J-A14029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD E. HOOVER JR.

                            Appellant                No. 1954 MDA 2015


            Appeal from the Judgment of Sentence October 9, 2015
               In the Court of Common Pleas of Montour County
             Criminal Division at No(s): CP-47-CR-0000001-2015


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 04, 2016

        Ronald E. Hoover, Jr., appeals from the judgment of sentence imposed

on October 9, 2015, in the Court of Common Pleas of Montour County,

following his open guilty plea to charges of driving under the influence of

alcohol (DUI) and driving without a license.1 On October 5, 2015, in open

court, the trial court announced a sentence of 12 to 30 months’ incarceration

based on the trial judge’s belief that Hoover was ineligible for RRRI. 2 This

sentence was never reduced to a written order. That night, the trial judge

received information that Hoover was eligible for RRRI. On October 9, 2015,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 75 Pa.C.S. §§ 3802(a)(1) and 1501(a), respectively. Hoover pled guilty on
September 1, 2015.
2
    Recidivism Risk Reduction Incentive. See 61 Pa.C.S. § 4501 et seq.
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the trial court held another sentencing hearing and imposed a sentence of

15 to 30 months’ incarceration, with Hoover eligible for an RRRI minimum

sentence of 11 months and seven days.               Hoover filed a motion for

reconsideration, which was denied. In this timely appeal, Hoover argues his

sentence is illegal and that his RRRI eligibility must be calculated based upon

the initially announced 12-month minimum sentence.            After a thorough

review of the submissions by the parties, certified record and relevant law,

we affirm.

       A brief history of Hoover’s sentencing on the instant matter is

required.    As noted above, Hoover entered into an open plea to DUI as a

first-degree misdemeanor, punishable by up to five years’ incarceration. A

pre-sentence report was provided to the trial judge prior to the October 5,

2015 sentencing hearing.          At that hearing, defense counsel argued for a

county sentence with work release so Hoover could continue his employment

as a welder and thereby provide for his wife and child.3

       The trial judge noted Hoover’s employment and family situation, but

was more concerned with the fact that Hoover had 10 prior alcohol related

arrests, had served a state sentence for a felony drug conviction and had

completed a rehabilitation program, all without any apparent positive effect


____________________________________________


3
  In open court, it was represented that Hoover has two children. However,
in his Montour County Probation and Parole Office information sheet, Hoover
indicated he was responsible for only one child under the age of 18.



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on Hoover. The trial judge also noted that on his Montour County Probation

and Parole Office information sheet, Hoover stated he did not have an

alcohol problem. When Hoover claimed he filled the form out in a hurry and

simply made a mistake, the trial judge stated, “That just means you’re not

paying attention to this very important thing.” N.T. Sentencing, 10/5/2015,

at 4. Considering all the factors, the trial court found no reason to deviate

from the sentencing guidelines, and imposed a 12-30 month term of

incarceration.4     The 12-month minimum represented the bottom of the

standard range sentence and the 30-month maximum sentence necessitated

incarceration in a state correctional facility.

       After the trial judge announced his decision, defense counsel inquired

about RRRI eligibility, asserting Hoover was RRRI eligible. However, the trial

judge stated he had investigated RRRI eligibility and had determined,

“Simple assault is a disqualifier, we researched that.     It’s an M-3 simple

assault is a disqualifier.     So put in the Order: The Defendant is not RRRI

eligible.” Id. at 7. The trial judge asserts, and our review of the certified

record confirms, the 12-30 month sentence was never reduced to a written

order nor entered on the docket.




____________________________________________


4
  The offense gravity score for DUI, general impairment, refused testing (2 nd
offense) is a five, and Hoover had a prior score of five, producing a standard
range minimum sentence of between 12 to 18 months’ incarceration.



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        In the evening of October 5, 2015, the trial judge came to realize that

pursuant to 61 Pa.C.S. § 4503, a person convicted of simple assault as a

third-degree misdemeanor was eligible for RRRI. Accordingly, he contacted

both counsel and scheduled another sentencing hearing for October 9, 2015.

At the October 9, 2015 hearing, the trial judge indicated he was starting

from scratch. N.T. Sentencing, 10/9/2015, at 1, 3. Without objection, the

trial court incorporated the arguments and evidence presented on October 5,

2015. Both defense counsel and Hoover again requested a split sentence of

county time and work release to allow Hoover to continue providing for his

family. Defense counsel specifically argued that if the trial judge issued a

minimum sentence of 12, 13 or 14 months, then with RRRI eligibility,

Hoover would be able to serve his sentence in county and have work

release. Id. at 4.

        In pronouncing Hoover’s sentence, the trial judge stated:

        The Court: I regret that that[5] is a consequence. You know, in
        my position I am always after consistency. I am always after
        justice. I am always after rehabilitation. I am always after
        making sure the victims are compensated and, if not, satisfied in
        some way. There is so many. I want the Defendant’s family not
        to suffer any more than they have because of his or her conduct.
        I want the Defendant to be in a position when he or she comes
        out of prison to be productive. There is a lot of things that go
        through my mind. And, you know, I have been doing it long
        enough now to know I can’t do everything for everybody. So,
        my regrets regarding the consequence of this. But, I have to do
        what I have to do. And, again, it is in large part, number one, it
____________________________________________


5
    This refers to the likelihood Hoover would lose his job.



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      is standard range. Number two, you have done a stint in state
      prison. And, number three, the history of alcohol issues, the
      programs that you get in state prison are going to be so much
      better than you can get, in your case, in the Montour County
      Prison. And we don’t have a re-entry?

      [ADA] Warren: We don’t have a program.

      The Court: Columbia has something. So, it is just the big
      picture, Mr. Hoover. And, you may think this is not correct at
      this point. But, from my perspective, it is better for you to go to
      State Prison for the term you are going to serve.

Id. at 5-6.

      Against this background, Hoover now argues in imposing the October

9, 2015 sentence, the trial court was attempting to “negate the RRRI

minimum.”     Appellant’s Brief at 10.   This argument is not particularly well

developed, with Hoover also claiming:

      The re-sentencing actions of the [t]rial [c]ourt constitutes a
      direct violation of laws pertaining to sentencing. It constitutes a
      violation by the [t]rial [c]ourt of one of the basic principles of
      separation of powers, namely that the legislature makes the
      laws, and the judiciary applies and interprets the laws.

Id.

      Although the exact nature of Hoover’s claim is nebulous, based upon

the above quote, we interpret Hoover’s claim to be a challenge to the

legality of his sentence. Accordingly, we note:

      The scope and standard of review applied to determine the
      legality of a sentence are well established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. In evaluating a trial court's application of a statute, our
      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.


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Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011) (citation

omitted).

       Because the October 9, 2015 sentence clearly addressed Hoover’s

RRRI eligibility, the instant argument appears to be based upon the idea that

the trial court was mandated to apply the RRRI calculations to the 12-30

month sentence announced in open court on October 5, 2015. This is a false

premise.

       The trial court noted that while it stated that the October 9, 2015

hearing was for re-sentencing Hoover, “re-sentencing” was a misnomer.

The October 5, 2015 proposed sentence, which itself was based upon the

false premise that Hoover was not RRRI eligible, was never reduced to

writing nor entered on the docket.               See Pa.R.A.P. 1925(a) opinion,

12/10/2015, at 1.         It has long been the law of Pennsylvania that a

defendant’s sentence is that which is entered on the records of the court and

does not include statements made by the judge in passing sentence.         See

Commonwealth v. Foster, 324 A.2d 538 (Pa. Super. 1974) (distinguished

on other grounds).6 Accordingly, Hoover was not resentenced on October 9,

2015, never having been formally sentenced prior to that date.
____________________________________________


6
  To support this proposition, Foster cited case law from Pennsylvania
dating back to 1952, see Commonwealth ex rel. Hoban v. Burke, 92
A.2d 256 (Pa. Super. 1952), as well as quoting Justice Cardozo from Hill v.
United States ex rel. Wampler, 56 S.Ct. 760 (1935) (“The only sentence
known to the law is the sentence or judgment entered upon the records of
the court.”).



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      Additionally, it is clear from reading the notes of testimony from the

October 9, 2015 sentencing hearing that the trial judge was not attempting

to circumvent the statutory requirements of RRRI.          While the trial judge

recognized a benefit to Hoover being able to maintain his employment by

serving a county split sentence, he found a greater benefit in giving Hoover

access to the help he obviously needs to control his alcohol dependence. We

cannot discern how providing this opportunity to Hoover can be construed as

the trial judge violating the separation of powers.

      Finally, we note that even if the October 5, 2015 sentence had been

formally   entered,   it   would   have   been   an   illegal   sentence.   See

Commonwealth v. Hanna, 124 A.3d 757 (Pa. Super. 2015). We note, “an

illegal sentence is a legal nullity, and sentencing courts must have the

authority to correct such a sentence even if that means increasing the

sentence.”    Commonwealth v. Jones, 554 A.2d 50, 52 (Pa. 1989)

(distinguished on other grounds).

      Judgment of sentence affirmed.

      Judge Platt joins this memorandum.

      Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/4/2016


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