J-S68007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SABRINA YOUNG,

                            Appellant                No. 1282 WDA 2015


             Appeal from the Judgment of Sentence July 21, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011683-2007


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 18, 2016

       Appellant, Sabrina Young, appeals from the judgment of sentence

entered following the revocation of her probation.     Because the trial court

failed, at the time of sentencing, to make an on-the-record determination of

Appellant’s eligibility for a Recidivism Risk Reduction Incentive (“RRRI”)

sentence pursuant to the RRRI statute, 61 Pa.C.S. §§ 4501-4512, we vacate

the judgment of sentence and remand for further proceedings.

       The trial court summarized the protracted procedural history of this

case as follows:

               [Appellant] was charged with one (1) count of Retail Theft
       in relation to an incident at Macy’s Department Store. She
       initially appeared before this Court on August 23, 2007 and was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S68007-16


       sentenced to a term of probation of three (3) years. No Post-
       Sentence Motions were filed and no direct appeal was taken.

             [Appellant] next appeared before this Court on July 13,
       2010 for a probation violation hearing. At that hearing, this
       Court revoked [Appellant’s] probation and imposed a new term
       of probation of one (1) year. Again, no Post-Sentence Motions
       were filed and no direct appeal was taken.

             [Appellant] again appeared before this Court on November
       15, 2011 for a probation violation hearing. At that hearing, this
       Court revoked [Appellant’s] probation and imposed a new term
       of probation of two (2) years. Again, no Post-Sentence Motions
       were filed and no direct appeal was taken.

             Once again, [Appellant] appeared before this Court on
       March 12, 2013 for a probation violation hearing. At that
       hearing, this Court revoked [Appellant’s] probation and imposed
       a new term of probation of two (2) years. Again, no Post-
       Sentence Motions were filed and no direct appeal was taken.

             [Appellant] next appeared before this Court on January 14,
       2014 for a probation violation hearing. At that hearing, this
       Court once again revoked [Appellant’s] probation and imposed a
       new term of probation of two (2) years.[1] Again, no Post-
       Sentence Motions were filed and no direct appeal was taken.

             [Appellant] again appeared before this Court on July 21,
       2015 for a probation violation hearing. At the conclusion of that
       hearing, this Court revoked [Appellant’s] probation and imposed
       a term of imprisonment of three (3) to seven (7) years. Timely
       Post-Sentence Motions were filed and were denied on August 27,
       2015. This appeal followed.

Trial Court Opinion, 5/19/16, at 1-2 (footnote omitted). Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.
____________________________________________


1
  We note that the sentencing order issued by the trial court on January 14,
2014, also imposed a term of incarceration of time served, which equaled
112 days of incarceration starting on September 25, 2013, and ending
January 14, 2014. Order, 1/14/14, at 1.



                                           -2-
J-S68007-16


      Appellant presents the following issue for our review:

      Whether the trial court imposed an illegal revocation sentence
      when it failed to determine, at the time of sentencing, whether
      [Appellant] is an eligible offender under the Recidivism Risk
      Reduction Incentive Act, thereby violating 61 Pa.C.S.A. §
      4505(a)?

Appellant’s Brief at 4.

      Appellant argues the trial court imposed an illegal sentence when, at

the time of sentencing, it failed to make an on-the-record determination of

whether Appellant is an eligible offender under the RRRI statute. Appellant’s

Brief at 14-19. Appellant contends that her sentence must be vacated and

the matter remanded for a new sentencing hearing.              Id. at 18.   The

Commonwealth has conceded that the case should be remanded to the trial

court for a new sentencing hearing. Commonwealth’s Brief at 5-8.

      We begin by observing that this Court clarified in Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc), that our scope of

review following the revocation of probation is not limited solely to

determining the validity of the probation revocation proceedings and the

authority of the     sentencing court to consider the       same sentencing

alternatives that it had at the time of the initial sentencing. Rather, it also

includes challenges to the discretionary aspects of the sentence imposed.

Specifically, we unequivocally held that “this Court’s scope of review in an

appeal from a revocation sentencing includes discretionary sentencing

challenges.”   Cartrette, 83 A.3d at 1034.     A challenge to the legality of


                                     -3-
J-S68007-16


sentence is an attack upon the power of a court to impose (or, in this case,

not to impose) a given sentence.       Commonwealth v. Lipinski, 841 A.2d

537, 539 (Pa. Super. 2004). Furthermore, with regard to determinations of

RRRI eligibility, this Court has stated 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.”

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

        In fact, the Sentencing Code was amended, effective November 24,

2008,     to   include   the   following   section    requiring   RRRI     eligibility

determinations:

        (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) (emphases added). Thus, our legislature has made

clear that it is the trial court’s responsibility to determine whether a

defendant is RRRI eligible.      See 61 Pa.C.S. § 4505 (a) (“At the time of

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

an eligible offender.”) (emphases added).




                                       -4-
J-S68007-16


      Our review of the certified record reflects that, at Appellant’s

sentencing on July 21, 2015, the trial court failed to make a determination

regarding whether Appellant was RRRI eligible.             N.T., 7/21/15, at 2-10.

Indeed, the record is devoid of any determination by the trial court at the

time of sentencing as to the eligibility of Appellant for an RRRI minimum

sentence.

      In her Pa.R.A.P. 1925(a) opinion, the Honorable Donna Jo McDaniel

concluded that Appellant’s issue lacked merit and stated that “[the trial

court] was correct in not imposing an RRRI sentence” because “[a] review of

[Appellant’s]   prior   criminal   history   indicates”    convictions   of   “violent

offenses.”    Trial Court Opinion, 5/19/16, at 3.         This is not an acceptable

justification for failing to make a determination on the record at the time of

sentencing.

      As previously stated, the requirement that a sentencing court

determine whether a defendant is RRRI eligible pursuant to the RRRI statute

has been incorporated into the Sentencing Code. 42 Pa.C.S. § 9756(b.1).

The Sentencing Code further requires that “[a] record of the sentencing

proceeding shall be made and preserved in such a manner that it can be

transcribed as needed,” 42 Pa.C.S. § 9759(a), and that the court “disclose in

open court during sentencing, a statement of the reasons for the sentence.”

42 Pa.C.S. § 9721(b). Therefore, it is clear that an offender’s eligibility must




                                       -5-
J-S68007-16


be determined by the sentencing court on the record at the sentencing

hearing.

      Accordingly, because the trial court failed to make a statutorily

required determination regarding Appellant’s eligibility for an RRRI minimum

sentence at the time of sentencing as required, the sentence imposed is

illegal. Robinson, 7 A.3d at 871. Hence, we are constrained to vacate the

judgment of sentence and remand this matter for resentencing.

      In addition, we observe that in footnote six of her brief, Appellant also

alleges that her instant sentence imposing a term of incarceration of three to

seven years is illegal because it imposed the maximum sentence of seven

years, and Appellant had previously served a term of incarceration of 112

days. Appellant’s Brief at 18-19, n.6. Appellant contends that, because the

instant sentence did not grant her credit for the 112 days of time previously

served for this conviction of retail theft, the sentence is illegal. We agree.

      As we have stated, a “challenge to the trial court’s failure to award

credit for time served prior to sentencing involves the legality of sentence. A

claim challenging the legality of a sentence is appealable as of right.”

Commonwealth v. Little, 612 A.2d 1053, 1053 n.1 (Pa. Super. 1992).

      With regard to awarding credit for time served, the Sentencing Code

provides, in relevant part, as follows:

      § 9760. Credit for time served




                                      -6-
J-S68007-16


            After reviewing the information submitted under section
      9737 (relating to report of outstanding charges and sentences)
      the court shall give credit as follows:

            (1) Credit against the maximum term and any
            minimum term shall be given to the defendant for all
            time spent in custody as a result of the criminal
            charge for which a prison sentence is imposed or as
            a result of the conduct on which such a charge is
            based. Credit shall include credit for time spent in
            custody prior to trial, during trial, pending sentence,
            and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1).

      Our review of the trial court’s sentencing order on appeal reflects that

the trial court granted Appellant credit for time served totaling 430 days,

starting on May 18, 2014, and ending on July 21, 2015. Order, 7/21/15, at

1. However, as previously noted, for this particular conviction Appellant also

served a term of incarceration of 112 days starting on September 25, 2013,

and ending January 14, 2014. The trial court’s sentencing order dated July

21, 2015 does not include credit for this period. Accordingly, upon remand

we caution the trial court to calculate accurately the correct credit for time

that Appellant has served for this conviction.

      Judgment    of    sentence   vacated.      Case   remanded      for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.




                                      -7-
J-S68007-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




                          -8-
