J-S22037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHASE SHOMO JOHNSON : : Appellant : No. 802 WDA 2022 Appeal from the Judgment of Sentence Entered May 23, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0013051-2019 BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: JULY 14, 2023 Chase Shomo Johnson (Appellant) appeals from the judgment of sentence imposed after he pled guilty to one count each of persons not to possess firearms, 18 Pa.C.S.A. § 6105(a)(1), and firearms not to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1). We agree with the parties that Appellant’s sentence is illegal because the trial court failed to address Appellant’s eligibility under the Recidivism Risk Reduction Incentive (RRRI) Act.1 Thus, we vacate the judgment of sentence and remand for resentencing.

Appellant’s convictions arise from an incident that occurred on November 5, 2019, when Appellant fled in a vehicle from police and parole agents. See N.T. (Plea Hearing), 5/23/22, at 10-12. When police stopped the vehicle, they discovered Appellant with a loaded gun in plain view. Id. at ____________________________________________

1 61 Pa.C.S.A. §§ 4501-4512.

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11. Appellant was prohibited from possessing a firearm due to his prior convictions. Id. at 12.

On May 23, 2022, Appellant entered an open guilty plea. The trial court accepted Appellant’s plea and immediately sentenced him to an aggregate 6 – 12 years in prison, followed by two years of probation. Appellant timely filed a post-sentence motion to modify sentence on June 2, 2022. The trial court denied Appellant’s motion a week later. Appellant timely appealed.2 Appellant presents two questions for review: I. Whether the sum and substance of [Appellant’s] sentence is illegal where the Trial Court failed to determine, on the record at the time of sentencing, whether [Appellant] was eligible for a RRRI sentence, in violation of 61 Pa.C.S.A. § 4505(a)?

II. Whether the Trial Court abused its sentencing discretion by failing to apply all relevant sentencing criteria, including the protection of the public, the gravity of the offense, and [Appellant’s] character and rehabilitative needs, as required by 42 Pa.C.S.A. § 9721(b)?

Appellant’s Brief at 5 (footnote omitted).

Appellant claims, for the first time on appeal,3 that the trial court imposed an illegal sentence because it never determined Appellant’s RRRI ____________________________________________

2 Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

3 Appellant correctly states that although this is the first time that he raises this claim, it cannot be waived. Appellant’s Brief at 5 n.1 (citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007) (if a claim “clearly implicates the legality of sentence, whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be (Footnote Continued Next Page)

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eligibility. See id. at 16-19; see also id. at 18 n.3 (correctly noting Appellant’s “RRRI status was never addressed by the parties at the … guilty plea/sentencing hearing, nor was it addressed in the subsequently filed written sentencing order.”). Appellant emphasizes that the RRRI Act mandates: “At the time of sentencing, the court shall make a determination whether the defendant is an eligible offender.” Id. at 18 (quoting 61 Pa.C.S.A. § 4505(a) (Appellant’s emphasis)). Appellant directs our attention to Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010), holding 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.” Appellant’s Brief at 18-19. Appellant asks that we vacate his illegal sentence and remand for resentencing. Id. at 19.

The Commonwealth agrees that “because there was no inquiry made into RRRI eligibility, there is a basis for remand of this case for resentencing.”

Commonwealth Brief at 9; see also id. at 7 (stating “neither the trial court, nor the prosecutor, nor defense counsel made inquiry regarding RRRI.”).

“We apply a de novo standard of review and plenary scope of review to questions of legality of sentence.” Commonwealth v. Risoldi, 276 A.3d 279, 281 (Pa. Super. 2022). The Sentencing Code provides: The court shall determine if the defendant is eligible for a recidivism risk reduction incentive minimum sentence under 61 ____________________________________________

waived.”)); see also Commonwealth Brief at 7 (agreeing legality of sentence claims cannot be waived).

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Pa.C.S. Ch. 45 (relating to recidivism risk reduction incentive). If the defendant is eligible, the court shall impose a recidivism risk reduction incentive minimum sentence in addition to a minimum sentence and maximum sentence except, if the defendant was previously sentenced to two or more recidivism risk reduction incentive minimum sentences, the court shall have the discretion to impose a sentence with no recidivism risk reduction incentive minimum.

42 Pa.C.S.A. § 9756(b.1) (emphasis added). “This statute makes clear that sentencing courts are required to make an assessment as to an offender’s eligibility for a sentence under the RRRI Act, and lack discretion to forego imposing one where an offender is eligible.” Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa. 2021) (emphasis added).

In sum, Appellant’s sentence is illegal because the trial court failed to determine Appellant’s RRRI eligibility. See id.; Robinson, supra. Although the court may ultimately determine Appellant is not an “eligible offender,” it is required to make that determination when it imposes a sentence. See 61 Pa.C.S.A. § 4505(a); 42 Pa.C.S.A. § 9756(b.1). Accordingly, we vacate Appellant’s judgment of sentence and remand for the trial court to determine Appellant’s RRRI eligibility.4 Judgment of sentence vacated. Case remanded for resentencing in accordance with this Memorandum. Jurisdiction relinquished.

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4 Our disposition renders Appellant’s second issue moot.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2023

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