J-S09005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NELSON GLEN HILL                           :
                                               :
                       Appellant               :   No. 1881 WDA 2017

          Appeal from the Judgment of Sentence November 16, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0013829-2014,
                                        CP-02-CR-0014717-2015


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 16, 2019

       Nelson Glen Hill challenges the judgment of sentence entered in the

Allegheny County Court of Common Pleas, following revocation proceedings.

Appellant contests the discretionary aspects of his sentence, and the

revocation court’s failure to determine his eligibility for the Recidivism Risk

Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. §§ 4501-4512. After

careful review, we vacate Appellant’s judgment of sentence and remand with

instructions.

       Briefly, the relevant facts and procedural history of this case are as

follows. After splashing lighter fluid throughout his mother’s apartment,

Appellant attempted to light the carpet on fire with matches. He was


____________________________________________



     Retired Senior Judge assigned to the Superior Court.
J-S09005-19



unsuccessful in his efforts, and was arrested thereafter. Pursuant to a plea

agreement at docket number CP-02-CR-0013829-2014, Appellant pled guilty

to risking catastrophe.1 The Commonwealth withdrew all other remaining

charges. The court sentenced him to time served, plus a probationary term of

three years. Appellant did not file a post-sentence motion or a direct appeal.

        While on probation, Appellant was charged with new crimes stemming

from an incident where he punched his then-girlfriend, threatened her with a

knife, and stole her vehicle. He pled guilty at docket number CP-02-CR-

0014717-2015 to simple assault.2 The court immediately sentenced him to

11½-23 months’ incarceration, plus three years’ probation. He did not file any

post-sentence motions or a direct appeal from this conviction either.

        Approximately 16 months later, Appellant was convicted of escaping

from his supervised residence. He proceeded to a revocation hearing at both

dockets. At the hearing, the Commonwealth referred to the new escape

conviction alternately as a probation violation and a parole violation at docket

CP-02-CR-0014717-2015. See N.T. Hearing, 11/16/17, at 2-3.

        Ultimately, the court stated it was revoking Appellant’s probation at both

dockets. The court resentenced Appellant at docket CP-02-CR-0013829-2014

to 2½-7 years’ incarceration. At docket CP-02-CR-0014717-2015, the court

resentenced Appellant to one to two years’ incarceration, consecutive with the

____________________________________________


1   18 Pa.C.S.A. § 3302(b).

2   18 Pa.C.S.A. § 2701(a)(1).

                                           -2-
J-S09005-19



revocation sentence imposed at the other docket. Appellant filed a motion for

reconsideration, which the court denied. Appellant then filed a timely notice

of appeal. This case is now properly before us.

      Appellant argues the sentencing court’s failure to consider whether he

is RRRI-eligible renders his sentence illegal. Though Appellant acknowledges

he failed to raise this argument before the sentencing court, he submits that

issues pertaining to the legality of sentence cannot be waived. See Appellant’s

Brief, at 8. The Commonwealth concedes the sentencing court failed to impose

a RRRI sentence.

      A challenge to the trial court’s failure to determine eligibility for RRRI

sentencing implicates the legality of a sentence. See Commonwealth v.

Robinson, 7 A.3d 868, 870-871 (Pa. Super. 2010). “When reviewing the

legality of a sentence, our standard of review is de novo and our scope of

review is plenary.” Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super.

2017) (citation omitted).

      At sentencing, “[t]he court shall determine if the defendant is eligible

for a recidivism risk reduction incentive minimum sentence[.]” 42 Pa.C.S.A. §

9756(b.1). An eligible offender is one who “[d]oes not demonstrate a history

of present or past violent behavior” and “[h]as not been found guilty of or

previously convicted of or adjudicated delinquent for or an attempt or

conspiracy to commit a personal injury crime,” including simple assault graded

higher than a third-degree misdemeanor. 61 Pa.C.S.A. § 4503.




                                     -3-
J-S09005-19



      While this would appear to preclude Appellant from eligibility, given his

conviction for simple assault graded as a second-degree misdemeanor, the

Commonwealth concedes the sentencing court erred in failing to consider

RRRI eligibility. See Appellee’s Brief, at 20. Further, the Commonwealth

correctly notes that it has the power to waive the eligibility requirements under

certain circumstances. See Appellant’s Brief, at 16 (citing 61 Pa.C.S.A. §

4505(b)). As a result, 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. Thus, we remand for the resentencing court to

ascertain Appellant’s RRRI eligibility.

      While on remand, we also instruct the court to resolve a discrepancy

noted in the record and certified transcripts concerning whether Appellant was

on parole or probation at the time of revocation and resentencing at docket

number CP-02-CR-0014717-2015. As noted, the Commonwealth referred to

Appellant as “on parole and probation” at docket CP-02-CR-0014717-2015.

See N.T. Hearing, 11/16/17, at 3. However, the revocation court’s authority

to punish Appellant for his violations depends on whether he was a parolee or

probationer at the time of revocation.

      “[T]here is no authority for a parole-revocation court to impose a new

penalty. Rather, the only option for a court that decides to revoke parole is to

recommit the defendant to serve the already-imposed, original sentence.”

Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008) (citation

                                      -4-
J-S09005-19



omitted). Conversely, “[u]pon revoking probation, the sentencing alternatives

available to the court shall be the same as were available at the time of initial

sentencing[.]” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014)

(internal quotations and citation omitted).

        And we note this Court has previously held that a parolee’s sentence will

not     continue   to   run   during   any   period   where   he   absconds.   See

Commonwealth v. Stafford, 29 A.3d 800, 804 (Pa. Super. 2011) (“[A]

person who is an escapee is not entitled to credit for time served as he is

obviously not serving his sentence”).

        According to the record, Appellant committed the acts responsible for

his charges at that docket on November 6, 2015. He was caught and

incarcerated on November 12, 2015. He then pled guilty to simple assault on

March 28, 2016. That same day, the court imposed a sentence of 11½ -23

months’ incarceration, with immediate release to Justice Related Support

Services (“JRSS”), a diversionary program related to mental health needs. The

court also awarded Appellant time credit of 138 days. By this Court’s

calculation, Appellant’s parole should have ended on October 13, 2017 – 23

months after his sentencing date of March 28, 2016, less 138 days of credit

time.

        That, however, does not include the five months which elapsed while

Appellant was a fugitive from justice. According to the certified record,

Appellant escaped from the JRSS program on August 1, 2016, and was not

apprehended until November 30, 2016. He absconded again on January 5,

                                        -5-
J-S09005-19



2017, before police detained him on February 17, 2017. On June 22, 2017,

Appellant was convicted of escape. He was again moved to JRSS on

September 26, 2017, before his violation hearing and resentencing on

November 16, 2017.

      Thus, based on the information in the certified record, it would appear

Appellant was a fugitive for over five months. That time cannot be counted

toward successful completion of his parole, per our holding in Stafford.

Consequently, we order the court on remand to reevaluate Appellant’s parolee

or probationer status at the time of revocation, and to resentence him

accordingly.

      Owing to our disposition, we decline to reach Appellant’s second issue,

involving the discretionary aspects of his revocation sentence. Accordingly, we

vacate the judgment of sentence and remand for further proceedings as

instructed.

      Judgment of sentence vacated. Remanded for further proceedings.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19

                                     -6-
