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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 3½ 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 pre-

sentence 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 3½ 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 post-

sentence 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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