Pennsylvania Requires Court to Announce a Convicted Defendant’s Recidivism Risk Reduction Incentive

Convicted of Insurance Fraud Still Entitled to a Legal Sentence

Claire A. Risoldi, in a second try appealed from the Judgment of Sentence, entered after remand for resentencing on the restitution portion of her sentence. Risoldi challenged the legality of her sentence. In Commonwealth Of Pennsylvania v. Claire A. Risoldi, 2022 PA Super 94, No. 1382 EDA 2021, J-A07001-22, Superior Court of Pennsylvania (May 24, 2022) Risoldi’s second appeal requires a finding from the trial court of whether she was entitled to a finding of a recidivism risk reduction incentive (RRRI) finding.

FACTS

On February 5, 2019, a jury convicted Risoldi of various offenses related to her participation in an insurance fraud scheme. On May 17, 2019, the court sentenced Risoldi to an aggregate term of 11½ to 23 months’ incarceration and over $10 million in restitution. On review, this Court vacated the restitution portion of Risoldi’s sentence, remanded for resentencing solely on that issue, and affirmed all other aspects of Risoldi’s sentence. [Commonwealth v. Risoldi, 238 A.3d 434, 465 (Pa. Super. 2020)] The Pennsylvania Supreme Court denied allowance of a further appeal [Commonwealth v. Risoldi, 244 A.3d 1230 (Pa. 2021)].

On June 25, 2021, the court resentenced Risoldi only on the restitution portion of her sentence. At no point in Risoldi’s initial sentencing or resentencing did the court state whether Risoldi is eligible to participate in a reentry plan. Risoldi timely filed a Notice of Appeal and both she and the trial court complied with Pa.R.A.P. 1925.

Risoldi argued only that the sentencing court imposed an illegal sentence on May 17, 2019, and reimposed an illegal sentence on June 25, 2021, because it did not determine her reentry plan eligibility on the record as required by the Sentencing Code.

The court reviewed the implications of a sentencing court’s failure to state on the record if a defendant is eligible for RRRI minimum sentence under a different subsection of the same statute which states, in relevant part, that “[t]he court shall determine if the defendant is eligible for a recidivism risk reduction incentive minimum sentence[.]” 42 Pa.C.S. § 9756(b.1) (emphasis added).

ANALYSIS

The Appellate Court concluded that the legislature’s use of the term “shall” in the statute a sentencing court’s failure to determine on the record if a defendant is RRRI eligible results in the imposition of an illegal sentence. The legislature’s use of the term “shall” confers on the sentencing court the requirement that it determine a defendant’s RRRI eligibility at sentencing, and failure to do so results in the imposition of an illegal sentence.

In the instant case, the trial court did not state on the record at sentencing if Risoldi is eligible to participate in a reentry plan. That aspect of Risoldi’s sentence is, therefore, illegal and subject to correction. The appellate court remanded solely for the sentencing court to determine Risoldi’s eligibility to participate in a reentry plan pursuant to 42 Pa.C.S. § 9756(b)(3).

ZALMA OPINION

It amazes me how many times a person convicted of insurance fraud is able to appeal the sentence imposed. In this case the trial court failed to do what it was required to do and the appellate court sent it back for a re-sentence regarding RRRI. Hopefully the trial court will find she is not eligible.


(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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