J-S49017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

ADAM ROBERT PITZER

                            Appellant                  No. 1590 WDA 2016


       Appeal from the Judgment of Sentence Dated September 19, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006295-2008

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

JUDGMENT ORDER BY SOLANO, J.:                   FILED: SEPTEMBER 29, 2017

        Appellant Adam Robert Pitzer appeals from the judgment of sentence

entered by the Allegheny County Court of Common Pleas following his

probation revocation hearing.          We vacate the judgment of sentence and

remand for resentencing as set forth below.

        On October 20, 2009, Appellant was convicted of aggravated indecent

assault of a complainant less than thirteen years old, indecent assault of a

person less than thirteen years old, endangering the welfare of children, and

corruption of minors.1 On April 28, 2010, Appellant was sentenced to 36-72

months’ confinement, followed by four years’ probation. On September 19,

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*   Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3425(a)(7), 3126(a)(7), 4303(a)(1), and 6301(a)(1),
respectively.
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2016, Appellant was found in violation of his probation and resentenced to

18-60 months’ confinement, followed by five years’ probation.

        Appellant appealed and now raises two issues:

        I.    Whether [Appellant]’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[2], thereby violating 61
        Pa.C.S.A. § 4505(a)?

        II.   Whether [Appellant]’s revocation sentence is illegal when
        the sum and substance of the incarceration portion now exceeds
        the maximum sentence allowable by law?

Appellant’s Brief at 5 (footnote and suggested answers omitted).

        Appellant first contends that “the trial court failed to determine, at the

time of sentencing, whether [Appellant] is an eligible offender under the

RRRI Act, thereby violating 61 Pa.C.S.A. § 4505(a).” Appellant’s Brief at 14.

For this reason, Appellant argues that his “revocation sentence is illegal.”

Id. Appellant did not preserve this issue in his Rule 1925(b) statement,3 but

because this challenge raises an issue relating to the legality of his sentence,

it presents a non-waivable claim. Commonwealth v. Tobin, 89 A.3d 663,

669 (Pa. Super. 2014).

        Section 4505(a) provides, “At the time of sentencing, the court shall

make a determination whether the defendant is an eligible offender [under


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2   61 Pa.C.S. §§ 4501-4512.
3 As this issue was not included in Appellant’s concise statement, the trial
court did not address it in its opinion.


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the RRRI Act].”4      The Commonwealth agrees that the trial court failed to

comply with this provision, stating: “Because the court below failed to make

a determination of Appellant’s eligibility under the [RRRI] program, the case

should be remanded for resentencing.” Commonwealth’s Brief at 10.

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

we explained:

       [O]ur legislature amended [42 Pa.C.S. §] 9756 to include a
       provision requiring sentencing courts to determine if a defendant
       is eligible for an RRRI minimum sentence.2 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.

          2 The Sentencing Code was amended . . . 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 . . . .

          42 Pa.C.S.A. § 9756(b.1) (emphasis added).




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4 An “eligible offender” is a defendant who “[d]oes not demonstrate a history
of present or past violent behavior,” has not been convicted on any of a list
of crimes or of specified types of crimes set forth in the statute, and 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.” 61 Pa.C.S. § 4503 (footnotes omitted).


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      As the Commonwealth concedes, the record discloses that the trial

court did not determine whether Appellant was eligible for a RRRI sentence.

See generally N.T., 9/19/16.        Therefore, we vacate the judgment of

sentence and remand for resentencing.      At that time, the trial court shall

determine if Appellant is eligible for a RRRI minimum sentence.      We need

not resolve Appellant’s second issue, which also challenges the legality of his

current sentence.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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