Convicted of Insurance Fraud Still Entitled to a Legal Sentence

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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 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.

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.

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).

At no point in Risoldi’s initial sentencing or resentencing did the court state whether Risoldi is eligible to participate in a reentry plan.

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.

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Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected].

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