J-S70021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                    Appellee                   :
                                               :
              v.                               :
                                               :
MELVIN L. FOX,                                 :
                                               :
                    Appellant                  :    No. 1811 EDA 2015

              Appeal from the Judgment of Sentence May 18, 2015,
                   Court of Common Pleas, Delaware County,
                Criminal Division at No. CP-23-CR-0007725-2014

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED NOVEMBER 24, 2015

      Appellant, Melvin L. Fox (“Fox”), appeals from the judgment of

sentence following his conviction of two counts of delivery of a controlled

substance, 35 P.S. § 780-113(a)(30), and two counts of possession of a

controlled substance, 35 P.S. § 780-113(a)(16). On appeal, Fox raises two

issues related to his sentence. For the reasons that follow, we vacate the

judgment of sentence and remand to the trial court for further proceedings

consistent with this decision.

      After    a   non-jury    trial   on   March   31,   2015,   during   which   the

Commonwealth established that Fox delivered cocaine to an informant on

two occasions, the trial court convicted him of the above-referenced crimes.

N.T., 3/31/2015, at 52.          On the first count of delivery of a controlled

substance, the trial court sentenced Fox to a term of incarceration of two




*Retired Senior Judge assigned to the Superior Court.
J-S70021-15


and one half to five years. N.T., 5/19/2015, at 8. On the second count for

delivery of a controlled substance, the trial court sentenced Fox to three

years of probation, to run consecutively to the term of incarceration.1 Id.

      At the sentencing hearing, the Commonwealth contended that a school

zone enhancement, 204 Pa. Code § 303.9(c), applied, and that the

applicable sentencing guidelines provided for a prior record score of three

and an offense gravity score of six. N.T., 5/18/2015, at 3-4. The trial court

agreed with the Commonwealth’s recommendations and sentenced Fox in

accordance therewith.      N.T., 5/19/2015, at 8; Trial Court Opinion,

7/28/2015, at 1. The Commonwealth also advised the trial court that Fox

had no eligibility for boot camp, and the trial court accordingly refused to

impose a sentence of boot camp or other Recidivism Risk Reduction

Incentive Act (“RRRI”) sentence. N.T., 5/18/2015, at 4, 8. While arguing

for a more lenient sentence than that recommended by the Commonwealth,

Fox’s counsel did not object to the application of the school zone

enhancement,    the   sentencing   guideline   numbers    proposed    by   the

Commonwealth, or his client’s apparent ineligibility for RRRI.    Id. at 6-7.

Fox’s counsel did not file a post-sentence motion.

      On appeal, Fox raises the following two issues related to his

sentencing:



1
    For sentencing purposes, the possession convictions merged with the
delivery convictions, resulting in no additional sentences for these offenses.


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      1.    Whether the lower court erred when it imposed a
            two and one half to five year term of incarceration
            for delivery of less than two grams of cocaine since it
            did so in reliance upon inaccurate sentencing
            guidelines that referred to a school zone
            enhancement and an offense gravity score of six,
            neither of which applied to the facts of the case?

      2.    Whether the sentence imposed is illegal since the
            court failed to affix a RRRI minimum to that
            sentence?

Fox’s Brief at 5.

      For his first issue on appeal, Fox argues that the school zone

enhancement had no applicability in this case, since although one of the

deliveries occurred near a playground, the Commonwealth did not establish

that the playground was situated on school grounds. Fox’s Brief at 10. Fox

further contends that because he was convicted of delivery of less than two

grams of cocaine, the correct offense gravity score should have been five

rather than six. Id. As such, Fox insists that the recommended minimum

sentence under the sentencing guidelines should have been between six and

sixteen months (plus or minus three months). Id.

      In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court ruled that Fox waived his first

issue on appeal because it was not raised either at the sentencing hearing or

in a post-sentence motion. Trial Court Opinion, 7/28/2015, at 1. We must

agree. “Issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court



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during the sentencing proceedings.     Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. Tirado,

870 A.2d 362, 365 (Pa. Super. 2005); Commonwealth v. Roman, 2015

WL 6830179, at *1 (Pa. Super. Nov. 5, 2015); Commonwealth v.

Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006).

       Comparing    the   misapplication   of   sentencing   guidelines   to   the

imposition of mandatory minimum sentences, Fox argues that we should

treat his first issue on appeal as one implicating the legality of his sentence

(and thus non-waivable). Fox’s Brief at 18-19. Based upon prior decisions

by this Court, however, we have no authority to do so. In Commonwealth

v. Archer, 722 A.2d 203 (Pa. Super. Ct. 1998), we held that “any

misapplication of the Sentencing Guidelines constitutes a challenge to the

discretionary aspects of sentence.” Id. at 211. In so ruling, we clarified

that while the “improper utilization of the Sentencing Guidelines” is an error

of law and thus presents a legal question,” it “does not render the sentence

illegal.”   Id.   Similarly, in Commonwealth v. Ali, 112 A.3d 1210 (Pa.

Super. 2015), we held that the “utilization of sentencing enhancements

concerns the trial court’s application of the sentencing guidelines and,

therefore, implicates the discretionary aspects of [] sentence.” Id. at 1226.

       Alternatively, Fox contends that while his counsel failed to preserve

the issue in a post-sentence motion, he himself preserved it when he filed a

pro se “Petition for Reconsideration of Sentence,” in which he raised the



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same issues now pursued on appeal (the application of sentencing guidelines

and RRRI eligibility).   Unfortunately, however, Fox was represented by

counsel at the time he filed his pro se motion for reconsideration, and

therefore it was a legal nullity.   See, e.g., Commonwealth v. Nischan,

928 A.2d 349, 355 (Pa. Super. 2007) (pro se post-sentence motion filed

while represented was a nullity, having no legal effect).           This Court

addressed this issue again in a recent case, Commonwealth v. Reid, 117

A.3d 777 (Pa. Super. 2015).      In Reid, we ruled that a pro se motion for

reconsideration, filed at a time when the appellant was represented by

counsel, was a nullity. Id. at 781 n.8. Because Fox’s post-sentence motion

for reconsideration was a legal nullity, it did not preserve his first issue for

appeal. This issue must therefore await collateral review.

      For his second issue on appeal, Fox argues that the trial court failed to

determine whether he was eligible for a RRRI sentence. Fox’s Brief at 19.

Pursuant to 42 Pa.C.S.A. § 9756(b.1), a sentencing court must determine

whether a criminal defendant “is eligible for a recidivism risk reduction

incentive minimum sentence,” and if he/she is eligible, such a sentence

“shall” be imposed. 42 Pa.C.S.A. § 9756(b.1); 61 Pa.C.S.A. § 4505 (“At the

time of sentencing, the court shall make a determination whether the

defendant is an eligible offender.”). Fox contends that he is RRRI eligible, as

his current offenses did not involve violence or weapons and his prior

(juvenile) offenses were also for non-violent crimes.        Fox’s Brief at 20.



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According to Fox, the trial court in this case ruled that he was ineligible for

RRRI without first establishing a record on which to assess his eligibility. Id.

      We agree. At the sentencing hearing, the trial court, apparently based

upon the Commonwealth’s recommendation, merely declared that Fox was

ineligible for RRRI, without any consideration of the statutory factors

required to make this determination. N.T., 5/18/2015, at 8 (“There will be

no RRRI or boot camp involved.”).          This was error.     42 Pa.C.S.A. §

9756(b.1); 61 Pa.C.S.A. § 4505.

      While Fox’s counsel did not object (either at the sentencing hearing or

thereafter),2 RRRI eligibility is a non-waivable question of law implicating the

legality of sentence.     See, e.g., Commonwealth v. Tobin, 89 A.3d 663,

669 (Pa. Super. 2014); Commonwealth v. Robinson, 7 A.3d 868, 871

(Pa. Super. 2010) (“[W]here 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.”). We thus remand

this case for re-sentencing, at which time the trial court must place on the

record its reasons for granting or denying Fox a RRRI sentence.

      We   note    that    the   Commonwealth     concurs    with   this   result.

Commonwealth’s Brief at 19 (“He is correct.”).


2
   Fox’s counsel likewise failed to include this issue in the Rule 1925(b)
statement of issues complained of on appeal. We do not find waiver on this
ground, however, as we may raise issues of illegality of sentence sua
sponte. Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super.
2014).


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      Judgment of sentence vacated. Case remanded to the trial court for

further proceedings consistent with this decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2015




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