J-S74015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      V.

RICHARD NAYLOR

                           Appellant                      No. 8 EDA 2015


          Appeal from the Judgment of Sentence November 12, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004974-2010


BEFORE:      OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 24, 2016

        Appellant appeals from the judgment of sentence entered in the Court

of Common Pleas of Delaware County following the rew,cadon of his

probation.     Upon review, we are constrained to vacate the judgment of

sentence and remand for the trial court to determine properly Appellant's

eligibility under the Recidivism Risk Reduction Incentive Act ("RRRI Act"), 61

Pa.C.S.A. §§ 4501-4512.

        The relevant facts and procedural history are as follows: On August 5,

2011, Appellant entered     a   negotiated guilty plea to the charges of indecent

assault, endangering the welfare of         a   child, corruption of minors, and




*   Former Justice specially assigned to the Superior Court.
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hindering      apprehension.'            Following      the Sexual Offenders Assessment

Board's conclusion that Appellant was not                       a   sexually violent predator,

Appellant was sentenced on November 22, 2011, in accordance with his plea

agreement. Specifically, Appellant was sentenced to one year less                            a   day to

two years less       a   day in prison for indecent assault; five years probation for

endangering the welfare of           a       child, to run consecutively to his sentence for

indecent assault; five years probation for corruption of minors, to run

consecutively to his sentence for indecent assault and endangering the

welfare of     a   child; and one year less         a   day to two years less       a   day in prison

for hindering apprehension, to run concurrently with his sentence for

indecent assault. Thereafter, Appellant filed neither post- sentence motions

nor   a   direct appeal.

          In August 2014, Appellant was accused of violating his probation with

regard to the offenses listed supra, and on November 12, 2014, represented

by counsel, he proceeded to              a    Gagnon    112   hearing. Appellant stipulated to

a   technical violation of his probation, and the trial court revoked Appellant's

probation. The trial court then resentenced Appellant to eighteen months to

thirty -six months       in prison   for endangering the welfare of             a       child and five

years probation for corruption of minors, the sentences to run consecutively.

Appellant was additionally ordered to complete the sex offender program


'   18 Pa.C.S.A. §§ 3126, 4304, 6301, and 5105, respectively.
2   Gagnon   v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).




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and was given credit for time served.              No   further penalty was imposed for

the remaining convictions. Appellant did not file post- sentence motions;

however, he filed   a   timely   appeal.3

      Appellant presents the following issue:

      Whether the eighteen month to thirty -six month term of state
      confinement for endangering the welfare of children is illegal
      since the court failed to make a RRRI determination at the time
      of sentencing?

Appellant's Brief at 5.

      Appellant contends that, in Pennsylvania, the trial court                      is   statutorily

required to determine, at the time of sentencing, whether the defendant is

an eligible offender under the RRRI Act.                He asserts     that,   in   this case, the

trial court failed to make          a   proper determination regarding his RRRI

eligibility, and thus, since there            is   no   statutory authorization for his

particular sentence, his sentence       is   illegal. Without conceding that Appellant

is RRRI   eligible, the Commonwealth notes that it                is   proper to vacate the

instant sentence and remand for the trial court to make an on- the -record

determination    regarding       Appellant's       RRRI    eligibility.    For      the     reasons

discussed infra, we agree.




3  In response to the trial court's Pa.R.A.P. 1925(b) order, counsel filed a
statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).
Accordingly, the trial court filed a brief Pa.R.A.P. 1925(a) opinion indicating
it was not addressing the merits of any potential appellate issues.


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       Initially, we note that Appellant presents his claim for the first time on

appeal.     Generally, claims raised for the first time on appeal are waived;

however, this Court has held that            a    claim asserting the trial court failed to

make   a   statutorily required determination regarding           a   defendant's eligibility

for an RRRI minimum sentence, implicates the legality of                   a   sentence and is

non-waivable. See Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super.

2014) (indicating that       a   challenge to the trial court's failure to apply        a   RRRI

minimum     is a     non-waivable legality of sentencing claim). "The determination

as to whether the       trial court imposed an illegal sentence        is a    question of law;

our standard of review in cases dealing with questions of law is plenary."

Commonwealth v. Stradley,               50 A.3d 769, 772 (Pa.Super. 2012) (citation

omitted).

       Moreover, with regard to sentences imposed after                a   defendant violates

his probation, we have explained that "upon revocation of probation, the

sentencing alternatives available to the court shall be the same as were

available at the time of initial sentencing." 42 Pa.C.S.A.                 §   9771. "[W]here

probation   is   violated, the trial court   is   free to impose any sentence permitted

under the Sentencing Code." Commonwealth v. Partee, 86 A.3d 245, 249

(Pa.Super. 2014) (citations omitted).

       The RRRI Act provides that,           "[a]t the time of sentencing, the court
shall make       a   determination whether the defendant          is an    eligible offender."

61 Pa.C.S.A. § 4505.         If the trial court finds the defendant to           be an eligible



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offender, or if the prosecuting attorney waives the eligibility requirements

under Section 4505(b), the trial court must calculate minimum and

maximum sentences, and then impose the RRRI minimum sentence.                    See

id. As our Supreme Court has indicated, the RRRI Act requires trial courts,

upon consideration of the factors set forth in 61 Pa.C.S.A.       §   4503 (defining

"eligible offender"), to determine at the time of sentencing whether the

defendant is an "eligible offender."    Commonwealth v. Chester, 627             Pa.

429, 101 A.3d 56 (2014).

       The Sentencing Code was amended, effective November 24, 2008, to

include the following section requiring the trial court to determine RRRI

eligibility:

       (b.1) Reelivism risk reduction incentive mir'rnum
       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 to impose a sentence with no
       recidivism risk reduction incentive minimum.

42 Pa.C.S.A.   §   9756(b.1) (emphasis added).

       Moreover, in     Common-tee- ft'-! v. 17C-inson,       7   A.3d    868,   871

(Pa.Super. 2010), this Court 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" in accordance with the RRRI Act and



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Sentencing Code, "the sentence is illegal."       ""'":pb.   ;d:::Yri,    7   A.3d at 871. Thus,

"[w]hen   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[.]" Commonwea:th v. Hansley, 616 Pa. 367, 47

A.3d 1180, 1187 (2012) (citation omitted).

      In the case sub judice, the issue of whether Appellant was RRRI

eligible was not discussed at the revocation sentencing hearing and the trial

court made no determination or inquiry on the record.                             While the written

sentencing order contains          a   notation "Not RRRI eligible," there                      is   no

indication this determination was made by the trial court in consideration of

the required statutory factors.

      Accordingly, since the trial court was statutorily required to make                             a


determination of Appellant's RRRI eligibility pursuant to 61 Pa.C.S.A.                      §   4503

(defining "eligible offender") when it sentenced Appellant to eighteen months

to thirty-six months in prison for violating his probation, and the record fails

to reveal the trial court did so, we have no choice but to vacate the

judgment of sentence and remand for the trial court to determine properly

Appellant's RRRI eligibility. See Robinson,       7   A.3d at 870-71.

      Judgment of sentence vacated.               Case       Remanded.                  Jurisdiction

relinquished.




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Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 10/24/2016




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