J-A33001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY VINCENT JACKSON
Appellant No. 1736 WDA 2015
Appeal from the Judgment of Sentence September 15, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008775-2011
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 03, 2017
Troy Vincent Jackson appeals nunc pro tunc from his probation
revocation sentence entered in the Court of Common Pleas of Allegheny
County. We vacate and remand for resentencing.
The trial court aptly set forth the relevant facts of the case as follows:
[Jackson] was charged with a Violation of the Uniform Firearms
Act: Persons Not to Possess Firearms, Simple Assault and
Recklessly Endangering Another Person. He appeared before
this [c]ourt on March 6, 2013[,] and entered a general plea of
guilty to all charges. On May 30, 2013, he again appeared
before this court and was sentenced to intermediate punishment
for a term of nine (9) months and a term of probation of three
(3) years. No Post-Sentence Motions were filed and no direct
appeal was taken.
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*
Retired Senior Judge assigned to the Superior Court.
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On September 15, 2015, [Jackson] appeared before this [c]ourt
for a probation violation hearing, having been convicted of
another offense.1 At that hearing, the [c]ourt revoked
[Jackson’s] [probation] and imposed a term of imprisonment of
four (4) to 10 years. Post-Sentence Motions were filed and
denied on September 28, 2015. Following the reinstatement of
his appellate rights, this direct appeal followed.
Trial Court Opinion, 4/12/16, at 2.
On appeal, Jackson presents the following issues for our consideration:
(1) Whether Mr. Jackson’s revocation sentence is illegal when
the trial court failed to determine, at the time of
sentencing, whether he is an eligible offender under the
Recidivism Risk Reduction Incentive [(RRRI)] Act, thereby
violating 61 Pa.C.S.A § 4505(a), and also when the sum
and substance of Mr. Jackson’s sentence exceeds the
maximum allowable sentence.
(2) Whether the trial court abused its discretion by denying
Mr. Jackson a legitimate, meaningful opportunity to
exercise his right of allocution, and personally address his
sentence for the specific purpose of effectuating
sentencing?2
Jackson first contends that the trial court impermissibly failed to
advise him of his RRRI eligibility and, as a result, his sentence is illegal. 3
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1
Specifically, Jackson pled guilty to one count of possession of a controlled
substance, 35 P.S. § 780-113(a)(16), as well as a summary traffic offense.
2
We have renumbered Jackson’s issues for ease of disposition.
3
Jackson did not raise this issue in his Pa.R.A.P. 1925(b) statement of
matters complained of on appeal. However, challenges to the legality of
sentence are non-waivable. Commonwealth v. Tobin, 89 A.3d 663 (Pa.
Super. 2014).
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Pursuant to 61 Pa.C.S. § 4505(a), “at the time of sentencing, the court
shall make a determination whether the defendant is an eligible offender.”
61 Pa.C.S. § 4505(a) (emphasis added). See also 42 Pa.C.S. § 9756(b.1)
(Sentencing Code provision stating that in imposing a sentence of total
confinement, at the time of sentencing, “the court shall determine if the
defendant is eligible for a recidivism risk reduction incentive minimum
sentence[.]”). Moreover, with regard to sentences imposed after a
defendant violates his or her probation, it is well known that “[u]pon
revocation[,] 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(b). When a trial court fails to make a statutorily-required RRRI
eligibility determination at sentencing, the defendant’s sentence is rendered
illegal. Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).4
Thus, we must vacate Jackson’s sentence and remand for resentencing at
which time the court shall determine Jackson’s eligibility for RRRI and, if he
is deemed eligible, sentence him accordingly.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.5
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4
We note that the prosecution has the discretion to waive RRRI eligibility
requirements; however, here, the Commonwealth has not elected to do so.
5
Because we are vacating and remanding for resentencing based on
Jackson’s first issue, we need not reach his second issue regarding whether
the court violated his right of allocution. We remind the sentencing court,
(Footnote Continued Next Page)
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Judge Solano joins this Memorandum.
Judge Strassburger files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
_______________________
(Footnote Continued)
however, that while it did inform Jackson of his right of allocution, the court
effectively cut him off from finishing his statement to the court. See
Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003)
(because “significance of allocution lies in its potential to sway the court
toward leniency prior to imposition of sentence . . .the effect of allocution on
the sentencing process can never be known with such certainty that a
reviewing court can conclude that there was no prejudice in its absence.”).
Upon resentencing, the court shall be mindful of the right to allocution and
the necessity to allow the defendant to fully exercise that right. See
Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989) (citation
omitted) (nothing has “lessen[ed] . . . the need for the defendant,
personally, to have the opportunity to present to the court his plea in
mitigation. The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for
himself.”).
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