Com. v. Hall, B.

Superior Court of Pennsylvania

Com. v. Hall, B.

DecidedSeptember 12, 2018

Docket264 WDA 2018

StatusUnpublished

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Com. v. Hall, B., (Pa. Ct. App. 2018).

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Opinion

J-S54028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIANNE MAE HALL : : Appellant : No. 264 WDA 2018

Appeal from the Judgment of Sentence1 of August 23, 2017 In the Court of Common Pleas of Bedford County Criminal Division at No(s): CP-05-CR-0000137-2016, CP-05-CR-0000209-2017

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 12, 2018

Brianne Mae Hall appeals from the trial court’s judgment of sentence

after she entered a negotiated guilty plea to possessing or transporting

liquefied ammonia gas/precursors and chemicals,2 possession with intent to

____________________________________________

1 Although Hall filed her notice of appeal from the January 9, 2018 order denying her nunc pro tunc post-sentence motion, we have amended the caption to reflect that the appeal is technically taken from the judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995) (order denying post-sentence motion acts to finalize judgment of sentence; thus, appeal is taken from judgment of sentence, not order denying post-sentence motion).

2 35 P.S. § 780-113.1(a)(3). J-S54028-18

deliver,3 operating a methamphetamine lab,4 risking catastrophe,5 and

recklessly endangering another person (REAP) (M-2) on docket No. 290 of

2017.6 Hall was sentenced to 2-4 years of incarceration7 and deemed not

eligible for the Recidivism Risk Reduction Incentive (RRRI)8 Program.9

Counsel has filed a petition to withdraw and brief pursuant to Anders and

McClendon.10 After careful review, we affirm and grant counsel’s motion to

withdraw.

After Hall was sentenced on the above-cited offenses, the trial court

received a letter from the Department of Corrections referencing both docket

numbers, 137 of 2016 and 209 of 2017, indicating that Hall was eligible for ____________________________________________

3 35 P.S. § 780-113(a)(30).

4 35 P.S. 780-113.4(a)(1).

5 18 Pa.C.S. § 3302(b).

6 18 Pa.C.S. § 2705.

7 Hall was also resentenced due to a probation violation on a separate docket, No. 137 of 2016, to a term of imprisonment of 3 months to 2 years to be served consecutive to the instant sentence (No. 270 of 2017). The aggregate sentence on Nos. 137 of 2016 and 270 of 2017 is 27 months to 6 years’ incarceration.

8 See generally 61 Pa.C.S.A. §§ 4501-4512 (RRRI Act).

9 See Sentencing Hearing, 7/28/17, at 8; see also Sentencing Order, 7/28/17, at ¶ 7. See 61 Pa.C.S. § 4505(a) (“at the time of sentencing, the court shall make a determination whether the defendant is an eligible offender.”).

10Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).

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the RRRI program. Hall filed a post-sentence motion nunc pro tunc requesting

her sentence be modified to reflect her RRRI eligibility. After a hearing on the

motion, the trial court denied the request. This timely appeal follows.

Before we address the merits of Hall’s claim on appeal, we must first

turn our attention to counsel’s request to withdraw. When counsel seeks to

withdraw pursuant to Anders, an appellate court may not review the merits

of the underlying issues of the appeal without first passing on counsel’s

request to withdraw. In order for counsel to withdraw from an appeal

pursuant to Anders, he or she must file a brief, which accompanies counsel’s

petition to withdraw, that: (1) provides a summary of the procedural history

and facts, with citations to the record; (2) refers to anything in the record that

counsel believes arguably supports the appeal; (3) sets forth counsel’s

conclusion that the appeal is frivolous; and (4) states counsel’s reasons for

concluding that the appeal is frivolous. Commonwealth v. Santiago, 978

A.2d 349, 361 (Pa. 2009).

Counsel must also furnish a copy of the brief to the defendant and advise

him of his right to retain new counsel, proceed pro se or raise any additional

points that he deems worthy of the court’s attention. Commonwealth v.

Ferguson, 761 A.2d 613, 616 (Pa. Super. 2000). Moreover, counsel must

attach to the Anders petition to withdraw a copy of the letter sent to the client

as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.

Super. 2005).

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Counsel has complied with the technical dictates outlined above.

Accordingly, we must now conduct our own independent review of the claim

raised on appeal to determine whether it is frivolous and, thus, whether we

should grant counsel’s motion to withdraw.

On appeal, Hall presents one issue for our consideration: “Whether the

court erred when it found [Hall] is not eligible for the [R]ecidivism [R]isk

[R]eduction [I]ncentive [P]rogram.” Appellant’s Brief at 7.

“The question of whether a defendant is . . . (RRRI) eligible presents a

question of statutory construction and implicates the legality of the sentence

imposed.”11 Commonwealth v. Robinson, 7 A.3d 868 (Pa. Super. 2010).

Therefore, the standard of review is de novo and the scope of review is

plenary. Commonwealth v. Barbaro, 94 A.3d 389 (Pa. Super. 2014). RRRI

eligibility permits offenders who exhibit good behavior and who complete

rehabilitative programs in prison to be eligible for reduced sentences.

Commonwealth v. Quiles, 166 A.3d 387 (Pa. Super. 2017). Not all

defendants qualify for RRRI eligibility, and, therefore, when a court imposes a

sentence of imprisonment in a state correctional facility, the court must also

determine if the defendant is eligible for an RRRI Act minimum sentence. Id. ____________________________________________

11 Even though Hall entered into a negotiated guilty plea, she is permitted to raise a legality of sentence claim. See Commonwealth v. Pantalion, 957 A.2d 1267 (Pa. Super. 2008) (when defendant enters negotiated guilty plea, he or she waives right to challenge on appeal all non-jurisdictional defects except legality of the sentence and validity of the plea).

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If a defendant is RRRI eligible, the court must impose an alternative RRRI

minimum sentence along with the minimum and maximum terms of

imprisonment that the court imposed as a matter of its sentencing discretion

under the Sentencing Code. 42 Pa.C.S. § 9756(b.1).12

Instantly, Hall entered a guilty plea to, among other offenses, REAP.

The crime of REAP is committed when a defendant “recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705. Under the RRRI statute, an “eligible

offender” is defined as:

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