Com. v. Whalley, M.

2024 Pa. Super. 247

• Court: Superior Court of Pennsylvania
• Decided: October 29, 2024
• Docket: 1665 MDA 2023
• Status: Published

Opinion

J-S26024-24

2024 PA Super 247

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL JUSTIN WHALLEY : : Appellant : No. 1665 MDA 2023

Appeal from the Judgment of Sentence Entered October 17, 2023 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001133-2023

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

OPINION BY OLSON, J.: FILED: OCTOBER 29, 2024

Appellant, Michael Justin Whalley, appeals from the judgment of

sentence entered on October 17, 2023, as made final by the denial of

Appellant’s post-sentence motion on November 6, 2023. We affirm.

On July 21, 2023, Appellant pleaded guilty to flight to avoid

apprehension.1 As the trial court explained:

[On July 21, 2023, the trial court] granted Appellant’s request for his release from incarceration in order to participate in substance addiction treatment at Gaudenzia Common Ground. Subsequently, Appellant participated in treatment at the Salvation Army – Binghamton[; however, Appellant] was unsuccessfully discharged from that program and remanded to the Lackawanna County Prison to await sentencing.

Trial Court Opinion, 3/18/24, at 1-2 (citations omitted).

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1 18 Pa.C.S.A. § 5126(a). J-S26024-24

At the beginning of Appellant’s October 17, 2023 sentencing hearing,

the trial court stated that it reviewed Appellant’s pre-sentence investigation

(“PSI”) report. N.T. Sentencing, 10/17/23, at 2. The trial court then

sentenced Appellant to serve 12 to 24 months in prison for his conviction.2

Id. at 5. During sentencing, the trial court did not state, on the record,

whether Appellant was an “eligible offender” for purposes of the recidivism

risk reduction incentive (“RRRI”) program. See id. at 1-6. Nevertheless,

within its later-filed opinion, the trial court explained:

Prior to sentencing, [the trial court] carefully reviewed the [PSI] report, the applicable standard Sentencing Guidelines, the circumstances surrounding Appellant’s life, criminal history, and the underlying facts of the offenses. Following that review, [the trial court] made a determination as to Appellant’s RRRI eligibility and found that Appellant was ineligible for [an] RRRI minimum sentence. Specifically, Appellant is ineligible for a RRRI sentence due to certain prior convictions. That is, Appellant has prior convictions for aggravated assault, aggravated harassment by a prisoner, and resisting arrest, which render him ineligible for [an] RRRI minimum sentence.

Trial Court Opinion, 3/18/24, at 3-4.

Following the denial of Appellant’s post-sentence motion, Appellant filed

a timely notice of appeal. Appellant raises one claim to this Court:

Whether the [trial] court imposed an illegal sentence when it failed to determine [Appellant’s] eligibility for RRRI on the record?

2 On October 27, 2023, plea counsel moved the trial court to reconsider Appellant’s sentence. The trial court, however, denied this request on November 6, 2023.

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Appellant’s Brief at 3.

“A claim that the trial court erroneously imposed an illegal sentence is

a question of law and, as such, our scope of review is plenary and our standard

of review is de novo.” Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.

2013) (quotation marks and citations omitted). “If no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction. An illegal sentence must be vacated.” Commonwealth v.

Hughes, 986 A.2d 159, 160 (Pa. Super. 2009) (quotation marks and citations

omitted). “Moreover, challenges to an illegal sentence can never be waived

and may be reviewed sua sponte by this Court.” Id. at 161 (quotation marks

and citations omitted); see also Commonwealth v. Prinkey, 277 A.3d 554,

563 (Pa. 2022) (“the appellant’s challenge implicates the legality of his

sentence” where, “assuming the appellant’s claim prevails, the result would

be that the trial court lacked authority to impose the sentence at issue”).

As is relevant to the case at bar, the Sentencing Code provides:

The court shall determine if the defendant is eligible for [an RRRI] minimum sentence. . . . If the defendant is eligible, the court shall impose [an RRRI] minimum sentence in addition to a minimum sentence and maximum sentence.

42 Pa.C.S.A. § 9756(b.1); see also 61 Pa.C.S.A. § 4505(a) (“[a]t the time of

sentencing, the court shall make a determination whether the defendant is an

eligible offender” for purposes of RRRI).

This Court has held that, since Section 9756(b.1) “include[s] a provision

requiring sentencing courts to determine if a defendant is eligible for an RRRI

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minimum sentence,” “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.” Commonwealth v. Robinson,

7 A.3d 868, 871 (Pa. Super. 2010).3

On appeal, Appellant does not contest the trial court’s factual statement

that, prior to sentencing, it “made a determination as to Appellant’s RRRI

eligibility and found that Appellant was ineligible for [an] RRRI minimum

3 Certain decisions issued by this Court have questioned the rationale which

holds that the use of mandatory terms such as “shall” in Section 9756(b.1) links a trial court’s failure to make an RRRI assessment to the imposition of an unlawful sentence. In Commonwealth v. Tobin, a panel of this Court reasoned:

The rationale for concluding that RRRI eligibility is an illegal sentencing issue rests on the grounds that the RRRI statute declares that a court “shall” determine eligibility. [Robinson, 7 A.3d at 871 n. 2]. Similar use of the word “shall,” nonetheless, appears in discussing a trial court's obligation to consider the sentencing guidelines as well as state the reasons for the sentence imposed, see 42 Pa.C.S.A. § 9721, which are not considered legality of sentence concerns. Succinctly put, the use of the word “shall” in a sentencing statute is far from dispositive of whether a claim relates to an illegal sentence. See Commonwealth v. Schutzues, 54 A.3d 86 (Pa. Super. 2012); Commonwealth v. Cappellini, 690 A.2d 1220, 1228 (Pa. Super. 1997) (despite 42 Pa.C.S.A. § 9721(b) providing, “the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed” the court concluded that a claim that the court did not provide its reasons for sentencing constituted a discretionary sentencing claim).

Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014).

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sentence . . . [because] Appellant has prior convictions for aggravated assault,

aggravated harassment by a prisoner, and resisting arrest, which render him

ineligible for [an] RRRI minimum sentence.” See Trial Court Opinion,

3/18/24, at 3-4; see also Appellant’s Brief at 1-12. Further, Appellant

concedes on appeal that he is, in fact, ineligible for an RRRI minimum

sentence. See Appellant’s Brief at 12 n.7 (“a review of [Appellant’s] criminal

history indicates [a past] conviction for aggravated assault, graded as a felony

of the second degree. . . . [This] single conviction makes [Appellant] an

‘ineligible person’ for RRRI under 61 Pa.C.S.A. § 4503(e)”). Appellant simply

claims that his sentence is illegal because the trial court failed to state, on

the record, that he was ineligible for an RRRI minimum sentence. Appellant’s

Brief at 11-12. In support of this claim, Appellant cites to our published

opinion in Commonwealth v. Risoldi, 276 A.3d 279 (Pa. Super. 2022),

where we stated: “[i]n [Robinson,] 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.” Risoldi, 276 A.3d at 281 (emphasis added). Appellant’s

claim fails, as Risoldi’s statement is not only dicta, but it constitutes an

unwarranted expansion of the relevant statutes and a misreading of

Robinson.

At the outset, Risoldi’s declaration that “a sentencing court’s failure to

determine on the record if a defendant is RRRI eligible results in the imposition

of an illegal sentence” constitutes nonbinding dicta, as this declaration was

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“unnecessary to the decision in the case and therefore not precedential.” See

Commonwealth v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018), quoting

BLACK'S LAW DICTIONARY 1240 (10th ed. 2014). Certainly, neither the facts nor

the legal issue in Risoldi concerned RRRI or Section § 9756(b.1) in the least.

Instead, the issue in Risoldi was whether the trial court imposed an illegal

sentence “because it did not determine [the defendant’s] reentry plan

eligibility on the record as required by Subsection 9756(b)(3) of the

Sentencing Code.” Risoldi, 276 A.3d at 280. However, “reentry plan

eligibility” is a completely different concept than “RRRI eligibility”4 – and the

two issues are controlled by completely different statutory subsections,

containing completely different statutory language.5 Thus, Risoldi’s

4 “Reentry plan eligibility” concerns the issue of whether a defendant is “eligible for parole prior to the expiration of his minimum sentence.” See Commonwealth v. Finley, 135 A.3d 196, 200 (Pa. Super. 2016). The RRRI Act, on the other hand, “permits offenders who exhibit good behavior and who complete rehabilitative programs in prison to be eligible for reduced sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

5 Compare 42 Pa.C.S.A. § 9756(b)(3) (“Except where the maximum sentence

imposed is two years or more, and except where a mandatory minimum sentence of imprisonment or total confinement is required by law, 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 minimum sentence”) (emphasis added), with 42 Pa.C.S.A. § 9756(b.1) (“[t]he [sentencing] court shall determine if the defendant is eligible for [an RRRI] sentence. . . . 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”) (emphasis added), and 61 Pa.C.S.A. § 4505(a) (“[a]t the time of sentencing, the court shall make a (Footnote Continued Next Page)

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statement that “a sentencing court’s failure to determine on the record if a

defendant is RRRI eligible results in the imposition of an illegal sentence” is

nonbinding dicta.

It is true that dicta may be considered for its persuasive value. See

Romero, 183 A.3d at 400 n.18. Nevertheless, Risoldi’s declaration is not

persuasive, as it deviates from the plain language of the relevant statutes and

misstates the holding in Robinson.

Simply stated, the relevant statutes do not require an “on the record”

declaration regarding the defendant’s ineligibility for RRRI sentencing, much

less dictate that the omission of such a declaration results in an unlawful

sentence. Instead, the relevant statutes merely require that the trial court

“determine” if the defendant is eligible for an RRRI minimum sentence – and,

if the defendant is eligible, the statutes require that the trial court “impose”

an RRRI minimum sentence. 42 Pa.C.S.A. § 9756(b.1) (emphasis added);

see also 61 Pa.C.S.A. § 4505(a).

Further, Robinson never held that a trial court must make an “on the

record” determination of RRRI eligibility. Rather, in Robinson, the trial court

expressly refused to make any determination of the defendant’s RRRI

eligibility because, it reasoned, “imposition of the negotiated sentence in [the]

case precluded application of the RRRI.” Robinson, 7 A.3d at 874. The

determination whether the defendant is an eligible offender” for purposes of RRRI) (emphasis added).

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Robinson panel then concluded that the trial court erred because “the

imposition of a negotiated sentence [did] not conflict with the statutory

scheme of the RRRI sentencing process and [did] not disqualify a defendant

from eligibility under the RRRI statute.” Id. at 875. Thus, we vacated the

judgment of sentence and remanded “for a determination of whether [the

defendant] is RRRI eligible.” Id. In doing so, the Robinson Court concluded

that the trial court erred not because it failed to make an “on the record”

determination of RRRI eligibility, but because it failed to make a

“determination” of RRRI eligibility at all.

Thus, we conclude, Risoldi’s declaration that “a sentencing court’s

failure to determine on the record if a defendant is RRRI eligible results in

the imposition of an illegal sentence” is nonbinding, unpersuasive dicta. See

Risoldi, 276 A.3d at 281 (emphasis added). The statutory language simply

requires that, “[a]t the time of sentencing, the court shall make a

determination whether the defendant is an eligible offender” for purposes of

RRRI. 61 Pa.C.S.A. § 4505(a); see also 42 Pa.C.S.A. § 9756(b.1). Here, it

is uncontested that, at the time of sentencing, the trial court “ma[de] a

determination” that Appellant was ineligible for an RRRI minimum sentence,

due to Appellant’s prior convictions for crimes of violence. See Trial Court

Opinion, 3/18/24, at 3-4. The trial court thus complied with the relevant

statutes and Appellant’s claim on appeal fails.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judge Kunselman joins.

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President Judge Emeritus Panella concurs in the result.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/29/2024

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