J-S41005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

REGINALD HOPEWELL,

Appellant No. 1476 EDA 2015

Appeal from the Judgment of Sentence Entered February 19, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006515-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2016

Appellant, Reginald Hopewell, appeals from the judgment of sentence 

of 31⁄2 to 7 years’ incarceration, imposed after he was found guilty, following 

a non-jury trial, of possession with intent to deliver a controlled substance 

(PWID), conspiracy to commit PWID, and possession of a controlled 

substance. Appellant solely challenges the discretionary aspects of his 

sentence. After careful review, we vacate and remand for resentencing.

Summarizing the underlying facts of Appellant’s case is unnecessary to 

our disposition of his issue on appeal. We need only note that on December 

9, 2014, Appellant was found guilty of the above-stated offenses. A presentence report was prepared, and a sentencing hearing was conducted on 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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February 19, 2015. At the outset of that proceeding, the court asked if 

defense counsel or the Commonwealth wished to present argument 

regarding the offense gravity score, prior record score, or the applicable

sentencing guidelines. N.T. Sentencing, 2/19/15, at 3. The Commonwealth 

replied that, based on its calculations, and the information provided in the 

pre-sentence report, Appellant’s prior record score was 7 and he was 

classified as a Repeat Felony 1 and Felony 2 Offender (RFEL), making the 

standard guideline range 35 to 45 months’ imprisonment. See id. at 3-4; 

see also 204 Pa. Code § 303.4(a)(2) (defining the requirements for 

classification as an RFEL offender). Defense counsel then stated “[n]o 

argument[,]” and requested that the court impose a standard range 

sentence. Id. at 4. At the close of the hearing, the court sentenced 

Appellant to concurrent terms of 31⁄2 to 7 years’ incarceration for both his 

PWID and conspiracy convictions. Appellant’s conviction of possession of a 

controlled substance merged for sentencing purposes.

Appellant retained new counsel on the same day his sentence was 

imposed, and that attorney filed a timely post-sentence motion, arguing, 

inter alia, that Appellant’s prior record score was miscalculated and he was 

not an RFEL offender. The court ultimately denied that post-sentence 

motion, and Appellant filed a timely notice of appeal. Appellant also timely 

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Herein, Appellant presents 

one issue for our review:
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Did the lower court incorrectly assume that Appellant’s prior 

convictions were for offenses associated with heightened prior 

record points when no evidence of record supported that 

assumption?

Appellant’s Brief at 4.

Appellant correctly characterizes this claim as a challenge to the 

discretionary aspects of his sentence. See Commonwealth v. O’Bidos, 

849 A.2d 243, 253 (Pa. Super. 2004); Commonwealth v. Archer, 722 

A.2d 203, 210-211 (Pa. Super. 1998) (en banc). 

An appellant must satisfy a four-part test to invoke this Court's 

jurisdiction when challenging the discretionary aspects of a 

sentence. The appellant must satisfy all of the following:

(1) the appellant preserved the issue either by raising it at 

the time of sentencing or in a post[-]sentence motion; (2) 

the appellant filed a timely notice of appeal; (3) the 

appellant set forth a concise statement of reasons relied 

upon for the allowance of his appeal pursuant to Pa.R.A.P. 

2119(f); and (4) the appellant raises a substantial 

question for our review.

Commonwealth v. Tejada, 107 A.3d 788, 797-98 (Pa. Super. 2015) 

(citation omitted), appeal denied, 119 A.3d 351 (Pa. 2015).

Here, the trial court concludes that Appellant waived his sentencing 

claim by not objecting, at the sentencing hearing, to the calculation of his 

prior record score or his classification as an RFEL offender. See Trial Court 

Opinion, 10/7/15, at 10. We disagree. Appellant filed a timely postsentence motion raising this issue, he filed a timely notice of appeal, he 

includes a Rule 2119(f) statement in his brief to this Court, and he presents 

a substantial question for our review. See Commonwealth v. Johnson, 

758 A.2d 1214, 1216 (Pa. Super. 2000) (finding a substantial question was 
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presented where the defendant claimed the sentencing court erroneously 

calculated his prior record score and, thus, misapplied the sentencing 

guidelines). Accordingly, Appellant has satisfied each prong of the test for 

invoking this Court’s jurisdiction to address his claim, and we do so herein. 

Again, Appellant argues that his prior record score was erroneously 

calculated as a 7, when it is actually a 4, and that he was improperly 

classified as an RFEL offender. The Commonwealth concedes that “[t]here 

is insufficient evidence of record to show that [Appellant] was a repeat 

felony offender....” Commonwealth’s Brief at 4. Thus, “the Commonwealth 

does not oppose a remand for resentencing.” Id. Because we have no 

analysis by the trial court, which found Appellant’s claim waived, and 

because the Commonwealth concedes that the record supports Appellant’s 

argument, we conclude that the appropriate action is to vacate Appellant’s 

judgment of sentence and remand for the court to recalculate his prior 

record score and impose a new sentence under the correct guideline range.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/24/2016
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