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NON
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COMMONWEALTH OF PENNSYLVANIA

v.

CHASE SHOMO JOHNSON

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

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: JU LY 14, 2023

Chase Shomo Johnson ( Appellant ) appeals from the judgment of

sentence imposed after he pled guilty to one count each of persons n ot to

p ossess f irearms, 18 Pa.C.S.A. § 6105(a)(1) , and f irea rms not to be carried

w ithout a l icense , 18 Pa.C.S.A

. § 6106(a)(1 )

. W e agree with the parties that

Appellant ’s sentence is ill egal because the trial court failed to address
Appellant’s eligibility under the Recidivism Risk Reduction Incentive (RRRI)

Act

. 1 Th us , w e vacate the judgment of sentence and remand for resentencing.
Appellant’s convictions arise from an incident that occurred o n
November 5, 2019, whe n Appellant fled in a vehicle from police and parole

agents. See N.T. ( P lea H earing) , 5/23/22, at 10

- 12

. When police stopp ed

the vehicle, they discovered Appellant with a loaded gun in plain view. Id. at

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1 61 Pa.C.S.A. §§ 4501

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11. Appellant was prohibited from possessing a firearm due to his prior

convictions. Id. at 12.

On May 23, 2022, A ppellant 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 denie d 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 sent encing, 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

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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 raise s 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)J

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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 sha ll 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 i llegal 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). T he Sentencing Code provides:

The court shall determine if the defendant is eligible for a recidivism ris k reduction incentive minimum sentence under 61

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

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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)

. “ T his 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 illega l because the trial court failed to
determine Appellant ’ s RRRI eligibility

. See id. ; R obinson , 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 O ur disposition renders Appellant’s second issue moot

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2023