J

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

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD ALAN BROADUS JR.

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

PENNSYLVANIA

No. 652 WDA 2023 Appeal from the Judgment of Sentence Entered September 1, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0000006

- 2021

BEFORE: OLSON, J., KING, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED: June 14, 2024
Richard Alan Broadus, Jr. (“Broadus”) appeals from the judgment of
sentence imposed following his negotiated guilty plea to possession with intent
to deliver a controlled substance (“PWID”). 1 After careful review, we affirm.
We briefly summarize the rel evant factual and procedural history of this
case as follows. On September 1, 2021, the trial court accepted Broadus’
negotiated guilty plea to PWID based on his arrest for delivering 5,027 stamp
bags of fentanyl, weighing 98.6 grams, to a confidential in formant. See N.T.
9/1/21, at 2

- 17. Further, the Commonwealth agreed to nolle prosse all
remaining charges. Id . at 3, 17. Pursuant to the plea agreement, the trial
court sentenced Broadus to three to six years of imprisonment with credit for

time served

. Id . at 32

- 33. The trial court found that Broadus was ineligible

_________________ __________ ______ ____ _______

1 See 35 P.S. § 780

- 113(a)(30).J

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- 2

-

for both the Recidivism Risk Reduction Initiative 2 (“RRRI”) and the State Drug
Treatment Program 3 (“SDTP”). Id . at 20

- 32.

Broadus did not file a post

- sentence motion or appeal the sente ncing

order. However, Broadus filed petitions pursuant to the Post

- Conviction Relief
Act (“PCRA”) 4 in which he claimed that trial counsel was ineffective for failing
to file a post

- sentence motion and sought reinstatement of his post

- sentence
and direct appeal rights nunc pro tunc . The PCRA court granted the requested

relief and reinstated Broadus ’ pos t

- sentence and direct appeal rights nunc pro

tunc

. On January 27, 2023, Broadus timely filed a post

- sentence motion
challenging the denial of RRRI and SDTP. See Broadus’ Post

- Sentence Motion,
1/27/23, at 5. The trial court denied the motion on May 8, 20 23. See Trial
Court Order, 5/8/23. Thereafter, Broadus filed a timely notice of appeal
expressly appealing the trial court’s May 8, 2023 order, and the trial court
ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appea l

. Broadus complied, and in his concise statement he raised the
following claim of error: “The PCRA court erred in denying relief where trial
counsel was ineffective for failing to file post

- sentence motions and a direct
appeal to challenge the legality o f Broadus’s sentence, where he is eligible for

_________________ __________ ______ ____ _______

2 See 61 Pa.C.S.A. § 4504.

3 See 61 Pa.C.S.A. § 4105.

4 See 42 Pa.C.S.A. §§ 9541

- 9546.J

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RRRI and SDTP.” Concise Statement, 7/5/23, at 1 (unnecessary capitalization
omitted).
In his appellate brief, however, Broadus frames his issue on appeal as
follows: “The trial court erred in denying the post

- sentence motion because
Broadus was eligible for RRRI and SDTP.” Broadus’ Brief at 5 (unnecessary
capitalization omitted).
Preliminarily, we must determine whether Broadus preserved his issue

for our review. Generally, when a trial court directs a defen dant to file a

c oncise statement of errors complained of on appeal pursuant to Rule 1925(b),
any issues not raised in that statement will are waived

. See Commonwealth

v. Lord , 719 A.2d 306, 308 (Pa. 1998) ; see also Pa.R.A.P. 1925(b)(3)(vii)
(providing that “issues not included in the Statement . . . are waived ”).

However, a challenge which implicates the legality of an appellant’s sentence

is an exception to the issue preservation requirement. See Commonwealth

v. Thorne , 276 A.3d 1192, 119 6 (Pa. 2022) (holding that “ an appellate court

can address an appellant’s challenge to the legality of his sentence even if that

issue was not preserved in the trial court; indeed, an appellate court may
[even] raise and address such an issue sua sponte ”).

In his Rule 1925(b) statement, Broadus frames his issue as one of

ineffectiveness of trial counsel for failure to file a post

- sentence motion
challenging the trial court’s denial of eligibility under RRRI and SDTP. Clearly,

Broadus’ issue was improperly f ramed in the Rule 1925(b) statement, as heJ

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successfully sought PCRA relief in the form of reinstatement of his post

sentence and appeal rights and, therefore, was no longer claiming

ineffectiveness of counsel. Instead, although not indicated in his concis e
statement, Broadus intended to appeal the trial court’s denial of his post

sentence motion in which he specifically argued that his sentence should be

modified to make him eligible under both RRRI and SDTP.

This omission was noted by the trial court, whi ch observed in its Rule
1925(a) opinion that the only error raised in Broadus’ concise statement
“directly implicates the [trial c]ourt’s January 20, 2023 [order granting PCRA

relief and reinstating Broadus’ post

- sentence and appeal rights] from which

no a ppeal was taken.” Trial Court Opinion, 8/7/23, at 3

- 4. Nevertheless, the

trial court went on to address the merits of the issue that Broadus intended

to raise, i.e ., whether he “was ineligible for either RRRI or SDTP at the time

of sentence.” Id

. at 3

- 4

. Although the issue was incorrectly framed by counsel in the Rule
1925(b) statemen t , the trial court was able to ascertain the issue being raised
by Broadus in the appeal from the denial of his post

- sentence motion and

rendered an opinion addressing the m erits of the issue. Hence, appellate

review has not been hindered in this case and we shall address the merits of

Broadus’ SDTP sentencing claim. See Commonwealth v. Rogers , 250 A.3d
1209, 1225 (Pa. 2021) (holding that appellant’s claim as set forth in t he

concise statement, although brief, represented a good

- faith attempt to complyJ

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with Rule 1925 and did not prevent meaningful appellate review; thus, the
Superior Court should have considered merits of the issue since the purpose

of a concise statement “i s to assist the trial judge in apprehending the issues

and authoring an opinion accordingly for the benefit of the parties, the
appellate court, and the public”).
Broadus’ claim that the trial court erred in not making him eligible for
participation in SDT P presents a challenge to the discretionary aspects of his

sentence. However, because Broadus pled guilty, we must examine the effect
of his guilty plea upon his discretionary sentencing claim. “Generally, a plea
of guilty amounts to a waiver of all defe cts and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
validity of the guilty plea.” Commonwealth v. Reichle , 589 A.2d 1140, 1141
(Pa. Super. 1991) (citations omitted). It is well

- settled when the pl ea
agreement contains a negotiated sentence which is accepted and imposed by
the sentencing court, there is no authority to permit a challenge to the
discretionary aspects of the sentence. Id

. If either party to a negotiated plea
agreement believed the o ther side could, at any time following entry of
sentence, approach the judge and have a sentence unilaterally altered, neither
the Commonwealth nor any defendant would be willing to enter into such an

agreement. Id

. Permitting a discretionary appeal foll owing the entry of a
negotiated plea would undermine the designs and goals of plea bargaining and
would make a sham of the negotiated plea process. Id

.J

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In the instant case, Broadus agreed to plead guilty to possession with

intent to deliver a controlled s ubstance in exchange for a sentence of three to
six years’ incarceration followed by a term of probation to be set by the trial

court. See N.T., 9/1/21, at 2

- 3. Broadus now takes issue with this sentence
by arguing that the trial court erred by imposing “a sentence of total
confinement, which was unduly excessive and harsh, by focusing solely on the
seriousness of the crime, without consideration [of] Broadus’ unique
circumstances and rehabilitative needs”. Broadus’ Brief at 8. However,
Broadus agreed t o the terms of his guilty plea, including the specific duration
of the sentence which he now claims was “unduly excessive and harsh.” After
accepting Broadus’ plea, the trial court sentenced him to the agreed

- upon

sentence. See N.T., 9/1/21, at 32. Broa dus did not challenge the validity of
the plea proceedings or move to withdraw his plea. Accordingly, Broadus
waived his discretionary sentencing claim. See Reichle , 589 A.2d at 1141. 5

We next address Broadus’ challenge relative to the trial court’s failure
to apply a RRRI minimum presents a non

- waivable illegal sentencing claim.

See C ommonwealth v. Finnecy , 249 A.3d 903, 908 (Pa. 2021); see also

_________________ __________ ______ ____ _______

5 Even if the issue were not waived, the able trial court correctly determined that Broadus was ineligible for participation in SDTP. See Trial Court Opinion, 8/7/23 at 4

- 5 (Finding that the unambiguous language of the SDTP statute provides that “[t]he jud ge shall exclude the person from eligibility if the prosecuting attorney opposed eligibility”, 61 Pa. C.S.A. § 4104(a)(1); the Commonwealth opposed Broadus’ entry into the SDTP at the time of sentencing; and Broadus was statutorily ineligible based on prio r and current convictions for drug trafficking as defined in 61 Pa. C.S.A. § 4103).J

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Commonwealth v. Tobin , 89 A.3d 663, 670 (Pa. Super. 2014) (holdi ng that
a challenge to a court’s failure to impose an RRRI sentence implicates the
legality of the sentence and cannot be waived). Therefore, we may address
Broadus’ claim that the trial court erred in denying a RRRI minimum sentence.

This Court’s standa rd of review when reviewing an illegal sentencing

claims is well

- settled. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court’s interpretation of a statute.
See Commonwealth v. Ausberry , 891 A.2d 752, 754 (Pa . Super. 2006).
Our standard of review over such questions is de novo and our scope of review
is plenary. See Commonwealth v. Diamond , 945 A.2d 252, 256 (Pa. Super.
2008).
The RRRI Act, set forth at 61 Pa.C.S.A §§ 4501, et seq .(“RRRI Act”),
provides for a reduced RRRI minimum sentence for certain eligible offenders,
and states, in relevant part, as follows:
This chapter seeks to create a program that ensures appropriate punishment for persons who commit crimes, encourages inmate participation in evidence

- based programs that reduce the risks of future crime and ensures the openness and accountability of the criminal justice process while ensuring fairness to crime victims.
61 Pa.C.S.A § 4502; see also Commonwealth v. Chester , 101 A.3d 56, 57
(Pa. 2014). 6

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6 Although Broadus plead guilty and received a negotiated sentence in this case, he was still potentially eligible for an RRRI sentence. See Commonwealth v. Robinson , 7 A. 3d 868, 875 (Pa. Super. 2010).J

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“At the time of sentencing, the court shall make a determination
whether the defendant is an eligible offender.” 61 Pa.C.S.A. § 4505(a). If
the defendant is an eligible offender, then the sentencing court is to impose
an RRRI minimum sentence, which is a fraction of the ordinary minimum
sentence. 61 Pa.C.S.A. § 4505(c).
In order to be eligible for an RRRI minimum sentence, the RRRI Act
provides that a defendant must satisfy each of the following requirements.
Specifically, a defendant must establish th at he:
(1) Does not demonstrate a history of present or past violent behavior.
(2) Has not been subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon . . . or was convicted of an offense involving a deadly weapon . . ..
(3) Has not been found guilty of or previously convicted of . . . a crime of violence as defined in 42 Pa.C.S.[A.] § 9714(g)

. . . (4) Has not been found guilty or previously convicted or adjudicated delinquent for violating any of the following

. .

.

* * * *
Drug trafficking as defined in section 4103 (relating to definitions).
(5) Is not awaiting trial or sentencing for additional criminal charges, if a conviction or sentence on the additional charges would cause the defendant to become ineligible under this definition.
61 Pa.C.S.A. § 4503 (emphasis added).J

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The definition of a “crime of violence” includes robbery. See 42
Pa.C.S.A. § 9714(g). The definition of “drug trafficking” includes convictions
for PWID, 35 P.S. § 780

- 113 (a)(30), where the controlled substance in
question is more than ten grams of fentanyl. See 61 Pa.C.S.A. § 4103.
Broadus argues that his 2004 robbery conviction, his 1995 firearm
conviction, and his instant PWID conviction do not disqualify him from
eligi bility for an RRRI minimum sentence. See Broadus’ Brief at 23

- 24.
Broadus asserts that “relying upon decades old convictions contravenes the
spirit and purpose behind the implementation of RRRI minimum sentences,

when an individual has not exhibited viol ent conduct for decades.” Id . at 24

- 25. Therefore, Broadus argues that he is eligible for an RRRI minimum
sentence and should be resentenced accordingly.
In its opinion, the trial court concluded that Broadus’ undisputed prior
conviction for robbery made him ineligible for RRRI because it is a personal
injury crime and therefore violates eligibility criterion of section 4503(3)

. See
Trial Court Opinion, 8/7/23, at 6. Furthermore, the trial court found that

Broadus’ instant conviction for PWID constitute s a drug trafficking offense,
violating the eligibility criteria under section 4503(4)

. Id

. We find Broadus’ arguments unconvincing for several reasons. Broadus’
current conviction for PWID, involving over ninety grams of fentanyl, and his
past conviction for robbery disqualify him from eligibility to receive an RRRI
minimum sentence pursuant to section 4503(3) and (4). See 42 Pa.C.S.A §J

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-

9714(g) (definin g robbery as a “crime of violence”); see also 61 Pa.C.S.A §
4103 (defining “drug trafficking” as including convictions for possession with
intent to deliver more than ten grams of fentanyl). Broadus’ appeal to the
spirit of the law fails in light of the p lain wording of the statute, which does
not include a time limit for past convictions. Furthermore, Broadus does not
dispute that his current conviction for PWID, standing alone, makes him
ineligible for RRRI independently of his past conviction for a cri me of violence.
Accordingly, as Broadus was not RRRI eligible, his illegal sentencing

claim merits no relief.
Judgment of sentence affirmed.

DATE: 06/14/2024