J-S54037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHARISSA CARSON                            :
                                               :
                      Appellant                :   No. 332 WDA 2017

            Appeal from the Judgment of Sentence January 27, 2017
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003236-2014


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED OCTOBER 06, 2017

        Appellant, Charissa Carson, appeals from her judgment of sentence of

seventeen to thirty-seven months’ imprisonment following revocation of her

parole and probation for retail theft.1 Appellant argues that the trial court

failed to determine whether she was eligible for sentencing under the

Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512.

We conclude that further proceedings are necessary to determine whether

Appellant is eligible for an RRRI sentence.




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a).
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        On April 28, 2015, Appellant pleaded guilty to one count of retail

theft,2 graded as a first degree misdemeanor, for stealing clothes valued at

$629.99 from Macy’s Department Store. N.T. Guilty Plea Hr’g, 4/28/15, at

8-9.    The court imposed a sentence of two to six months’ imprisonment

followed by twelve months’ probation.            Id. at 11.   The court granted

Appellant parole on April 30, 2015.

        On November 23, 2015, Appellant appeared before the court for a

revocation hearing.       The Commonwealth alleged, and Appellant admitted,

that (1) she violated her probation agreement by testing positive for

marijuana on May 8, 2015; and (2) she was unsuccessfully discharged on

August 19, 2015 from Stairways Drug and Alcohol Program due to lack of

attendance. N.T., 11/23/15, at 5-6. The Commonwealth also alleged that

Appellant failed to report to her probation officer on August 11, 2015 and

September 29, 2015. Id. at 5, 9. Following testimony from the probation

officer, the court concluded Appellant violated this term. Id. at 8-9. Based

upon these violations, the court revoked Appellant’s parole and recommitted

her with credit for 117 days of time served. Id. at 14. The court reimposed

the same probation period and told Appellant that he would agree to parole

her to inpatient treatment if she qualified.        Id. at 15.   The court also



____________________________________________


2
    18 Pa.C.S. § 3929(a)(1).



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directed Appellant to undergo any testing or treatment that was deemed

appropriate. Id. The court granted Appellant parole on January 25, 2016.

      On July 8, 2016, Appellant appeared for a second parole/probation

revocation proceeding and admitted violating two conditions of her probation

agreement.      N.T., 7/27/16, at 5-6.   She violated Condition 5 by failing to

notify her probation officer of an arrest for disorderly conduct on April 8,

2016. She pleaded guilty to this offense on June 3, 2016. She also violated

Condition 12 by attempting to evade arrest and concealing herself in the

stairwell when probation officers came to arrest her for her probation

violation. N.T., 7/8/16, at 12. When the officers found her, she swung at a

probation officer and was verbally belligerent. Id. at 13.

      At sentencing on July 27, 2016, the court revoked Appellant’s parole

and probation, recommitted her to the two to six month sentence of

incarceration, and sentenced her to an additional five to eleven months’

incarceration    (for   an   aggregate   of   seven   to   seventeen   months’

imprisonment), followed by two years’ probation. Id. at 12. The court gave

her 289 days of credit for time served and stated that it would parole her

after she received an updated drug and alcohol assessment. Id. Appellant’s

attorney added that Appellant “definitely has a mental health or bipolar issue

that she needs to deal with.”     N.T., 7/27/16, at 9-10.    The court paroled

Appellant on August 15, 2016.




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      On January 27, 2017, Appellant appeared for a third revocation

hearing, which gives rise to this appeal. She admitted violating Condition 5

of her probation agreement for failing to notify her probation officer of her

new arrest for the summary offense of disorderly conduct and her guilty plea

to this offense on January 10, 2017. N.T., 1/27/17, at 7. She also admitted

violating Condition 12 by missing three appointments with her probation

officer. Id. at 8. Appellant admitted relapsing on drugs after her release

from jail. Id. at 13, 14. Appellant testified that she needed help and asked

for the opportunity to obtain inpatient treatment for her mental health and

addiction.   Id. at 15.   She stated that she failed to contact her probation

officer after her release because she thought he would incarcerate her due

to her homelessness. Id. at 16.

      Finding that Appellant did not demonstrate a desire to comply with the

terms of her supervision, the court revoked her parole, recommitted her to

the sentence of seven to seventeen months’ imprisonment, and imposed a

consecutive term of ten to twenty months’ imprisonment, which aggregated

to a state sentence of seventeen to thirty-seven months.      Id. at 19. The

court gave her credit for 384 days’ time served and authorized her to receive

any drug/alcohol or mental health treatment available to her in the state

system. Id. at 19-20.

      At the conclusion of the sentencing, the court stated that it was “not

sure if [Appellant is] triple RI eligible.” Id. at 19. It continued: “All I see


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are retail thefts. So if that’s the case, she would be triple RI eligible, but I

don’t know what her other history is.” Id. The court and the parties did not

further address Appellant’s eligibility.   Later that day, however, the court

entered a written sentencing order declaring, without explanation, that

Appellant was ineligible for RRRI.

      On February 3, 2017, Appellant filed a motion for reconsideration of

sentence asking the court to consider her long periods of sobriety, her

genuine desire to obtain help, and her concurrent diagnosis of bi-polar

disorder.    The court denied this motion.    Appellant filed a timely notice of

appeal, but counsel for Appellant filed a statement of intention to file a “no

merit” brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Counsel subsequently withdrew her appearance, and new counsel entered

her appearance for Appellant.

      In this Court, new counsel filed a brief stating that she did not concur

with former counsel’s assessment that no non-frivolous issues exist.       New

counsel asserted that Appellant’s sentence was illegal due to the trial court’s

failure to evaluate on the record whether Appellant was eligible for an RRRI

sentence.     New counsel defined this issue as follows in her Statement of

Questions Presented:

            Did the revocation court impose an illegal sentence when it
            failed to make the statutorily required determination of
            Appellant’s eligibility for a RRRI sentence at the time of
            sentencing?




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Appellant’s Brief at 6. New counsel’s decision to brief this issue removes any

need to address whether Anders applies to this case.        Further, we agree

with new counsel that Appellant should receive an additional sentencing

hearing to determine whether she is eligible for an RRRI sentence.

      The RRRI Act “seeks to create a program that ensures appropriate

punishment for persons who commit crimes, encourages inmate participation

in evidence-based programs that reduce the risks of future crime and

ensures the openness and accountability of the criminal justice process while

ensuring fairness to crime victims.” 61 Pa.C.S. § 4502. As part of achieving

that aim, the RRRI Act requires the trial court to determine at the time of

sentencing whether the defendant is an “eligible offender.”      61 Pa.C.S. §

4505(a). If the court finds the defendant to be an eligible offender, or if the

prosecuting attorney waives the eligibility requirements under section

4505(b), the court must calculate minimum and maximum sentences, and

then impose the RRRI minimum sentence, which “shall be equal to three-

fourths of the minimum sentence imposed when the minimum sentence is

three years or less,” or “shall be equal to five-sixths of the minimum

sentence if the minimum sentence is greater than three years.” 61 Pa.C.S.

§ 4505(c)(2).   If an eligible offender “successfully completes the program

plan, maintains a good conduct record and continues to remain an eligible

offender,” he or she may “be paroled on the RRRI minimum sentence date

unless the Board determines that parole would present an unreasonable risk


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to public safety or that other specified conditions have not been satisfied.”

37 Pa. Code § 96.1(b).

        To become eligible for a RRRI minimum sentence, the defendant must

establish that she:

           (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 [18
           Pa.C.S. § 11.103],3 except for an offense under 18 Pa.C.S.
____________________________________________


3
    18 Pa.C.S. § 11.103 defines “personal injury crime” as

        [a]n act, attempt or threat to commit an act which would constitute a
        misdemeanor or felony under the following:

        18 Pa.C.S. Ch. 25 (relating to criminal homicide).
        18 Pa.C.S. Ch. 27 (relating to assault).
        18 Pa.C.S. Ch. 29 (relating to kidnapping).
        18 Pa.C.S. Ch. 31 (relating to sexual offenses).
        18 Pa.C.S. § 3301 (relating to arson and related offenses).
        18 Pa.C.S. Ch. 37 (relating to robbery).
        18 Pa.C.S. Ch. 49 Subch. B (relating to victim and witness
        intimidation).
(Footnote Continued Next Page)


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          § 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.

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

                       _______________________
(Footnote Continued)

      30 Pa.C.S. § 5502.1 (relating to homicide by watercraft while
      operating under influence).
      The former 75 Pa.C.S. § 3731 (relating to driving under influence of
      alcohol or controlled substance) in cases involving bodily injury.
      75 Pa.C.S. § 3732 (relating to homicide by vehicle).
      75 Pa.C.S. § 3735 (relating to homicide by vehicle while driving under
      influence).
      75 Pa.C.S. § 3735.1 (relating to aggravated assault by vehicle while
      driving under the influence).
      75 Pa.C.S. § 3742 (relating to accidents involving death or personal
      injury).
      75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing
      drugs) in cases involving bodily injury.
      The term includes violations of any protective order issued as a result
      of an act related to domestic violence.

Id.



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J-S54037-17


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

61 Pa.C.S. § 4503.

       “[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).4                       Issues relating to the

legality of sentence are non-waivable, and this Court can raise such issues

sua sponte.       See Commonwealth v. Orellana, 86 A.3d 877, 882 n.7

(Pa.Super.2014) (citation omitted).



____________________________________________


4
  We note that another panel of this Court has questioned Robinson’s
conclusion that this issue implicates the legality of the defendant’s sentence.
See Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014).
Nevertheless, Robinson remains binding precedent that we must apply to
this case.




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      Here, the trial court made one momentary reference to the RRRI

issue—“all I see are retail thefts. So if that’s the case, she would be triple RI

eligible, but I don’t know what her other history is”—but failed to address

whether Appellant satisfied the six requisites for RRRI eligibility within

section 4503.   To correct this omission, we will remand for an additional

hearing in which the court addresses all six requisites on the record.

      We offer several further thoughts about the remand proceedings in

this case.   A decision on five of the six RRRI requisites, subsections (2)

through (6) of section 4503, does not appear difficult.      Appellant has “not

been subject to a sentence the calculation of which includes an enhancement

for the use of a deadly weapon.”      61 Pa.C.S. § 4503, definition of eligible

offender, subsection (2).     With regard to subsection (3), Appellant was

convicted of one personal injury crime—simple assault graded as a third

degree misdemeanor, see n. 2, supra—but the RRRI Act specifically

provides that a simple assault conviction does not render defendants

ineligible for an RRRI sentence. See 61 Pa.C.S. § 4503(3). It appears that

Appellant has not been convicted or adjudicated delinquent of any offenses

listed in subsection (4). See id., subsection (4). She is not awaiting trial or

sentencing on charges for which conviction would cause her to become

ineligible under this definition. See id., subsection (5). Although she was

convicted in 1995 of possession with intent to deliver .58 grams of cocaine,

this amount is not enough to render her ineligible for RRRI treatment under


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subsection (6).      Defendants only become ineligible for RRRI treatment if

they sell more than 100 grams of cocaine. See id., subsection (6) (citing 18

Pa.C.S. § 7508(a)(3)(iii)).5

       Subsection (1) of section 4503 will present a more complex task on

remand. The court should examine whether the combination of Appellant’s

simple assault conviction,6 her disorderly conduct conviction(s),7 and other

acts, if any,8 “demonstrate a history of present or past violent behavior.”

____________________________________________


5
  We note that the RRRI Act applies to mandatory minimum sentences
imposed under 18 Pa.C.S. § 7508. See Commonwealth v. Hansley, 47
A.3d 1180, 1188 (Pa. 2012).
6
   Standing alone, Appellant’s simple assault conviction is insufficient to
demonstrate “a history of present or past violent behavior.”               See
Commonwealth v. Cullen-Doyle, --- A.3d ---, 2017 WL 3097766, *4 (Pa.,
July 20, 2017) (single conviction for violent crime does not constitute history
of present or past violent behavior). However, Appellant’s simple assault
conviction, combined with other instances of violent behavior, might
establish a “history of present or past violent behavior.”                 See
Commonwealth v. Chester, 101 A.3d 56, 65 (Pa. 2014) (multiple prior
first degree burglary convictions constitute history of violent behavior under
RRRI Act).
7
  At least one subsection of the disorderly conduct statute, 18 Pa.C.S. §
5503, is a crime of violent behavior, but others are not. Subsection
5503(a)(1) is a crime of violent behavior. See id. (“a person is guilty of
disorderly conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he . . . engages in fighting
or threatening, or in violent or tumultuous behavior”) (emphasis
added).    Arguably, subsection 5503(a)(4)—“creat[ing] a hazardous or
physically offensive condition by any act which serves no legitimate purpose
of the actor”—is a crime of violence as well.          Id. (emphasis added).
Conversely, subsections 5503(a)(2)—“making unreasonable noise”—and
subsections 5503(a)(3)—“us[ing] obscene language . . . or mak[ing] an
obscene gesture”—are not crimes of violence. Appellant has two disorderly
(Footnote Continued Next Page)


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       If the court concludes that Appellant meets all criteria for eligibility

under the RRRI Act, the court shall impose an RRRI sentence in accordance

with section 4505(c).

       Lastly, it is important to mention that remand for a hearing on the

RRRI issue will not disturb the other aspects of the court's sentencing

scheme.       Accordingly, we affirm Appellant’s sentence to the extent that it

does    not     implicate    her    rights    under   the   RRRI   Act.   Compare

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986);

Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial

court errs in its sentence on one count in multi-count case, all sentences for

all counts will be vacated so court can restructure its entire sentencing

scheme).

       Judgment of sentence affirmed in part and vacated in part. Judgment

of sentence is affirmed to the extent that it does not involve Appellant’s

eligibility for an RRRI sentence. Judgment of sentence vacated to the extent

                       _______________________
(Footnote Continued)

conduct convictions, but the record does not establish which subsection(s) of
section 5503 she violated. In accordance with the preceding paragraph, the
trial court should determine which subsection(s) she violated and whether
these convictions involve violent behavior.
8
  Conceivably, the term “behavior” in subsection (1) not only encompasses
convictions for violent crimes but uncharged acts of violence. We are not
aware of any published decisions on this subject. Assuming uncharged acts
are admissible under subsection (1), we are not aware whether Appellant
committed any such acts. We leave it for the trial court to address these
issues on remand.



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that it denies RRRI relief.    Case remanded for further proceedings in

accordance with this memorandum concerning Appellant’s eligibility for an

RRRI sentence. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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