J-A07001-22
2022 PA Super 94
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLAIRE A. RISOLDI :
:
Appellant : No. 1382 EDA 2021
Appeal from the Judgment of Sentence entered June 25, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002487-2015
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
OPINION BY DUBOW, J.: FILED MAY 24, 2022
Appellant, Claire A. Risoldi, appeals from the June 25, 2021 Judgment
of Sentence, entered after remand for resentencing on the restitution portion
of her sentence. Appellant challenges the legality of her sentence. After careful
review, we remand to the trial court to determine Appellant’s reentry plan
eligibility. We affirm all other aspects of Appellant’s sentence.
On February 5, 2019, a jury convicted Appellant of various offenses
related to her participation in an insurance fraud scheme. On May 17, 2019,
the court sentenced Appellant to an aggregate term of 11½ to 23 months’
incarceration and over $10 million in restitution. On review, this Court vacated
the restitution portion of Appellant’s sentence, remanded for resentencing
solely on that issue, and affirmed all other aspects of Appellant’s sentence.
Commonwealth v. Risoldi, 238 A.3d 434, 465 (Pa. Super. 2020). Our
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Supreme Court denied allowance of appeal. Commonwealth v. Risoldi, 244
A.3d 1230 (Pa. 2021).
On June 25, 2021, the court resentenced Appellant only on the
restitution portion of her sentence. At no point in Appellant’s initial sentencing
or resentencing did the court state whether Appellant is eligible to participate
in a reentry plan. Appellant timely filed a Notice of Appeal and both she and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant argues only that the sentencing court imposed an
illegal sentence on May 17, 2019, and reimposed an illegal sentence on June
25, 2021, because it did not determine her reentry plan eligibility on the record
as required by Subsection 9756(b)(3) of the Sentencing Code.1 Appellant’s Br.
at 11-19 (citing 42 Pa.C.S. § 9756(b)(3)).
We must first determine if Appellant’s issue does, in fact, implicate the
legality of her sentence. Subsection 9756(b)(3) states, in relevant part, that
“the court shall, at the time of sentencing, state whether or not the defendant
is eligible to participate in a reentry plan at any time prior to the expiration of
the minimum sentence or at the expiration of a specified portion of the
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1 Appellant also argues that if we find her sentence legal, we should conclude
that the sentencing court’s silence on her reentry eligibility inures to her
benefit. Appellant’s Br. at 4. Given our disposition, we decline to address
Appellant’s alternative argument.
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minimum sentence.”2 42 Pa.C.S. § 9756(b)(3) (emphasis added). We have
not yet determined if a sentencing court’s failure to satisfy Section
9756(b)(3)’s mandate implicates the legality of a defendant’s sentence.3
We have, however, analyzed the implications of a sentencing court’s
failure to state on the record if a defendant is eligible for a recidivism risk
reduction incentive (RRRI) minimum sentence under a different subsection of
the same statute, specifically Subsection 9756(b.1).4 Subsection 9756(b.1)
states, in relevant part, that “[t]he court shall determine if the defendant is
eligible for a recidivism risk reduction incentive minimum sentence[.]” 42
Pa.C.S. § 9756(b.1) (emphasis added).
In Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010),
we determined that based on the legislature’s use of the term “shall,” a
sentencing court’s failure to determine on the record if a defendant is RRRI
eligible results in the imposition of an illegal sentence. See also
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2 This section applies only where, as here, the sentencing court imposes a
maximum sentence of less than two years’ incarceration and “a mandatory
minimum sentence of imprisonment or total confinement is not required by
law[.]” 42 Pa.C.S. § 9756(b)(3).
3To the extent that we must interpret the language of Section 9756(b)(3),
we do so with a de novo standard of review and plenary scope of review.
Commonwealth v. Finnecy, 249 A.3d 903, 913 (Pa. 2021).
4 We observe that reentry plan eligibility functions similarly to an RRRI
minimum sentence in that both are designed to afford defendants the potential
to be paroled before the expiration of their minimum sentence through use of
education, training, and treatment programs. Compare 42 Pa.C.S. § 9756(e)
and 61 Pa.C.S. §§ 4505(c), 4506(a).
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Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014)
(explaining that in the context of RRRI eligibility, the legislature’s use of the
term “shall” makes “RRRI eligibility . . . an illegal sentencing issue”);
Commonwealth v. Seif, 943 WDA 2018, 2020 WL 5423953 at *8 (Pa. Super.
filed Sept. 10, 2020) (non-precedential decision) (explaining that a court
imposes an illegal sentence where it fails to state on the record if defendant
is RRRI eligible, even where defendant is plainly ineligible due to nature of
conviction).
This Court has, thus, concluded that the legislature’s use of the term
“shall” in Subsection 9756(b.1) confers on the sentencing court the
requirement that it determine a defendant’s RRRI eligibility at sentencing, and
failure to do so results in the imposition of an illegal sentence. The legislature’s
use of the same term, “shall,” in Subsection 9756(b)(3) similarly requires the
sentencing court to state whether a defendant is eligible to participate in a
reentry plan. Therefore, as with a court’s failure to satisfy the mandate of
Subsection 9756(b.1), a court’s failure to state on the record if a defendant is
reentry eligible pursuant to Subsection 9756(b)(3) implicates the legality of
the defendant’s sentence.
We apply a de novo standard of review and plenary scope of review to
questions of legality of sentence. Commonwealth v. Baldwin, 985 A.2d 830,
833 (Pa. 2009). Additionally, a challenge to the legality of sentence cannot be
waived. Commonwealth v. Taylor, 104 A.3d 479, 489 (Pa. 2014).
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In the instant case, the trial court did not state on the record at
sentencing if Appellant is eligible to participate in a reentry plan.5 That aspect
of Appellant’s sentence is, therefore, illegal and subject to correction. We
remand solely for the sentencing court to determine Appellant’s eligibility to
participate in a reentry plan pursuant to 42 Pa.C.S. § 9756(b)(3).6 We affirm
all other aspects of Appellant’s sentence.
Judgment of Sentence affirmed in part. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2022
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5 Such failure impacts Appellant’s eligibility for early parole, as “a court may
parole a defendant prior to the expiration of the minimum sentence only if the
defendant was made eligible to participate in a reentry plan at the time of
sentencing.” 42 Pa.C.S. § 9756(b)(3).
6 We note that as with RRRI eligibility, a sentencing court’s failure to specify
a defendant’s reentry plan eligibility need not vitiate the entire sentence. See
Robinson, 7 A.3d at 875; Commonwealth v. Thur, 906 A.2d 552, 569-70
(Pa. Super. 2006) (explaining that “if our decision does not alter the overall
scheme,” we need not fully vacate a sentence).
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Com. v. Risoldi, C.
Combined Opinion