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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
CLARENCE RICHBURG,                        :          No. 2041 EDA 2015
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, February 19, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0011746-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 11, 2016

        Clarence Richburg appeals from the February 19, 2015 aggregate

judgment of sentence of two to five years’ imprisonment imposed after he

pled no contest to possession of a controlled substance and possession with

intent to deliver a controlled substance (“PWID”).1 After careful review, we

vacate the judgment of sentence and remand for resentencing.

        The trial court summarized the relevant facts of this case as follows:

                    During the no-contest plea hearing, the parties
              stipulated to the facts adduced during the
              [suppression] plea hearing, which established that
              on August 14, 2013, Philadelphia Police Officer
              Jeffery Opalski, a five-year veteran of the police
              department, and his partner, Officer Mundrick, were
              working undercover in the vicinity of 54th Street and

* Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
J. S52009/16


            Haverford Avenue, a high crime and drug area, when
            Officer Opalsk[i] observed [a]ppellant approach a
            black female. Appellant engaged the female in a
            conversation and then took small objects out of his
            pocket, which he placed into the palm of the
            woman’s open hand.       The woman then handed
            [a]ppellant some money and left the area.

                  Based on his experience, Officer Opalski
            concluded that he had just witnessed a drug
            transaction.    He exited his vehicle and ordered
            [a]ppellant to “Stop.” Appellant looked at the officer
            and then fled into an apartment building located at
            519 N. 54th Street and into one of the apartments.
            He exited the apartment seconds later clutching an
            object in his pocket at which point Officer Opalski
            apprehended [a]ppellant. For his safety, the officer
            patted the object in [a]ppellant’s pocket and
            immediately recognized that the object was a
            sandwich bag filled with pills.      Officer Opalski
            removed the object from [a]ppellant’s pocket and
            recovered a total of sixty-two Oxycodone pills.
            Appellant was immediately arrested and charged
            with the offenses herein.

Trial court opinion, 1/15/16 at 2 (citations to notes of testimony omitted).

      On November 12, 2013, appellant filed an omnibus pre-trial motion to

suppress the evidence obtained from the search of his person. Following a

hearing,   the   trial   court   denied    appellant’s   suppression   motion   on

December 10, 2014. As noted, appellant pled no contest to possession of a

controlled substance and PWID and was sentenced to two to five years’

imprisonment on February 19, 2015.              That same day, appellant filed a

post-sentence motion for reconsideration of sentence and supplemental




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motion. On June 19, 2015, appellant’s motions were denied by operation of

law, pursuant to Pa.R.Crim.P. 720(B)(3). This timely appeal followed.2

        On appeal, appellant raises the following issue for our review:

              Did not the sentencing court err by failing to make a
              determination as to appellant’s RRRI[3] eligibility and
              failing to impose the RRRI minimum sentence in
              violation of 61 Pa.C.S.A. § 4505 given that appellant
              was eligible for such a sentence because he had no
              history of violence?

Appellant’s brief at 3.

        Appellant’s claim that the trial court failed to determine whether he is

eligible for an RRRI minimum sentence implicates the legality of his

sentence.     See Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super.

2014) (stating, “a defendant’s challenge relative to the failure to apply a

RRRI minimum [is] a non-waivable illegal sentencing claim.” (citation

omitted)).    “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).

        In order to be entitled to an RRRI minimum sentence, appellant must

satisfy the statutory definition of “eligible offender,” as set forth in

61 Pa.C.S.A. § 4503. Section 4503 provides, in pertinent part, as follows:


2
    Appellant and the trial court have complied with Pa.R.A.P. 1925.
3
 Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S.A. §§ 4501-
4512.


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          A defendant or inmate convicted of a criminal
          offense who will be committed to the custody of the
          department and who meets all of the following
          eligibility requirements:

          (1)   Does not demonstrate a history           of
                present or past violent behavior.

          (2)   Has not been subject to a sentence the
                calculation   of    which    includes    an
                enhancement for the use of a deadly
                weapon as defined under law or the
                sentencing guidelines promulgated by
                the     Pennsylvania     Commission      on
                Sentencing or the attorney for the
                Commonwealth has not demonstrated
                that the defendant has been found guilty
                of or was convicted of an offense
                involving a deadly weapon or offense
                under 18 Pa.C.S. Ch. 61 (relating to
                firearms and other dangerous articles) or
                the equivalent offense under the laws of
                the United States or one of its territories
                or possessions, another state, the
                District of Columbia, the Commonwealth
                of Puerto Rico or a foreign nation.

          (3)   Has not been found guilty of or
                previously convicted of or adjudicated
                delinquent for or an attempt or
                conspiracy to commit a personal injury
                crime as defined under section 103 of
                the act of November 24, 1998 (P.L. 882,
                No. 111), known as the Crime Victims
                Act, or an equivalent offense under the
                laws of the United States or one of its
                territories or possessions, another state,
                the     District   of    Columbia,     the
                Commonwealth of Puerto Rico or a
                foreign nation.

          (4)   Has not been found guilty or previously
                convicted or adjudicated delinquent for
                violating any of the following provisions


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                or an equivalent offense under the laws
                of the United States or one of its
                territories or possessions, another state,
                the     District   of    Columbia,     the
                Commonwealth of Puerto Rico or a
                foreign nation:

                     18 Pa.C.S. § 4302(a) (relating
                     to incest).

                     18 Pa.C.S. § 5901 (relating to
                     open lewdness).

                     18 Pa.C.S. Ch. 76 Subch. C
                     (relating to  Internet child
                     pornography).

                     Received a criminal sentence
                     pursuant to 42 Pa.C.S. § 9712.1
                     (relating   to   sentences   for
                     certain drug offenses committed
                     with firearms).

                     Any      offense    for     which
                     registration is required under
                     42 Pa.C.S. Ch. 97 Subch. H
                     (relating to     registration of
                     sexual offenders).

          (5)   Is not awaiting trial or sentencing for
                additional   criminal   charges,     if  a
                conviction or sentence on the additional
                charges would cause the defendant to
                become ineligible under this definition.

          (6)   Has not been found guilty or previously
                convicted of violating section 13(a)(14),
                (30) or (37) of the act of April 14, 1972
                (P.L. 233, No. 64), known as The
                Controlled Substance, Drug, Device and
                Cosmetic Act, where the sentence was
                imposed    pursuant       to   18      Pa.C.S.
                § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii),



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                   (7)(iii) or (8)(iii) (relating to drug
                   trafficking sentencing and penalties).

61 Pa.C.S.A. § 4503 (footnotes omitted). If a defendant satisfies the criteria

for an “eligible offender,” the trial court is required to impose an RRRI

minimum sentence. Id. § 4505(c)(2).

       Instantly, the trial court concedes that it failed to consider and apply

the RRRI Act when it sentenced appellant, and therefore, his sentence is

illegal. (Trial court opinion, 1/15/16 at 3-5.) The Commonwealth, in turn,

indicates that a remand of this matter is necessary to determine if appellant

is eligible for an RRRI minimum sentence. (Commonwealth’s brief at 5-7.)

We agree.

       In Commonwealth v. Thompkins, 2015 WL 7354549 (Pa.Super.

2015), a panel of this court recently held that Commonwealth v.

Robinson, 7 A.3d 868 (Pa.Super. 2010), is controlling over such matters.

Thompkins, 2015 WL 7354549 at *1. In Robinson, this court examined

the language of the RRRI Act and concluded 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 971.       Accordingly, we vacate appellant’s

February 19, 2015 judgment of sentence and remand this matter for

resentencing.

       Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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