J-A33001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TROY VINCENT JACKSON

Appellant No. 1736 WDA 2015

Appeal from the Judgment of Sentence September 15, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008775-2011

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 03, 2017

Troy Vincent Jackson appeals nunc pro tunc from his probation 

revocation sentence entered in the Court of Common Pleas of Allegheny 

County. We vacate and remand for resentencing.

The trial court aptly set forth the relevant facts of the case as follows:

[Jackson] was charged with a Violation of the Uniform Firearms 

Act: Persons Not to Possess Firearms, Simple Assault and 

Recklessly Endangering Another Person. He appeared before 

this [c]ourt on March 6, 2013[,] and entered a general plea of 

guilty to all charges. On May 30, 2013, he again appeared 

before this court and was sentenced to intermediate punishment 

for a term of nine (9) months and a term of probation of three 

(3) years. No Post-Sentence Motions were filed and no direct 

appeal was taken.

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* Retired Senior Judge assigned to the Superior Court.
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On September 15, 2015, [Jackson] appeared before this [c]ourt 

for a probation violation hearing, having been convicted of 

another offense.1 At that hearing, the [c]ourt revoked 

[Jackson’s] [probation] and imposed a term of imprisonment of 

four (4) to 10 years. Post-Sentence Motions were filed and 

denied on September 28, 2015. Following the reinstatement of 

his appellate rights, this direct appeal followed.

Trial Court Opinion, 4/12/16, at 2. 

On appeal, Jackson presents the following issues for our consideration:

(1) Whether Mr. Jackson’s revocation sentence is illegal when 

the trial court failed to determine, at the time of 

sentencing, whether he is an eligible offender under the 

Recidivism Risk Reduction Incentive [(RRRI)] Act, thereby 

violating 61 Pa.C.S.A § 4505(a), and also when the sum 

and substance of Mr. Jackson’s sentence exceeds the 

maximum allowable sentence. 

(2) Whether the trial court abused its discretion by denying 

Mr. Jackson a legitimate, meaningful opportunity to 

exercise his right of allocution, and personally address his 

sentence for the specific purpose of effectuating 

sentencing?2

Jackson first contends that the trial court impermissibly failed to 

advise him of his RRRI eligibility and, as a result, his sentence is illegal.3

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1

 Specifically, Jackson pled guilty to one count of possession of a controlled 

substance, 35 P.S. § 780-113(a)(16), as well as a summary traffic offense. 

2

 We have renumbered Jackson’s issues for ease of disposition. 

3

Jackson did not raise this issue in his Pa.R.A.P. 1925(b) statement of 

matters complained of on appeal. However, challenges to the legality of 

sentence are non-waivable. Commonwealth v. Tobin, 89 A.3d 663 (Pa. 

Super. 2014). 
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Pursuant to 61 Pa.C.S. § 4505(a), “at the time of sentencing, the court 

shall make a determination whether the defendant is an eligible offender.” 

61 Pa.C.S. § 4505(a) (emphasis added). See also 42 Pa.C.S. § 9756(b.1) 

(Sentencing Code provision stating that in imposing a sentence of total 

confinement, at the time of sentencing, “the court shall determine if the 

defendant is eligible for a recidivism risk reduction incentive minimum 

sentence[.]”). Moreover, with regard to sentences imposed after a 

defendant violates his or her probation, it is well known that “[u]pon 

revocation[,] the sentencing alternatives available to the court shall be the 

same as were available at the time of initial sentencing[.]” 42 Pa.C.S. § 

9771(b). When a trial court fails to make a statutorily-required RRRI 

eligibility determination at sentencing, the defendant’s sentence is rendered 

illegal. Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).4 

Thus, we must vacate Jackson’s sentence and remand for resentencing at 

which time the court shall determine Jackson’s eligibility for RRRI and, if he 

is deemed eligible, sentence him accordingly.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.5

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4 We note that the prosecution has the discretion to waive RRRI eligibility 

requirements; however, here, the Commonwealth has not elected to do so.

5 Because we are vacating and remanding for resentencing based on 

Jackson’s first issue, we need not reach his second issue regarding whether 

the court violated his right of allocution. We remind the sentencing court, 

(Footnote Continued Next Page)
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Judge Solano joins this Memorandum.

Judge Strassburger files a Concurring and Dissenting Memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/3/2017

(Footnote Continued) _______________________

however, that while it did inform Jackson of his right of allocution, the court 

effectively cut him off from finishing his statement to the court. See

Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003) 

(because “significance of allocution lies in its potential to sway the court 

toward leniency prior to imposition of sentence . . .the effect of allocution on 

the sentencing process can never be known with such certainty that a 

reviewing court can conclude that there was no prejudice in its absence.”). 

Upon resentencing, the court shall be mindful of the right to allocution and 

the necessity to allow the defendant to fully exercise that right. See 

Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989) (citation 

omitted) (nothing has “lessen[ed] . . . the need for the defendant, 

personally, to have the opportunity to present to the court his plea in 

mitigation. The most persuasive counsel may not be able to speak for a 

defendant as the defendant might, with halting eloquence, speak for 

himself.”).