J-S54037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARISSA CARSON :
:
Appellant : No. 332 WDA 2017
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003236-2014
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2017
Appellant, Charissa Carson, appeals from her judgment of sentence of
seventeen to thirty-seven months’ imprisonment following revocation of her
parole and probation for retail theft.1 Appellant argues that the trial court
failed to determine whether she was eligible for sentencing under the
Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512.
We conclude that further proceedings are necessary to determine whether
Appellant is eligible for an RRRI sentence.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a).
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On April 28, 2015, Appellant pleaded guilty to one count of retail
theft,2 graded as a first degree misdemeanor, for stealing clothes valued at
$629.99 from Macy’s Department Store. N.T. Guilty Plea Hr’g, 4/28/15, at
8-9. The court imposed a sentence of two to six months’ imprisonment
followed by twelve months’ probation. Id. at 11. The court granted
Appellant parole on April 30, 2015.
On November 23, 2015, Appellant appeared before the court for a
revocation hearing. The Commonwealth alleged, and Appellant admitted,
that (1) she violated her probation agreement by testing positive for
marijuana on May 8, 2015; and (2) she was unsuccessfully discharged on
August 19, 2015 from Stairways Drug and Alcohol Program due to lack of
attendance. N.T., 11/23/15, at 5-6. The Commonwealth also alleged that
Appellant failed to report to her probation officer on August 11, 2015 and
September 29, 2015. Id. at 5, 9. Following testimony from the probation
officer, the court concluded Appellant violated this term. Id. at 8-9. Based
upon these violations, the court revoked Appellant’s parole and recommitted
her with credit for 117 days of time served. Id. at 14. The court reimposed
the same probation period and told Appellant that he would agree to parole
her to inpatient treatment if she qualified. Id. at 15. The court also
____________________________________________
2
18 Pa.C.S. § 3929(a)(1).
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directed Appellant to undergo any testing or treatment that was deemed
appropriate. Id. The court granted Appellant parole on January 25, 2016.
On July 8, 2016, Appellant appeared for a second parole/probation
revocation proceeding and admitted violating two conditions of her probation
agreement. N.T., 7/27/16, at 5-6. She violated Condition 5 by failing to
notify her probation officer of an arrest for disorderly conduct on April 8,
2016. She pleaded guilty to this offense on June 3, 2016. She also violated
Condition 12 by attempting to evade arrest and concealing herself in the
stairwell when probation officers came to arrest her for her probation
violation. N.T., 7/8/16, at 12. When the officers found her, she swung at a
probation officer and was verbally belligerent. Id. at 13.
At sentencing on July 27, 2016, the court revoked Appellant’s parole
and probation, recommitted her to the two to six month sentence of
incarceration, and sentenced her to an additional five to eleven months’
incarceration (for an aggregate of seven to seventeen months’
imprisonment), followed by two years’ probation. Id. at 12. The court gave
her 289 days of credit for time served and stated that it would parole her
after she received an updated drug and alcohol assessment. Id. Appellant’s
attorney added that Appellant “definitely has a mental health or bipolar issue
that she needs to deal with.” N.T., 7/27/16, at 9-10. The court paroled
Appellant on August 15, 2016.
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On January 27, 2017, Appellant appeared for a third revocation
hearing, which gives rise to this appeal. She admitted violating Condition 5
of her probation agreement for failing to notify her probation officer of her
new arrest for the summary offense of disorderly conduct and her guilty plea
to this offense on January 10, 2017. N.T., 1/27/17, at 7. She also admitted
violating Condition 12 by missing three appointments with her probation
officer. Id. at 8. Appellant admitted relapsing on drugs after her release
from jail. Id. at 13, 14. Appellant testified that she needed help and asked
for the opportunity to obtain inpatient treatment for her mental health and
addiction. Id. at 15. She stated that she failed to contact her probation
officer after her release because she thought he would incarcerate her due
to her homelessness. Id. at 16.
Finding that Appellant did not demonstrate a desire to comply with the
terms of her supervision, the court revoked her parole, recommitted her to
the sentence of seven to seventeen months’ imprisonment, and imposed a
consecutive term of ten to twenty months’ imprisonment, which aggregated
to a state sentence of seventeen to thirty-seven months. Id. at 19. The
court gave her credit for 384 days’ time served and authorized her to receive
any drug/alcohol or mental health treatment available to her in the state
system. Id. at 19-20.
At the conclusion of the sentencing, the court stated that it was “not
sure if [Appellant is] triple RI eligible.” Id. at 19. It continued: “All I see
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are retail thefts. So if that’s the case, she would be triple RI eligible, but I
don’t know what her other history is.” Id. The court and the parties did not
further address Appellant’s eligibility. Later that day, however, the court
entered a written sentencing order declaring, without explanation, that
Appellant was ineligible for RRRI.
On February 3, 2017, Appellant filed a motion for reconsideration of
sentence asking the court to consider her long periods of sobriety, her
genuine desire to obtain help, and her concurrent diagnosis of bi-polar
disorder. The court denied this motion. Appellant filed a timely notice of
appeal, but counsel for Appellant filed a statement of intention to file a “no
merit” brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Counsel subsequently withdrew her appearance, and new counsel entered
her appearance for Appellant.
In this Court, new counsel filed a brief stating that she did not concur
with former counsel’s assessment that no non-frivolous issues exist. New
counsel asserted that Appellant’s sentence was illegal due to the trial court’s
failure to evaluate on the record whether Appellant was eligible for an RRRI
sentence. New counsel defined this issue as follows in her Statement of
Questions Presented:
Did the revocation court impose an illegal sentence when it
failed to make the statutorily required determination of
Appellant’s eligibility for a RRRI sentence at the time of
sentencing?
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Appellant’s Brief at 6. New counsel’s decision to brief this issue removes any
need to address whether Anders applies to this case. Further, we agree
with new counsel that Appellant should receive an additional sentencing
hearing to determine whether she is eligible for an RRRI sentence.
The RRRI Act “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.” 61 Pa.C.S. § 4502. As part of achieving
that aim, the RRRI Act requires the trial court to determine at the time of
sentencing whether the defendant is an “eligible offender.” 61 Pa.C.S. §
4505(a). If the court finds the defendant to be an eligible offender, or if the
prosecuting attorney waives the eligibility requirements under section
4505(b), the court must calculate minimum and maximum sentences, and
then impose the RRRI minimum sentence, which “shall be equal to three-
fourths of the minimum sentence imposed when the minimum sentence is
three years or less,” or “shall be equal to five-sixths of the minimum
sentence if the minimum sentence is greater than three years.” 61 Pa.C.S.
§ 4505(c)(2). If an eligible offender “successfully completes the program
plan, maintains a good conduct record and continues to remain an eligible
offender,” he or she may “be paroled on the RRRI minimum sentence date
unless the Board determines that parole would present an unreasonable risk
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to public safety or that other specified conditions have not been satisfied.”
37 Pa. Code § 96.1(b).
To become eligible for a RRRI minimum sentence, the defendant must
establish that she:
(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 [18
Pa.C.S. § 11.103],3 except for an offense under 18 Pa.C.S.
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3
18 Pa.C.S. § 11.103 defines “personal injury crime” as
[a]n act, attempt or threat to commit an act which would constitute a
misdemeanor or felony under the following:
18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. Ch. 27 (relating to assault).
18 Pa.C.S. Ch. 29 (relating to kidnapping).
18 Pa.C.S. Ch. 31 (relating to sexual offenses).
18 Pa.C.S. § 3301 (relating to arson and related offenses).
18 Pa.C.S. Ch. 37 (relating to robbery).
18 Pa.C.S. Ch. 49 Subch. B (relating to victim and witness
intimidation).
(Footnote Continued Next Page)
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§ 2701 (relating to simple assault) when the offense is a
misdemeanor of the third degree, 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 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).
_______________________
(Footnote Continued)
30 Pa.C.S. § 5502.1 (relating to homicide by watercraft while
operating under influence).
The former 75 Pa.C.S. § 3731 (relating to driving under influence of
alcohol or controlled substance) in cases involving bodily injury.
75 Pa.C.S. § 3732 (relating to homicide by vehicle).
75 Pa.C.S. § 3735 (relating to homicide by vehicle while driving under
influence).
75 Pa.C.S. § 3735.1 (relating to aggravated assault by vehicle while
driving under the influence).
75 Pa.C.S. § 3742 (relating to accidents involving death or personal
injury).
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing
drugs) in cases involving bodily injury.
The term includes violations of any protective order issued as a result
of an act related to domestic violence.
Id.
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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), (7)(iii) or (8)(iii)
(relating to drug trafficking sentencing and penalties).
61 Pa.C.S. § 4503.
“[W]here 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.” Commonwealth v.
Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).4 Issues relating to the
legality of sentence are non-waivable, and this Court can raise such issues
sua sponte. See Commonwealth v. Orellana, 86 A.3d 877, 882 n.7
(Pa.Super.2014) (citation omitted).
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4
We note that another panel of this Court has questioned Robinson’s
conclusion that this issue implicates the legality of the defendant’s sentence.
See Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014).
Nevertheless, Robinson remains binding precedent that we must apply to
this case.
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Here, the trial court made one momentary reference to the RRRI
issue—“all I see are retail thefts. So if that’s the case, she would be triple RI
eligible, but I don’t know what her other history is”—but failed to address
whether Appellant satisfied the six requisites for RRRI eligibility within
section 4503. To correct this omission, we will remand for an additional
hearing in which the court addresses all six requisites on the record.
We offer several further thoughts about the remand proceedings in
this case. A decision on five of the six RRRI requisites, subsections (2)
through (6) of section 4503, does not appear difficult. Appellant has “not
been subject to a sentence the calculation of which includes an enhancement
for the use of a deadly weapon.” 61 Pa.C.S. § 4503, definition of eligible
offender, subsection (2). With regard to subsection (3), Appellant was
convicted of one personal injury crime—simple assault graded as a third
degree misdemeanor, see n. 2, supra—but the RRRI Act specifically
provides that a simple assault conviction does not render defendants
ineligible for an RRRI sentence. See 61 Pa.C.S. § 4503(3). It appears that
Appellant has not been convicted or adjudicated delinquent of any offenses
listed in subsection (4). See id., subsection (4). She is not awaiting trial or
sentencing on charges for which conviction would cause her to become
ineligible under this definition. See id., subsection (5). Although she was
convicted in 1995 of possession with intent to deliver .58 grams of cocaine,
this amount is not enough to render her ineligible for RRRI treatment under
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subsection (6). Defendants only become ineligible for RRRI treatment if
they sell more than 100 grams of cocaine. See id., subsection (6) (citing 18
Pa.C.S. § 7508(a)(3)(iii)).5
Subsection (1) of section 4503 will present a more complex task on
remand. The court should examine whether the combination of Appellant’s
simple assault conviction,6 her disorderly conduct conviction(s),7 and other
acts, if any,8 “demonstrate a history of present or past violent behavior.”
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5
We note that the RRRI Act applies to mandatory minimum sentences
imposed under 18 Pa.C.S. § 7508. See Commonwealth v. Hansley, 47
A.3d 1180, 1188 (Pa. 2012).
6
Standing alone, Appellant’s simple assault conviction is insufficient to
demonstrate “a history of present or past violent behavior.” See
Commonwealth v. Cullen-Doyle, --- A.3d ---, 2017 WL 3097766, *4 (Pa.,
July 20, 2017) (single conviction for violent crime does not constitute history
of present or past violent behavior). However, Appellant’s simple assault
conviction, combined with other instances of violent behavior, might
establish a “history of present or past violent behavior.” See
Commonwealth v. Chester, 101 A.3d 56, 65 (Pa. 2014) (multiple prior
first degree burglary convictions constitute history of violent behavior under
RRRI Act).
7
At least one subsection of the disorderly conduct statute, 18 Pa.C.S. §
5503, is a crime of violent behavior, but others are not. Subsection
5503(a)(1) is a crime of violent behavior. See id. (“a person is guilty of
disorderly conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he . . . engages in fighting
or threatening, or in violent or tumultuous behavior”) (emphasis
added). Arguably, subsection 5503(a)(4)—“creat[ing] a hazardous or
physically offensive condition by any act which serves no legitimate purpose
of the actor”—is a crime of violence as well. Id. (emphasis added).
Conversely, subsections 5503(a)(2)—“making unreasonable noise”—and
subsections 5503(a)(3)—“us[ing] obscene language . . . or mak[ing] an
obscene gesture”—are not crimes of violence. Appellant has two disorderly
(Footnote Continued Next Page)
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If the court concludes that Appellant meets all criteria for eligibility
under the RRRI Act, the court shall impose an RRRI sentence in accordance
with section 4505(c).
Lastly, it is important to mention that remand for a hearing on the
RRRI issue will not disturb the other aspects of the court's sentencing
scheme. Accordingly, we affirm Appellant’s sentence to the extent that it
does not implicate her rights under the RRRI Act. Compare
Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986);
Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial
court errs in its sentence on one count in multi-count case, all sentences for
all counts will be vacated so court can restructure its entire sentencing
scheme).
Judgment of sentence affirmed in part and vacated in part. Judgment
of sentence is affirmed to the extent that it does not involve Appellant’s
eligibility for an RRRI sentence. Judgment of sentence vacated to the extent
_______________________
(Footnote Continued)
conduct convictions, but the record does not establish which subsection(s) of
section 5503 she violated. In accordance with the preceding paragraph, the
trial court should determine which subsection(s) she violated and whether
these convictions involve violent behavior.
8
Conceivably, the term “behavior” in subsection (1) not only encompasses
convictions for violent crimes but uncharged acts of violence. We are not
aware of any published decisions on this subject. Assuming uncharged acts
are admissible under subsection (1), we are not aware whether Appellant
committed any such acts. We leave it for the trial court to address these
issues on remand.
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that it denies RRRI relief. Case remanded for further proceedings in
accordance with this memorandum concerning Appellant’s eligibility for an
RRRI sentence. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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