J-S43004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN ANTHONY MOLINARI
Appellant No. 1073 WDA 2016
Appeal from the Judgment of Sentence imposed June 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0010529-2011
BEFORE: STABILE, SOLANO, and FITZGERALD*, JJ.
MEMORANDUM BY STABILE, J.: FILED October 2, 2017
Appellant, John Anthony Molinari, appeals from the judgment of
sentence imposed on June 22, 2016 in the Court of Common Pleas of
Allegheny County following revocation of his probation. Because the trial
court failed to determine Appellant’s eligibility under the Recidivism Risk
Reduction Incentive Act,1 we are constrained to vacate the judgment of
sentence and remand for further proceedings.
The factual background of this case is not in dispute. Briefly, Appellant
was charged with 44 counts of possession of child pornography, four counts
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S.A. §§ 4501-
4512.
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of sexual abuse of children: photographing, four counts of criminal use of a
communication facility, and 19 counts of obscene and other sexual materials
and performances.2 On October 13, 2011, Appellant entered a guilty plea to
one count of possession of child pornography pursuant to a plea agreement.
The remaining charges were withdrawn.
Appellant was immediately sentenced to five years’ probation and was
informed that he would have to register as a sexual offender for a ten-year
period under Megan’s Law. Appellant did not file post-trial motions or a
direct appeal.
On January 4, 2012, Appellant appeared before the trial court for a
review hearing. The trial court re-imposed the five-year probationary term
with zero tolerance and emphasized that Appellant was not to have any
contact with minors.
On April 18, 2015, Appellant appeared before the trial court for a
Gagnon I hearing.3 At the conclusion of the hearing, the trial court revoked
Appellant’s probation and sentenced him to a new five-year probationary
period. Once again, the trial court ordered Appellant not to have contact
with any minors.
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2
18 Pa.C.S.A. §§ 6312(d), 6312(c), 7512(a) and 5903(a), respectively.
3
Gagnon v, Scarpelli, 411 U.S. 778 (1973).
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On June 22, 2016, Appellant appeared before the trial court for a
Gagnon II hearing. After determining Appellant had violated his probation
by having contact with minors, the trial court revoked Appellant’s probation
and sentenced him to one and one-half to five years in prison with credit for
time served. Appellant filed a post-sentence motion requesting modification
of his sentence. The trial court denied the motion on July 14, 2016. This
timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents two issues for our consideration:
I. Whether [Appellant’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
[RRRI] Act, thereby violating 61 Pa.C.S.A. § 4505(a)?
II. In revoking [Appellant’s] probation and imposing a
sentence of total confinement of 1½-5 years’ state
incarceration, whether the trial court abused its sentencing
discretion when [Appellant] committed only technical
violations of probation, and the requirements of 42
Pa.C.S.A. § 9771(c) and 42 Pa.C.S.A. § 9721(b) were not
met?
Appellant’s Brief at 11.4
In his first issue, Appellant argues that his sentence is illegal because
the trial court is statutorily required to determine, on the record at the time
of sentencing, whether a defendant is an eligible offender under the RRRI
Act. Appellant asserts that the trial court failed to make that mandatory
____________________________________________
4
We have reordered Appellant’s issues for ease of discussion.
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determination at the time of the hearing during which the trial court revoked
Appellant’s probation and sentenced him to prison. Therefore, he contends,
because there is no statutory authorization for his particular sentence, the
sentence is illegal and cannot be allowed to stand.
In its brief, the Commonwealth acknowledges that the trial court’s
failure to consider RRRI eligibility renders Appellant’s sentence illegal and
agrees with Appellant that the judgment of sentence should be vacated.
Although the Commonwealth does not concede that Appellant is RRRI
eligible, the Commonwealth agrees that we should remand the case for
resentencing.
We first note that Appellant did not preserve his RRRI claim in his Rule
1925(b) statement. Although claims not raised in a 1925(b) statement are
generally waived, there is no waiver here because the failure to make an on-
the-record determination of Appellant’s RRRI eligibility implicates the legality
of his sentence and is non-waivable. Commonwealth v. Tobin, 89 A.3d
663, 669 (Pa. Super. 2014); Commonwealth v. Robinson, 7 A.3d 868,
871 (Pa. Super. 2010) (non-waivable challenge to the legality of sentence
presented “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.”).
Our review of the record confirms that the issue of RRRI eligibility was
not discussed at Appellant’s June 22, 2016 hearing and the trial court did not
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make any determination or even any inquiry on the record. Because the
trial court was statutorily required to make a determination of Appellant’s
RRRI eligibility at the time of Appellant’s hearing but failed to do so, we have
no choice but to vacate the judgment of sentence and remand for the trial
court to make an RRRI eligibility determination and impose a new sentence.
In light of our disposition of Appellant’s RRRI claim, we need not address his
remaining claim.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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