J-S16004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN LEWIS RUSH

                            Appellant                 No. 1808 WDA 2015


             Appeal from the Judgment of Sentence October 20, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0003932-2012


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 25, 2017

       John Lewis Rush appeals from the October 20, 2015 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

a probation violation hearing. Because the trial court did not make an on-

the-record determination of whether Rush was eligible for a recidivism risk

reduction incentive (“RRRI”) minimum sentence, we vacate and remand for

resentencing.

       On January 28, 2013, Rush pled guilty to statutory sexual assault,

corruption of minors, and indecent exposure.1 The trial court sentenced him
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       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. §§ 3122.1, 6301(a)(1)(ii), and 3127(a), respectively.

     That same day, in a separate matter at CP-02-CR-0003942-2012,
Rush pled guilty to simple assault, 18 Pa.C.S. § 2701(a)(1). The trial court
(Footnote Continued Next Page)
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to an aggregate term of one year less one day to two years less two days’

incarceration and a concurrent period of three years’ probation, with 321

days of credit for time served. Rush also was ordered to register under the

Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-

9799.41, for 15 years.

      Rush was later charged with and convicted of other offenses under

docket number CP-02-CR-002090-2014.               On October 20, 2015, the trial

court held a probation violation hearing, and determined that Rush had

violated his probation based on the new convictions and on technical

violations of probation. As a result, the trial court revoked Rush’s probation

and sentenced him to one to three years’ incarceration, consecutive to the

sentence imposed at CP-02-CR-002090-2014.

      On October 30, 2015, Rush filed a motion to modify sentence.          The

trial court did not rule on Rush’s motion.         On November 18, 2015, Rush

timely filed a notice of appeal.2

      Rush raises the following issues on appeal:

          I. Whether the trial court abused its sentencing discretion
          by ordering Mr. Rush’s revocation sentence of 1-3 years
          incarceration to be served consecutively to his sentence of
          14 years, 10 months-36 years, six months incarceration at
                       _______________________
(Footnote Continued)

sentenced Rush to 2 years’ probation, consecutive to the sentences imposed
in the instant case.
      2
          Pursuant to Pennsylvania Rule of Criminal Procedure 708(E): “The
filing of a motion to modify sentence will not toll the 30-day appeal period.”



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         CC 201402090, particularly when the trial court failed to
         consider Mr. Rush’s rehabilitative needs and other required
         sentencing factors pursuant to 42 Pa.C.S.A. § 9721(b),
         and it also considered impermissible factors in imposing
         sentence?

         II. Whether Mr. Rush’s revocation sentence is illegal when
         the trial court failed to determine, at the time of
         sentencing, whether he is an eligible offender under the
         [RRRI] Act, thereby violating 61 Pa.C.S.A. § 4505(a)?

Rush’s Br. at 8 (footnotes and suggested answers omitted).

      We first address Rush’s claim that his sentence is illegal because the

trial court failed to determine whether Rush was RRRI eligible, as it is

dispositive of this appeal.

      “The RRRI [statute] permits offenders who exhibit good behavior and

who complete rehabilitative programs in prison to be eligible for reduced

sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

The Sentencing Code provides:

         (b.1) Recidivism risk reduction incentive minimum
         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. § 9756(b.1).       See 61 Pa.C.S. §§ 4505(a) (“At the time of

sentencing, the court shall make a determination whether the defendant is




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an eligible offender.”).        The Prisons and Parole Code defines “eligible

offender” as follows:

           “Eligible offender.” 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:

                                           ...

           (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, except for an offense under
           18 Pa.C.S. § 2701 (relating to simple assault) when
           the offense is a misdemeanor of the third degree, 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. . .
           .
61 Pa.C.S. § 4503 (footnote omitted). “[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.”

Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa.Super. 2010).3

Because “[i]ssues relating to the legality of a sentence are questions of

law[,] . . . our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013).
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       3
        Although Rush did not raise this claim prior to appeal, because his
claim raises a challenge to the legality of his sentence, it is non-waivable.
See Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013).




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       Our review of the record reveals, as the Commonwealth concedes, see

Cmwlth’s Br. at 11, that the trial court failed to make a determination as to

Rush’s RRRI eligibility. Thus, we are constrained to vacate his judgment of

sentence and remand for resentencing.            We are mindful that Rush admits

that his criminal record would make him ineligible for an RRRI minimum

sentence, see Rush’s Br. at 43; however, the law compels us to reach this

result. See, e.g., Robinson, 7 A.3d at 871.4 We also note that even where

a court believes that the record adequately addresses a defendant’s

eligibility for an RRRI minimum sentence, an on-the-record determination of

eligibility must occur, especially in light of the Commonwealth’s ability to

waive the eligibility requirements. See 61 Pa.C.S. § 4505(b).

       In light of this disposition, we do not reach Rush’s remaining issues on

appeal, all of which involve claims that the trial court abused its discretion in

sentencing.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.5

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       4
       At the time of sentencing, a trial court is statutorily required to make
a determination regarding a defendant’s eligibility for an RRRI minimum
sentence, and neither the Sentencing Code nor the RRRI statute exclude
probation violators from consideration for such a sentence.
       5
        While sympathetic to the judicial economy concerns raised in the
concurring and dissenting statement, we believe that as long as Robinson is
law in this Court, we do not have discretion to disregard its dictates. But
see Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa.Super. 2014)
(Footnote Continued Next Page)


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      Judge Ransom joins the memorandum.

      Judge Platt files a Concurring/Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




                       _______________________
(Footnote Continued)

(questioning conclusion, pursuant to Robinson, that failure to make
determination regarding RRRI eligibility implicates legality of sentence).



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