the court
sentenced Clelland to a term of one to two years’ incarceration, to run
consecutively to an unrelated case, and continued restitution in the same
amount. Clelland challenges the legality and discretionary aspects of her
sentence. Based on the following, we are compelled to vacate the sentence
and remand for resentencing.
The facts and procedural history are well known to the parties and we
need not recite them herein. See Trial Court Opinion, 7/27/2018, at 2-4. For
purposes of this appeal, we note the trial court made no determination as to
Clelland’s eligibility for a Recidivism Risk Reduction Incentive (“RRRI”)3
program. Clelland raises the following issue for our review:
Did the trial court err in denying [Clelland]’s post sentencing
motions since the trial court abused its discretion in sentencing
[Clelland] to a 1-2 years’ probation violation sentence of state
imprisonment, consecutive to the 9-18 year state prison sentence
that she was already serving at two unrelated cases, and she will
now be serving a total of 10-20 years’ state imprisonment; for
that reason, the consecutively imposed probation violation
sentence was manifestly excessive. Moreover, the trial court
didn’t consider if [RRRI] was applicable to the instant sentence.
Finally, the trial court erred in continuing to order the payment of
restitution since [Clelland] will have no ability to pay it for ten,
and possibly twenty years?
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2 Clelland failed to make any restitution payments, obtained new criminal
convictions, and was non-compliant with probation because she absconded.
3 See 61 Pa.C.S. 4501, et seq. (“RRRI Act”).
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Clelland’s Brief at 3. Based on our disposition, we will address Clelland’s RRRI
issue first.
Clelland asserts the sentence imposed is illegal because the trial court
failed to consider if she was RRRI eligible. See id. at 8, 18.
We are guided by the following: “[T]he scope of review in an appeal
following a sentence imposed after probation revocation is limited to the
validity of the revocation proceedings and the legality of the sentence imposed
following revocation.” Commonwealth v. Infante, 888 A.2d 783, 790 (Pa.
2005) (citation omitted). Upon the revocation of a defendant’s probation, a
trial court may impose any sentencing option that was available under the
Sentencing Code at the time of the original sentencing, regardless of any
negotiated plea agreement. 42 Pa.C.S. § 9771(b); Commonwealth v.
Wallace, 870 A.2d 838, 843 (Pa. 2005). Moreover, “[t]he trial court is limited
only by the maximum sentence that it could have imposed originally at the
time of the probationary sentence.” Commonwealth v. Fish, 752 A.2d 921,
923 (Pa. Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001).
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. To achieve these goals, RRRI
provides prisoners with “the opportunity ... to be considered for parole at the
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expiration of their RRRI minimum sentence.” Commonwealth v. Robinson,
7 A.3d 868, 872 (Pa. Super. 2010); see also 61 Pa.C.S. § 4505(c)(2) (stating
the RRRI minimum sentence “shall be equal to three-fourths of the minimum
sentence imposed when the minimum sentence is three years or less [and] ...
five-sixths of the minimum sentence if the minimum sentence is greater than
three years.”). “When a court imposes a sentence of imprisonment in a state
correctional facility, the court must also determine if the defendant is eligible
for an RRRI Act minimum sentence, see 61 Pa.C.S. § 4505(a).”
Commonwealth v. Hansley, 47 A.3d 1180, 1187 (Pa. 2012). Nevertheless,
“[t]he RRRI Act does not apply to all defendants, but only to certain ‘eligible
offenders,’ a term that does not include those with a history of violent crime,
convicted of certain sex offenses, or subject to a deadly weapon
enhancement.” Hansley, 47 A.3d at 1186, citing 61 Pa.C.S. § 4503.4
Here, the trial court concisely states:
The Court found in [Docket Nos.] 201416877 and 201500989 that
[Clelland] was not RRRI eligible because of her prior record, which
was noted to be 20 pages long. (N.T. 4 pp. 7; 17).4
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4 Notes of Transcript 4 refers to the Sentencing and
Probation Violations Hearings Transcript held on July 21 and
22, 2016.
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4 As the Commonwealth notes, this Court has not addressed the question of
whether probation violators are eligible for an RRRI sentence but both
Robinson and Hansley indicate that where a sentence of imprisonment has
been imposed, like in the present matter, the court must determine the
defendant’s RRRI eligibility. See Commonwealth’s Brief at 8. Our research
has uncovered no Pennsylvania decision to persuade us otherwise.
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Trial Court Opinion, 7/27/2018, at 7.
The Commonwealth agrees with Clelland and concedes that her
sentence is illegal because the trial court failed to consider if she was RRRI
eligible. See Commonwealth’s Brief at 9. As the Commonwealth adequately
states:
[The July 21 and 22, 2016, transcripts that the trial court
refers to in its opinion] are not part of the certified record and are
not relevant to what occurred at the July 20, 2017[,] Probation
Violation hearing for CP-02-CR-0000358-201[1]. Even though
the trial court believes [Clelland]’s entire record (all her criminal
cases and probation violations) adequately addresses her
ineligibility, it was statutorily mandated to make an on-the-record
determination regarding RRRI eligibility at sentencing for CP-02-
CR-0000358-2011. See 61 Pa.C.S.A. § 4505(a); Robinson.
Because the trial [court] did not make a determination as to
[Clelland]’s RRRI eligibility at the July 20, 2017[,] Probation
Violation Hearing, this Court has no choice but to vacate the
judgment of sentence and remand for the trial court to determine
[Clelland]’s RRRI eligibility.
Id. at 10 (citation and footnote omitted).
Based on the RRRI Act, case law, and the record before us, we are
constrained to agree with Clelland and the Commonwealth that Clelland’s
judgment of sentence is illegal because the trial court failed to make any on-
the-record determinations regarding her RRRI eligibility at the July 20, 2017,
probation revocation hearing and sentencing. Moreover, the court’s rationale
regarding those two other docket numbers and Clelland’s RRRI ineligibility, as
set forth in its opinion, does not overcome the statutory hurdle necessary in
the present matter as to why the court chose not to find her RRRI eligible.
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See 61 Pa.C.S. § 4505(a); Robinson, supra. Accordingly, we vacate
Clelland’s judgment of sentence and remand for resentencing.5
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2019
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5 Based on our disposition, we need not address Clelland’s remaining claims.
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