J-S79014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

RILUS BUXTON,

                          Appellant                  No. 3093 EDA 2013


      Appeal from the Judgment of Sentence entered October 2, 2013,
           in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0010342-2011


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED DECEMBER 11, 2014

      Rilus Buxton (“Appellant”) appeals from the judgment of sentence

imposed after he violated the conditions of his probation. Upon review, we

vacate the judgment of sentence and remand for the trial court to determine

Appellant’s RRRI eligibility.

      The trial court summarized the pertinent facts and procedural history

as follows:

            Appellant initially appeared before [the trial court] on
      October 26, 2011, charged with Retail Theft, a felony of the third
      degree [at Docket No. 10342-2011]. That same day, Appellant
      pled guilty and was sentenced to five (5) years [of] probation
      with a condition to pay fines, costs, and court fees. On June 3,
      2012, Appellant was arrested in Berks County, charged with
      Forgery - Unauthorized Act in Writing, a felony of the second
      degree. On June 14, 2012, Appellant was again arrested in
      Berks County and charged with Forgery – Alter Writing, a felony
      of the second degree. On June 27, 2012, Appellant was arrested
      in Chester County and charged with two (2) counts of Forgery –
      Utters Forged Writing, felonies of the third degree.

* Retired Senior Judge assigned to Superior Court.
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             On January 22, 2012, Appellant pled guilty to Forgery –
      Unauthorized Act in Writing and Forgery – Alter Writing in Berks
      County Court of Common Pleas and ... was sentenced to eleven
      and one-half to twenty-three (11½ - 23) months confinement
      and 3 years [of] probation for each charge, to run concurrently.
      On January 28, 2013, Appellant appeared before the Honorable
      Phyllis R. Streitel in the Chester County Court of Common Pleas
      and pled guilty to two (2) counts of Forgery — Uttered Writing.
      On that day, Appellant was sentenced to eight to sixteen (8-16)
      months confinement and two (2) years [of] probation, to run
      concurrent with Appellant’s Berks County sentences.        These
      convictions placed him in direct violation of his probation [at
      Docket No. 10342-2011].

Trial Court Opinion, 3/4/14, at 2-3.

      Following a hearing on October 2, 2013, the trial court found Appellant

to be in violation of his probation, and that same day sentenced Appellant to

three (3) to six (6) years of imprisonment. Appellant filed a post-sentence

motion on October 4, 2013, which the trial court denied on October 8, 2014.

      Appellant presents one issue for our review:

      1.    Did not the [trial] court err by failing to make a
            determination as to [A]ppellant’s RRRI eligibility and failing
            to impose the RRRI minimum sentence in violation of 61
            Pa.C.S.A. § 4505?


Appellant’s Brief at 3.

      Appellant argues that the trial court erred in failing to determine his

eligibility under the Recidivism Risk Reduction Incentive Act (“RRRI Act”), 61

Pa.C.S.A. §§ 4501 et seq. Appellant’s Brief at 7-10. Preliminary, we note

that Appellant raises this claim for the first time on appeal. See Pa.R.A.P.

302(a). While ordinarily issues not raised in the trial court are waived and

cannot be raised for the first time on appeal, in Commonwealth v.
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Robinson, 7 A.3d 868, 871 (Pa. Super. 2010), this Court held that “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” and such claim presents a non-waivable challenge to the

legality of the sentence.1        Thus, in light of Robinson, we conclude that

Appellant’s issue is not waived despite Appellant’s failure to raise it before

the trial court, preserve it in his post-sentence motion, or include it in his

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.            See

Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001) (“The

legality of a sentence is an issue that cannot be waived.”).

       With regard to sentences imposed after a defendant violates his

probation, we have explained that “'upon revocation of probation, the

sentencing alternatives available to the court shall be the same as were

available at the time of initial sentencing.’ 42 Pa.C.S. § 9771. ... [W]here

probation is violated, the trial court is free to impose any sentence permitted

under the Sentencing Code.” Commonwealth v. Partee, 86 A.3d 245, 249

(Pa. Super. 2014) (citations omitted). “[W]here the trial court violates the


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1
  But see Commonwealth v. Tobin, 89 A.3d 663, 669-670 (Pa. Super.
2014) (questioning the propriety of construing all RRRI eligibility questions
as non-waivable illegal sentencing matters and not a waivable legal question
where the appellant never preserved the issue, and suggesting that our
Supreme Court’s decision in Commonwealth v. Hansley, 47 A.3d 1180
(Pa. 2012) “calls into question the viability of a blanket holding that all
matters involving RRRI relate to the legality of a sentence”).


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Sentencing Code by failing to impose both a minimum and maximum

sentence pursuant to 42 Pa.C.S.A. § 9756(b), the sentence is illegal and

must be vacated.” Robinson, 7 A.3d at 870.

       The RRRI Act, which “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 … requires trial courts to

determine at the time of sentencing whether the defendant is an ‘eligible

offender.’” Commonwealth v. Chester, --- A.3d ---, 2014 WL 4745697 at

1 (Pa. 2014) (citing 61 Pa.C.S.A. § 4202, 4505(a)). If the trial court finds

the defendant to be an eligible offender, or if the prosecuting attorney

waives the eligibility requirements under Section 4505(b), the trial court

must calculate minimum and maximum sentences, and then impose the

RRRI minimum sentence. Id. (citing Section § 4505(c)).

       The Sentencing Code was amended, effective November 24, 2008, to

include the following section requiring the trial court to determine RRRI

eligibility:


                     (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
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              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).

       Pursuant to Robinson, “where the trial court fails to make a

statutorily required determination regarding a defendant's eligibility for an

RRRI minimum sentence as required” in accordance with §9756(b.1.), “the

sentence is illegal.”      Robinson, 7 A.3d at 871.   Thus, “[w]hen a court

imposes a sentence of imprisonment in a state correctional facility, the court

must also determine if the defendant is eligible for an RRRI Act minimum

sentence[.]” Hansley, 47 A.3d 1180, 1187. Although this Court has not

specifically addressed the question of whether probation violators are eligible

for an RRRI sentence, both Robinson and Hansley indicate that in all cases

where a sentence of imprisonment is imposed, the trial court must

determine the defendant’s RRRI eligibility.2

       Moreover, the RRRI Act, which bars from eligibility “those with a

history of violent crime, convicted of certain sex offenses, or subject to a

deadly weapon enhancement” does not exclude probation violators from

eligibility. Hansley, 47 A.3d at 1186 (The RRRI Act eligibility provision
____________________________________________


2
  Pursuant to 61 Pa.C.S. § 4505(c)(3), a court may decline to impose an
RRRI Act minimum sentence if the offender has already been afforded two or
more RRRI Act minimum sentences, thus restricting defendants, including
repeat probation violators, from receiving unlimited RRRI sentences.


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“which operates to exclude many crimes, and many circumstances, from the

Act's scope ... is detailed, intricate, and plain [and] the intricate construct

reveals that the General Assembly made very specific judgments about

which offenders and offenses were eligible.”); 61 Pa.C.S. § 4503.

       Because neither the Sentencing Code nor the RRRI Act contains any

language specifically excluding probation violators from consideration for an

RRRI sentence, after careful review, we conclude that the trial court was

statutorily required to make a determination as to Appellant’s RRRI eligibility

when it sentenced him to three (3) to six (6) years imprisonment for

violating his probation.       The trial court’s failure to determine Appellant’s

RRRI eligibility rendered Appellant’s sentence illegal.3 We therefore vacate

the judgment of sentence and remand for the trial court to determine

Appellant’s RRRI eligibility. See Robinson, supra at 870-71.

       Judgment of sentence vacated.             Case remanded.       Jurisdiction

relinquished.




____________________________________________


3
 The Commonwealth concedes that the trial court was required to make a
determination as to Appellant’s eligibility for an RRRI minimum sentence.
Commonwealth Brief at 5-7.


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J-S79014-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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