[J-34-2014] [MO: Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**TERRY LEE TAYLOR, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 65 MAP 2013**  **Appeal from the Order of the Superior Court entered December 17, 2012 at No.**  **317 MDA 2012 which Affirmed the Judgment of Sentence of Franklin County**  **Court of Common Pleas, Criminal Division entered January 11, 2012 at No.**  **CP-28-CR-0001177-2011. ARGUED: May 6, 2014** 

DISSENTING OPINION

MR. JUSTICE EAKIN DECIDED: November 20, 2014 **I cannot agree a court has no authority to sentence with out an assessment which**  **“[t]he defendant shall be subject to[.]” 75 Pa.C.S . § 3814(2). Furthermore, I disagree**  **that the lack of assessment appellant’s sentence illegal , as the sentence imposed was**  **within the lawful range regardless of the assessment resul ts. I respectfully dissent.**  **Being “subject to” an assessment is a far cry from having a right to an assessment.**  **The accused here was “subject to” many things, including a ll the potential sentencing**  **options and consequences available under the law — that does not make those**  **consequences mandatory. The clear import of this langua ge is that if the court ordered**  **an assessment, the accused must cooperate — he is “subject to it.” It suggests the**  **legislature thought an assessment would be a good idea, helping the court fashion an**  **appropriate sentence. However, it is difficult to find where it unequivocally demands an**  **assessment on pain of causing the sentence to be illegal . Does a judge impose an**  **illegal sentence by sentencing without something to wh ich a defendant is merely “subject** **[J-34-2014] [MO: Baer, J.] - 2**

**to” and nothing more? I think not. It might be so i f the defendant was “entitled to” the**  **assessment, or the judge was “required” to order it, or the assessment was “mandatory,”**  **but that simply is not what the statute says. Respectful ly, appellant has slipped the**  **rabbit into the hat by premising his argument on the conclusory premise that § 3814(2) is**  **a right of the accused, not an obligation. Being “sub ject to” an assessment does not**  **make the assessment something to which one is entitled. Even if failure to obtain an assessment is an error, we**  **must remember that not every sentencing error renders a sentence illegal. See**  **Commonwealth v. Foster, 17 A.3d 332, 356 (Pa. 2011) (Eakin, J., concurring) (“The**  **re is a difference between something that is wrong, and something that is illegal.**  **”). Here, appellant was sentenced to 45 days to six months imprisonment, a sentence within**  **the lawful range. 1**  **Consequently, the failure to obtain a full assessment, even if error, does not impact the**  **lawfulness of appellant’s sentence. What the lack of a full assessment does impact is the discreti**  **onary aspects of the sentence. Indeed, the very nature of an assessment is to**  **assist the court’s discretion. Section 3814(1) says quite clearly the evaluation under**  **§ 3816 is “to assist the court in determining what type of sentence would benefit the**  **defendant and the public[,]” id., § 3814(1) — that is, to assist the determination of sentence**  **, a matter of the court’s**

**discretion. It is not to direct the court or restrict th e court; it does not compel the court,**  **suggest a mandatory result, or affect the statutory mini mums or maximums. Likewise, §**  **3816(a) repeats the same language. Both involve the discretionary aspects of the** 

**1 Thirty days is appellant’s mandatory minimum sentence,**  **see 75 Pa.C.S. § 3804(b)(2)(i); six months is appellant’s statutorily ava**  **ilable maximum sentence, see id., § 3803(b)(1).** **[J-34-2014] [MO: Baer, J.] - 3**

**sentence, by their very definition, and discretionary a spects of sentencing do not entail**  **legality of sentence. Because I find the assessment does not affect the legali**  **ty of sentence, I would not go further and address the issue of waiver. I also not**  **e that the transcripts support the suggestion that appellant attempted to use the assessment**  **issue to further delay his sentencing. See N.T. Sentencing, 1/11/12, at 3-4; see**  **also Trial Court Opinion, 4/23/12, at 3-4. This does concern the dangers of treating the a**  **ssessment as a right of the accused rather than a tool of the court. Accordingly, I**  **dissent. Mr. Justice Stevens joins this dissenting opinion.**