Com. v. Buxton, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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