J-S66010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                              Appellee

                        v.

LAMAR THOMPKINS,

                              Appellant                       No. 1857 WDA 2014


           Appeal from the Judgment of Sentence of August 19, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0014292-2013


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED NOVEMBER 19, 2015

       Appellant, Lamar Thompkins, appeals from the judgment of sentence

entered on August 19, 2014 following his guilty pleas to carrying a firearm

without a license, persons not to possess a firearm, possession of marijuana,

driving while operating license is suspended or revoked, failing to drive on

the   right    side    of    the   road,   improper   stop,   and   required   financial

responsibility.1      Upon review, we vacate Appellant’s judgment of sentence

and remand for additional proceedings.

       We briefly summarize the facts and procedural history of this case as

follows.      On June 3, 2014, Appellant pled guilty to the aforementioned

____________________________________________


1
 18 Pa.C.S.A. § 6105(a), 18 Pa.C.S.A. § 6106(a), 35 P.S. §780-113(a)(31),
75 Pa.C.S.A. § 1543(a), 75 Pa.C.S.A. § 3301(a), 75 Pa.C.S.A. § 3351, and
75 Pa.C.S.A. § 1786(f), respectively.



*Retired Senior Judge assigned to the Superior Court.
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charges. On August 19, 2014, the trial court sentenced Appellant to an

aggregate term of five to 10 years of imprisonment.               Appellant filed a

permissive nunc pro tunc post-sentence motion that the trial court denied on

October 16, 2014. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

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

         II.    Whether the trial          court abused its sentencing
                discretion when it       failed to consider relevant and
                required sentencing       criteria, including the character,
                personal history,         and rehabilitative needs of
                [Appellant], thereby     violating 42 Pa.C.S.A. § 9721(b)?

Appellant’s Brief at 6.

       In his first issue presented, Appellant avers:

         [Appellant’s] sentence is illegal. In Pennsylvania, the trial
         court is statutorily required to determine, at the time of
         sentencing, whether the defendant is an eligible offender
         under the RRRI Act. In the instant case, however, the trial
         court failed to make that mandatory determination. When
         no statutory authorization exists for a particular sentence, it
         is illegal, and an illegal sentence cannot be allowed to
         stand.      Accordingly, [Appellant’s] sentence must be

____________________________________________


2
   Appellant filed a notice of appeal on November 12, 2014. On November
21, 2014, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely. The trial court filed an opinion pursuant to Pa.R.A.P.
1925(a) on May 20, 2015.



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        vacated, and the matter must be remanded for a new
        sentencing hearing.

Id. at 17. The Commonwealth concedes the issue, stating it “is constrained

to agree with Appellant that his case should be remanded for resentencing.”

Commonwealth’s Brief at 7.

     We agree. Our decision in Commonwealth v. Robinson, 7 A.3d 868

(Pa. Super. 2010) is controlling.     In Robinson, this Court examined the

following language of the RRRI Act:

        (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.A. § 9756(b.1) (emphasis added).             The Robinson Court

determined that because the legislature implemented the term “shall,” it

statutorily mandated trial courts to determine whether a defendant meets

the RRRI eligibility requirements. If the trial court determines a defendant

meets those requirements, it must impose a RRRI minimum. “Accordingly,

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.” Robinson at 871.




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        Here, the trial court admits, “it did not make a specific finding”

regarding Appellant’s RRRI eligibility. Trial Court Opinion, 5/20/2015, at 3.

However, the trial court determined that Appellant’s sentence was legal

because “it was clear he was not eligible for a reduced sentence.” Id. More

specifically, “[a]t the sentencing hearing, [the trial court] noted [Appellant’s]

extensive criminal history and offenses including aggravated assault, drug

and gun charges, criminal mischief, etc., all of which disqualified him from

eligibility [under] the RRRI [Act]. Id. at 2-3.

        The fact remains that the trial court is statutorily mandated to make a

determination regarding RRRI Act eligibility and it did not. Accordingly, we

are constrained to vacate Appellant’s judgment of sentence and remand this

matter for a determination of whether Appellant is RRRI eligible pursuant to

61 Pa.C.S.A. § 4503.

        Appellant’s second issue challenges the discretionary aspects of his

sentence. Appellant’s Brief at 22-33. However, having already determined

Appellant is entitled to relief because his sentence is illegal, this issue is

moot.

        Judgment   of   sentence   vacated.       Case   remanded   for   further

proceedings. Jurisdiction relinquished.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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