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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLARENCE RICHBURG, : No. 2041 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 19, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011746-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Clarence Richburg appeals from the February 19, 2015 aggregate
judgment of sentence of two to five years’ imprisonment imposed after he
pled no contest to possession of a controlled substance and possession with
intent to deliver a controlled substance (“PWID”).1 After careful review, we
vacate the judgment of sentence and remand for resentencing.
The trial court summarized the relevant facts of this case as follows:
During the no-contest plea hearing, the parties
stipulated to the facts adduced during the
[suppression] plea hearing, which established that
on August 14, 2013, Philadelphia Police Officer
Jeffery Opalski, a five-year veteran of the police
department, and his partner, Officer Mundrick, were
working undercover in the vicinity of 54th Street and
* Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
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Haverford Avenue, a high crime and drug area, when
Officer Opalsk[i] observed [a]ppellant approach a
black female. Appellant engaged the female in a
conversation and then took small objects out of his
pocket, which he placed into the palm of the
woman’s open hand. The woman then handed
[a]ppellant some money and left the area.
Based on his experience, Officer Opalski
concluded that he had just witnessed a drug
transaction. He exited his vehicle and ordered
[a]ppellant to “Stop.” Appellant looked at the officer
and then fled into an apartment building located at
519 N. 54th Street and into one of the apartments.
He exited the apartment seconds later clutching an
object in his pocket at which point Officer Opalski
apprehended [a]ppellant. For his safety, the officer
patted the object in [a]ppellant’s pocket and
immediately recognized that the object was a
sandwich bag filled with pills. Officer Opalski
removed the object from [a]ppellant’s pocket and
recovered a total of sixty-two Oxycodone pills.
Appellant was immediately arrested and charged
with the offenses herein.
Trial court opinion, 1/15/16 at 2 (citations to notes of testimony omitted).
On November 12, 2013, appellant filed an omnibus pre-trial motion to
suppress the evidence obtained from the search of his person. Following a
hearing, the trial court denied appellant’s suppression motion on
December 10, 2014. As noted, appellant pled no contest to possession of a
controlled substance and PWID and was sentenced to two to five years’
imprisonment on February 19, 2015. That same day, appellant filed a
post-sentence motion for reconsideration of sentence and supplemental
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motion. On June 19, 2015, appellant’s motions were denied by operation of
law, pursuant to Pa.R.Crim.P. 720(B)(3). This timely appeal followed.2
On appeal, appellant raises the following issue for our review:
Did not the sentencing court err by failing to make a
determination as to appellant’s RRRI[3] eligibility and
failing to impose the RRRI minimum sentence in
violation of 61 Pa.C.S.A. § 4505 given that appellant
was eligible for such a sentence because he had no
history of violence?
Appellant’s brief at 3.
Appellant’s claim that the trial court failed to determine whether he is
eligible for an RRRI minimum sentence implicates the legality of his
sentence. See Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super.
2014) (stating, “a defendant’s challenge relative to the failure to apply a
RRRI minimum [is] a non-waivable illegal sentencing claim.” (citation
omitted)). “The determination as to whether the trial court imposed an
illegal sentence is a question of law; our standard of review in cases dealing
with questions of law is plenary.” Commonwealth v. Stradley, 50 A.3d
769, 772 (Pa.Super. 2012) (citation omitted).
In order to be entitled to an RRRI minimum sentence, appellant must
satisfy the statutory definition of “eligible offender,” as set forth in
61 Pa.C.S.A. § 4503. Section 4503 provides, in pertinent part, as follows:
2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
3
Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S.A. §§ 4501-
4512.
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A defendant or inmate convicted of a criminal
offense who will be committed to the custody of the
department and who meets all of the following
eligibility requirements:
(1) Does not demonstrate a history of
present or past violent behavior.
(2) Has not been subject to a sentence the
calculation of which includes an
enhancement for the use of a deadly
weapon as defined under law or the
sentencing guidelines promulgated by
the Pennsylvania Commission on
Sentencing or the attorney for the
Commonwealth has not demonstrated
that the defendant has been found guilty
of or was convicted of an offense
involving a deadly weapon or offense
under 18 Pa.C.S. Ch. 61 (relating to
firearms and other dangerous articles) or
the equivalent offense under the laws of
the United States or one of its territories
or possessions, another state, the
District of Columbia, the Commonwealth
of Puerto Rico or a foreign nation.
(3) Has not been found guilty of or
previously convicted of or adjudicated
delinquent for or an attempt or
conspiracy to commit a personal injury
crime as defined under section 103 of
the act of November 24, 1998 (P.L. 882,
No. 111), known as the Crime Victims
Act, or an equivalent offense under the
laws of the United States or one of its
territories or possessions, another state,
the District of Columbia, the
Commonwealth of Puerto Rico or a
foreign nation.
(4) Has not been found guilty or previously
convicted or adjudicated delinquent for
violating any of the following provisions
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or an equivalent offense under the laws
of the United States or one of its
territories or possessions, another state,
the District of Columbia, the
Commonwealth of Puerto Rico or a
foreign nation:
18 Pa.C.S. § 4302(a) (relating
to incest).
18 Pa.C.S. § 5901 (relating to
open lewdness).
18 Pa.C.S. Ch. 76 Subch. C
(relating to Internet child
pornography).
Received a criminal sentence
pursuant to 42 Pa.C.S. § 9712.1
(relating to sentences for
certain drug offenses committed
with firearms).
Any offense for which
registration is required under
42 Pa.C.S. Ch. 97 Subch. H
(relating to registration of
sexual offenders).
(5) 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.
(6) Has not been found guilty or previously
convicted of violating section 13(a)(14),
(30) or (37) of the act of April 14, 1972
(P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and
Cosmetic Act, where the sentence was
imposed pursuant to 18 Pa.C.S.
§ 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii),
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(7)(iii) or (8)(iii) (relating to drug
trafficking sentencing and penalties).
61 Pa.C.S.A. § 4503 (footnotes omitted). If a defendant satisfies the criteria
for an “eligible offender,” the trial court is required to impose an RRRI
minimum sentence. Id. § 4505(c)(2).
Instantly, the trial court concedes that it failed to consider and apply
the RRRI Act when it sentenced appellant, and therefore, his sentence is
illegal. (Trial court opinion, 1/15/16 at 3-5.) The Commonwealth, in turn,
indicates that a remand of this matter is necessary to determine if appellant
is eligible for an RRRI minimum sentence. (Commonwealth’s brief at 5-7.)
We agree.
In Commonwealth v. Thompkins, 2015 WL 7354549 (Pa.Super.
2015), a panel of this court recently held that Commonwealth v.
Robinson, 7 A.3d 868 (Pa.Super. 2010), is controlling over such matters.
Thompkins, 2015 WL 7354549 at *1. In Robinson, this court examined
the language of the RRRI Act and concluded 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.” Robinson, 7 A.3d at 971. Accordingly, we vacate appellant’s
February 19, 2015 judgment of sentence and remand this matter for
resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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Com. v. Richburg, C.
Combined Opinion