J-S68007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SABRINA YOUNG,

Appellant No. 1282 WDA 2015

Appeal from the Judgment of Sentence July 21, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011683-2007

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Sabrina Young, appeals from the judgment of sentence 

entered following the revocation of her probation. Because the trial court 

failed, at the time of sentencing, to make an on-the-record determination of 

Appellant’s eligibility for a Recidivism Risk Reduction Incentive (“RRRI”) 

sentence pursuant to the RRRI statute, 61 Pa.C.S. §§ 4501-4512, we vacate 

the judgment of sentence and remand for further proceedings.

The trial court summarized the protracted procedural history of this 

case as follows:

[Appellant] was charged with one (1) count of Retail Theft 

in relation to an incident at Macy’s Department Store. She 

initially appeared before this Court on August 23, 2007 and was 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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sentenced to a term of probation of three (3) years. No PostSentence Motions were filed and no direct appeal was taken.

[Appellant] next appeared before this Court on July 13, 

2010 for a probation violation hearing. At that hearing, this 

Court revoked [Appellant’s] probation and imposed a new term 

of probation of one (1) year. Again, no Post-Sentence Motions 

were filed and no direct appeal was taken.

[Appellant] again appeared before this Court on November 

15, 2011 for a probation violation hearing. At that hearing, this 

Court revoked [Appellant’s] probation and imposed a new term 

of probation of two (2) years. Again, no Post-Sentence Motions 

were filed and no direct appeal was taken.

Once again, [Appellant] appeared before this Court on 

March 12, 2013 for a probation violation hearing. At that 

hearing, this Court revoked [Appellant’s] probation and imposed 

a new term of probation of two (2) years. Again, no PostSentence Motions were filed and no direct appeal was taken.

[Appellant] next appeared before this Court on January 14, 

2014 for a probation violation hearing. At that hearing, this 

Court once again revoked [Appellant’s] probation and imposed a 

new term of probation of two (2) years.[1] Again, no PostSentence Motions were filed and no direct appeal was taken.

[Appellant] again appeared before this Court on July 21, 

2015 for a probation violation hearing. At the conclusion of that 

hearing, this Court revoked [Appellant’s] probation and imposed 

a term of imprisonment of three (3) to seven (7) years. Timely 

Post-Sentence Motions were filed and were denied on August 27, 

2015. This appeal followed.

Trial Court Opinion, 5/19/16, at 1-2 (footnote omitted). Both Appellant and 

the trial court have complied with Pa.R.A.P. 1925.

____________________________________________

1 We note that the sentencing order issued by the trial court on January 14, 

2014, also imposed a term of incarceration of time served, which equaled 

112 days of incarceration starting on September 25, 2013, and ending 

January 14, 2014. Order, 1/14/14, at 1.
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Appellant presents the following issue for our review:

Whether the trial court imposed an illegal revocation sentence 

when it failed to determine, at the time of sentencing, whether 

[Appellant] is an eligible offender under the Recidivism Risk 

Reduction Incentive Act, thereby violating 61 Pa.C.S.A. § 

4505(a)?

Appellant’s Brief at 4.

Appellant argues the trial court imposed an illegal sentence when, at 

the time of sentencing, it failed to make an on-the-record determination of 

whether Appellant is an eligible offender under the RRRI statute. Appellant’s 

Brief at 14-19. Appellant contends that her sentence must be vacated and 

the matter remanded for a new sentencing hearing. Id. at 18. The 

Commonwealth has conceded that the case should be remanded to the trial 

court for a new sentencing hearing. Commonwealth’s Brief at 5-8.

We begin by observing that this Court clarified in Commonwealth v. 

Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc), that our scope of 

review following the revocation of probation is not limited solely to 

determining the validity of the probation revocation proceedings and the 

authority of the sentencing court to consider the same sentencing 

alternatives that it had at the time of the initial sentencing. Rather, it also 

includes challenges to the discretionary aspects of the sentence imposed. 

Specifically, we unequivocally held that “this Court’s scope of review in an 

appeal from a revocation sentencing includes discretionary sentencing 

challenges.” Cartrette, 83 A.3d at 1034. A challenge to the legality of 
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sentence is an attack upon the power of a court to impose (or, in this case, 

not to impose) a given sentence. Commonwealth v. Lipinski, 841 A.2d 

537, 539 (Pa. Super. 2004). Furthermore, with regard to determinations of 

RRRI eligibility, this Court has stated 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.” 

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

In fact, the Sentencing Code was amended, effective November 24, 

2008, to include the following section requiring RRRI eligibility 

determinations:

(b.1) Recidivism risk reduction incentive minimum 

sentence.--The court shall determine if the defendant is 

eligible for a recidivism risk reduction incentive minimum 

sentence under 61 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. § 9756(b.1) (emphases added). Thus, our legislature has made 

clear that it is the trial court’s responsibility to determine whether a 

defendant is RRRI eligible. 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.”) (emphases added).
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Our review of the certified record reflects that, at Appellant’s 

sentencing on July 21, 2015, the trial court failed to make a determination 

regarding whether Appellant was RRRI eligible. N.T., 7/21/15, at 2-10. 

Indeed, the record is devoid of any determination by the trial court at the 

time of sentencing as to the eligibility of Appellant for an RRRI minimum 

sentence. 

In her Pa.R.A.P. 1925(a) opinion, the Honorable Donna Jo McDaniel 

concluded that Appellant’s issue lacked merit and stated that “[the trial 

court] was correct in not imposing an RRRI sentence” because “[a] review of 

[Appellant’s] prior criminal history indicates” convictions of “violent 

offenses.” Trial Court Opinion, 5/19/16, at 3. This is not an acceptable 

justification for failing to make a determination on the record at the time of 

sentencing.

As previously stated, the requirement that a sentencing court 

determine whether a defendant is RRRI eligible pursuant to the RRRI statute 

has been incorporated into the Sentencing Code. 42 Pa.C.S. § 9756(b.1). 

The Sentencing Code further requires that “[a] record of the sentencing 

proceeding shall be made and preserved in such a manner that it can be 

transcribed as needed,” 42 Pa.C.S. § 9759(a), and that the court “disclose in 

open court during sentencing, a statement of the reasons for the sentence.” 

42 Pa.C.S. § 9721(b). Therefore, it is clear that an offender’s eligibility must 
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be determined by the sentencing court on the record at the sentencing 

hearing.

Accordingly, because the trial court failed to make a statutorily 

required determination regarding Appellant’s eligibility for an RRRI minimum 

sentence at the time of sentencing as required, the sentence imposed is 

illegal. Robinson, 7 A.3d at 871. Hence, we are constrained to vacate the 

judgment of sentence and remand this matter for resentencing.

In addition, we observe that in footnote six of her brief, Appellant also 

alleges that her instant sentence imposing a term of incarceration of three to 

seven years is illegal because it imposed the maximum sentence of seven 

years, and Appellant had previously served a term of incarceration of 112 

days. Appellant’s Brief at 18-19, n.6. Appellant contends that, because the 

instant sentence did not grant her credit for the 112 days of time previously 

served for this conviction of retail theft, the sentence is illegal. We agree.

As we have stated, a “challenge to the trial court’s failure to award 

credit for time served prior to sentencing involves the legality of sentence. A 

claim challenging the legality of a sentence is appealable as of right.” 

Commonwealth v. Little, 612 A.2d 1053, 1053 n.1 (Pa. Super. 1992).

With regard to awarding credit for time served, the Sentencing Code 

provides, in relevant part, as follows:

§ 9760. Credit for time served
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After reviewing the information submitted under section 

9737 (relating to report of outstanding charges and sentences) 

the court shall give credit as follows:

(1) Credit against the maximum term and any 

minimum term shall be given to the defendant for all 

time spent in custody as a result of the criminal 

charge for which a prison sentence is imposed or as 

a result of the conduct on which such a charge is 

based. Credit shall include credit for time spent in 

custody prior to trial, during trial, pending sentence, 

and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1).

Our review of the trial court’s sentencing order on appeal reflects that 

the trial court granted Appellant credit for time served totaling 430 days, 

starting on May 18, 2014, and ending on July 21, 2015. Order, 7/21/15, at 

1. However, as previously noted, for this particular conviction Appellant also 

served a term of incarceration of 112 days starting on September 25, 2013, 

and ending January 14, 2014. The trial court’s sentencing order dated July 

21, 2015 does not include credit for this period. Accordingly, upon remand 

we caution the trial court to calculate accurately the correct credit for time 

that Appellant has served for this conviction.

Judgment of sentence vacated. Case remanded for further 

proceedings consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016