J-S60035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                   v.                      :
                                           :
LUIS OQUENDO,                              :
                                           :
                  Appellant                :    No. 3318 EDA 2015

          Appeal from the Judgment of Sentence October 5, 2015,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division, at No(s): CP-39-CR-0000369-2015

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

JUDGMENT ORDER BY STRASSBURGER, J.:FILED SEPTEMBER 30, 2016

      Luis Oquendo (Appellant) appeals from the judgment of sentence of

October 5, 2015, which imposed an aggregate sentence of 57 months to 15

years of imprisonment, in accordance with the plea agreement negotiated by

the parties. Because the trial court erred by failing to make a determination

as to Appellant’s eligibility for a Recidivism Risk Reduction Incentive (RRRI)

sentence under 61 Pa.C.S. §§ 4501-4512, we vacate Appellant’s sentence

and remand for further proceedings.

      On August 31, 2015, Appellant entered into a negotiated guilty plea to

multiple counts of possession of a controlled substance with the intent to

deliver, as well as one charge of criminal conspiracy.       As part of the

negotiated agreement, the Commonwealth agreed to a minimum sentence


* Retired Senior Judge assigned to the Superior Court.
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not to exceed the midpoint of Appellant’s standard-range sentencing

guidelines. The trial court imposed the sentence as negotiated; however, it

failed to make a determination of whether Appellant was RRRI eligible.

      Appellant timely filed a motion to reconsider wherein he requested the

trial court make a determination as to Appellant’s RRRI eligibility. The court

declined to do so, explaining that “the statute that [Appellant] cites with

regard to [mandatory minimum sentences] excluding a defendant from RRRI

eligibility is no longer in effect. It remains unclear to this [c]ourt how those

cases that previously would have excluded a defendant from RRRI eligibility

are now being treated.” Order, 10/9/2015, at 1 n.1. The court then noted

that “if the state correctional institution believes that [Appellant] is RRRI

eligible, the [c]ourt will be contacted and act appropriately at that time.” Id.

Appellant now asks us to consider this reasoning on appeal.

      Our legislature has made clear that it is the trial court’s responsibility

to determine whether a defendant is RRRI eligible. See 42 Pa.C.S. § 9756

(b.1) (“[At the time of sentencing t]he 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)”); 61 Pa.C.S. § 4505 (a) (“At the time of sentencing, the court

shall make a determination whether the defendant is an eligible offender.”)

(emphasis added). “Where the trial court fails to make a statutorily required

determination regarding a defendant’s eligibility for an RRRI minimum


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sentence   as   required,   the    sentence     is   illegal.”   Commonwealth         v.

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

      Accordingly,     because    the   trial   court   herein   failed   to    consider

Appellant’s eligibility for an RRRI sentence, the sentence imposed is illegal. 1

Thus, we vacate the judgment of sentence and remand this matter for a

determination of whether Appellant is RRRI eligible and, if deemed eligible,

resentencing with consideration of 61 Pa.C.S. § 4505(c).2

      Judgment    of    sentence    vacated.         Case    remanded     for    further

proceedings consistent with this order. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2016




1
  We note that “the imposition of a negotiated sentence does not conflict
with the statutory scheme of the RRRI sentencing process and does not
disqualify a defendant from eligibility under the RRRI statute.” Robinson, 7
A.3d at 875.
2
  In its brief, the Commonwealth concedes that Appellant’s sentence is illegal
and agrees that this matter must be remanded for resentencing following
the court’s determination of Appellant’s RRRI eligibility. Commonwealth’s
Brief at 6-7.
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