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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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