J-A33001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TROY VINCENT JACKSON

                            Appellant                   No. 1736 WDA 2015


          Appeal from the Judgment of Sentence September 15, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008775-2011


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED JANUARY 03, 2017

        Troy Vincent Jackson appeals nunc pro tunc from his probation

revocation sentence entered in the Court of Common Pleas of Allegheny

County. We vacate and remand for resentencing.

        The trial court aptly set forth the relevant facts of the case as follows:

        [Jackson] was charged with a Violation of the Uniform Firearms
        Act: Persons Not to Possess Firearms, Simple Assault and
        Recklessly Endangering Another Person. He appeared before
        this [c]ourt on March 6, 2013[,] and entered a general plea of
        guilty to all charges. On May 30, 2013, he again appeared
        before this court and was sentenced to intermediate punishment
        for a term of nine (9) months and a term of probation of three
        (3) years. No Post-Sentence Motions were filed and no direct
        appeal was taken.


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*
    Retired Senior Judge assigned to the Superior Court.
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       On September 15, 2015, [Jackson] appeared before this [c]ourt
       for a probation violation hearing, having been convicted of
       another offense.1       At that hearing, the [c]ourt revoked
       [Jackson’s] [probation] and imposed a term of imprisonment of
       four (4) to 10 years. Post-Sentence Motions were filed and
       denied on September 28, 2015. Following the reinstatement of
       his appellate rights, this direct appeal followed.

Trial Court Opinion, 4/12/16, at 2.

       On appeal, Jackson presents the following issues for our consideration:

       (1)    Whether Mr. Jackson’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
              Recidivism Risk Reduction Incentive [(RRRI)] Act, thereby
              violating 61 Pa.C.S.A § 4505(a), and also when the sum
              and substance of Mr. Jackson’s sentence exceeds the
              maximum allowable sentence.

       (2)    Whether the trial court abused its discretion by denying
              Mr. Jackson a legitimate, meaningful opportunity to
              exercise his right of allocution, and personally address his
              sentence for the specific purpose of effectuating
              sentencing?2

       Jackson first contends that the trial court impermissibly failed to

advise him of his RRRI eligibility and, as a result, his sentence is illegal. 3



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1
  Specifically, Jackson pled guilty to one count of possession of a controlled
substance, 35 P.S. § 780-113(a)(16), as well as a summary traffic offense.
2
    We have renumbered Jackson’s issues for ease of disposition.
3
  Jackson did not raise this issue in his Pa.R.A.P. 1925(b) statement of
matters complained of on appeal. However, challenges to the legality of
sentence are non-waivable. Commonwealth v. Tobin, 89 A.3d 663 (Pa.
Super. 2014).




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       Pursuant to 61 Pa.C.S. § 4505(a), “at the time of sentencing, the court

shall make a determination whether the defendant is an eligible offender.”

61 Pa.C.S. § 4505(a) (emphasis added). See also 42 Pa.C.S. § 9756(b.1)

(Sentencing Code provision stating that in imposing a sentence of total

confinement, at the time of sentencing, “the court shall determine if the

defendant is eligible for a recidivism risk reduction incentive minimum

sentence[.]”).      Moreover, with regard to sentences imposed after a

defendant violates his or her probation, it is well known that “[u]pon

revocation[,] the sentencing alternatives available to the court shall be the

same as were available at the time of initial sentencing[.]”        42 Pa.C.S. §

9771(b).     When a trial court fails to make a statutorily-required RRRI

eligibility determination at sentencing, the defendant’s sentence is rendered

illegal. Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).4

Thus, we must vacate Jackson’s sentence and remand for resentencing at

which time the court shall determine Jackson’s eligibility for RRRI and, if he

is deemed eligible, sentence him accordingly.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.5
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4
  We note that the prosecution has the discretion to waive RRRI eligibility
requirements; however, here, the Commonwealth has not elected to do so.
5
  Because we are vacating and remanding for resentencing based on
Jackson’s first issue, we need not reach his second issue regarding whether
the court violated his right of allocution. We remind the sentencing court,
(Footnote Continued Next Page)


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      Judge Solano joins this Memorandum.

      Judge Strassburger files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




                       _______________________
(Footnote Continued)

however, that while it did inform Jackson of his right of allocution, the court
effectively cut him off from finishing his statement to the court. See
Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003)
(because “significance of allocution lies in its potential to sway the court
toward leniency prior to imposition of sentence . . .the effect of allocution on
the sentencing process can never be known with such certainty that a
reviewing court can conclude that there was no prejudice in its absence.”).
Upon resentencing, the court shall be mindful of the right to allocution and
the necessity to allow the defendant to fully exercise that right. See
Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989) (citation
omitted) (nothing has “lessen[ed] . . . the need for the defendant,
personally, to have the opportunity to present to the court his plea in
mitigation. The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for
himself.”).




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