J-S66010-15

*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LAMAR THOMPKINS, Appellant No. 1857 WDA 2014

Appeal from the Judgment of Sentence of August 19, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014292-2013

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED NOVEMBER 19, 2015 Appellant, Lamar Thompkins, appeals from the judgm ent of sentence entered on August 19, 2014 following his guilty ple as to carrying a firearm without a license, persons not to possess a firearm , possession of marijuana, driving while operating license is suspended or rev oked, failing to drive on the right side of the road, improper stop, and requ ired financial responsibility. 1 Upon review, we vacate Appellant’s judgment of se ntence and remand for additional proceedings. We briefly summarize the facts and procedural hist ory of this case as follows. On June 3, 2014, Appellant pled guilty to the aforementioned

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1 18 Pa.C.S.A. § 6105(a), 18 Pa.C.S.A. § 6106(a), 35 P.S. §780-113(a)(31), 75 Pa.C.S.A. § 1543(a), 75 Pa.C.S.A. § 3301(a), 75 Pa.C.S.A. § 3351, and 75 Pa.C.S.A. § 1786(f), respectively.J-S66010-15

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charges. On August 19, 2014, the trial court senten ced Appellant to an aggregate term of five to 10 years of imprisonment. Appellant filed a permissive nunc pro tunc post-sentence motion that the trial court denied o n October 16, 2014. This timely appeal resulted. 2 On appeal, Appellant presents the following issues for our review:

I. Whether the trial court imposed an illegal sentence when it failed to determine, at the time of sentenc ing, whether [Appellant] is an eligible offender under t he Recidivism Risk Reduction Incentive [(RRRI)] Act, thereby violating 61 Pa.C.S.A. § 4505(a)?

II. Whether the trial court abused its sentencing discretion when it failed to consider relevant and required sentencing criteria, including the charact er, personal history, and rehabilitative needs of [Appellant], thereby violating 42 Pa.C.S.A. § 9721( b)? Appellant’s Brief at 6. In his first issue presented, Appellant avers:

[Appellant’s] sentence is illegal. In Pennsylvania , the trial court is statutorily required to determine, at the time of sentencing, whether the defendant is an eligible of fender under the RRRI Act. In the instant case, however, the trial court failed to make that mandatory determination. When no statutory authorization exists for a particular sentence, it is illegal, and an illegal sentence cannot be allow ed to stand. Accordingly, [Appellant’s] sentence must be

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2 Appellant filed a notice of appeal on November 12 , 2014. On November 21, 2014, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P . 1925(b). Appellant complied timely. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on May 20, 2015.J-S66010-15

- 3 - vacated, and the matter must be remanded for a new sentencing hearing. Id. at 17. The Commonwealth concedes the issue, stati ng it “is constrained to agree with Appellant that his case should be rem anded for resentencing.”

Commonwealth’s Brief at 7. We agree. Our decision in Commonwealth v. Robinson , 7 A.3d 868 (Pa. Super. 2010) is controlling. In Robinson , this Court examined the following language of the RRRI Act:

(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 recid ivism risk reduction incentive). If the defendant is elig ible, 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 previ ously sentenced to two or more recidivism risk reduction incentive minimum sentences, the court shall have the discret ion to impose a sentence with no recidivism risk reduction incentive minimum. 42 Pa.C.S.A. § 9756(b.1) (emphasis added). The Robinson Court determined that because the legislature implemented the term “shall,” it statutorily mandated trial courts to determine whet her a defendant meets the RRRI eligibility requirements. If the trial co urt determines a defendant meets those requirements, it must impose a RRRI minimum. “Accordingly, where the trial court fails to make a statutorily r equired determination regarding a defendant's eligibility for an RRRI min imum sentence as required, the sentence is illegal.” Robinson at 871.J-S66010-15

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Here, the trial court admits, “it did not make a s pecific finding” regarding Appellant’s RRRI eligibility. Trial Cour t Opinion, 5/20/2015, at 3. However, the trial court determined that Appellant’ s sentence was legal because “it was clear he was not eligible for a red uced sentence.” Id. More specifically, “[a]t the sentencing hearing, [the tr ial court] noted [Appellant’s] extensive criminal history and offenses including a ggravated assault, drug and gun charges, criminal mischief, etc., all of wh ich disqualified him from eligibility [under] the RRRI [Act]. Id. at 2-3.

The fact remains that the trial court is statutori ly mandated to make a determination regarding RRRI Act eligibility and it did not. Accordingly, we are constrained to vacate Appellant’s judgment of s entence and remand this matter for a determination of whether Appellant is RRRI eligible pursuant to 61 Pa.C.S.A. § 4503. Appellant’s second issue challenges the discretion ary aspects of his sentence. Appellant’s Brief at 22-33. However, ha ving already determined Appellant is entitled to relief because his sentenc e is illegal, this issue is

moot. Judgment of sentence vacated. Case remanded for f urther proceedings. Jurisdiction relinquished.

Judgment Entered.J-S66010-15

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Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/2015