J-S30014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIK PATRICK FULK,

                            Appellant                No. 2037 MDA 2016


              Appeal from the Judgment of Sentence July 18, 2016
                In the Court of Common Pleas of Lebanon County
    Criminal Division at No(s): CP-38-CR-0000414-2016, CP-38-CR-0000416-
                                      2016


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 18, 2017

        Appellant, Erik Patrick Fulk, appeals from the judgment of sentence

imposed on July 18, 2016, in the Court of Common Pleas of Lebanon County.

We affirm.

        At criminal docket number 414 of 2016 in the Court of Common Pleas

of Lebanon County, Appellant was charged with retail theft and theft by

deception.1    Information, 3/15/16, at 1.     At docket number 416 of 2016,

Appellant was charged with three counts of possession with intent to deliver

(“PWID”), one count of conspiracy, and one count of criminal use of



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1
    18 Pa.C.S. § 3929(A)(1) and 18 Pa.C.S. § 3922(A)(1).
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communication facility.2       Information, 3/16/16, at 1.   Appellant entered a

guilty plea at both docket numbers and was sentenced on both on July 18,

2016. N.T., 7/18/16, at 22-26. At docket number 414 of 2016, Appellant

was sentenced to an aggregate of nine months to two years imprisonment in

the Lebanon County Correctional Facility, restitution, and was prohibited

from entering Wal-Mart. N.T., 7/18/16, at 4; Sentencing Order, 7/21/16, at

1-3. At docket number 416 of 2016, he was sentenced at count III to an

aggregate sentence of forty-five months to ten years incarceration in a state

correctional institution, with sentences imposed on counts I, II, IV, and V

being served concurrently with the sentence imposed on count III.          N.T.,

7/18/16, at 4; Sentencing Order, 7/21/16, at 1-3.

        Appellant filed a consolidated post-sentence motion on July 26, 2016,

seeking modification of his sentences based on his assertion that the trial

court erred when it found him ineligible for a sentence under the Recidivism

Risk Reduction Incentive Act3 (“RRRI”). Consolidated Post Sentence Motion,

7/26/16, at 1-3.        The trial court denied this motion by order entered

December 1, 2016.         Appellant timely filed his notice of appeal from both




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2
  35 P.S. § 780-113(A)(30), 18 Pa.C.S. § 903(C), and 18 Pa.C.S. § 7512(A),
respectively.
3
    61 Pa.C.S. §§ 4501, et seq.



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docket numbers on December 12, 2016.4              The trial court and Appellant

complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       A.     Did the trial court err in sentencing Appellant when they
       [sic] failed to make him eligible for a recidivism risk reduction
       incentive (“RRRI”) sentence despite Appellant being an eligible
       offender for an RRRI sentence?

       B.   Should Appellant be resentenced by the trial court to an
       RRRI sentence?

Appellant’s Brief at 4 (full capitalization omitted).

       Appellant argues that the trial court erred in failing to find him eligible

for an RRRI sentence.        Appellant’s Brief at 8.    Appellant contends that he

should have been deemed eligible for an RRRI sentence due to his not

having any disqualifying offenses. Id.

              A challenge to a court’s failure to impose an RRRI sentence
       implicates the legality of the sentence. Commonwealth v.
       Tobin, 89 A.3d 663, 670 (Pa. Super. 2014). “It is legal error to
       fail to impose a[n] RRRI minimum on an eligible offender.” Id.
       Thus, as “statutory interpretation implicates a question of law,
       our scope of review is plenary and our standard of review is de
       novo.” Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa.
       Super. 2012) (citation omitted).



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4
   Appellant’s post-sentence motion was denied by operation of law on
November 23, 2016, prior to the trial court’s entry of its order denying the
motion on December 1, 2016. Pa.R.Crim.P. 720(B)(3)(a). Thus, the trial
court’s jurisdiction ended on November 23, 2016. Appellant’s appeal was
timely, however, as it was filed within thirty days of November 23, 2016.
Commonwealth v. Khalil, 806 A.2d 415, 420–421 (Pa. Super. 2002).



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Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016),

appeal denied, 215 WAL 2016 (Pa. October 19, 2016).

      The RRRI statute, which provides for a reduced RRRI minimum

sentence for certain eligible offenders, 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. § 4502.      “At the time of sentencing, the court shall make a

determination whether the defendant is an eligible offender.” 61 Pa.C.S. §

4505(a).

      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 that 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 as
      defined under law or the sentencing guidelines promulgated by
      the Pennsylvania Commission on Sentencing or the attorney for
      the Commonwealth has not demonstrated that the defendant
      has been found guilty of or was convicted of an offense involving
      a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to
      firearms and other dangerous articles) or the equivalent offense
      under the laws of the United States or one of its territories or
      possessions, another state, the District of Columbia, the
      Commonwealth of Puerto Rico or a foreign nation.

      (3) Has not been found guilty of or previously convicted of or
      adjudicated delinquent for or an attempt or conspiracy to commit
      a personal injury crime as defined under section 103 of the act

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     of November 24, 1998 (P.L. 882, No. 111), [18 P.S. § 11.103]
     known as the Crime Victims Act, except for an offense under 18
     Pa.C.S. § 2701 (relating to simple assault) when the offense is a
     misdemeanor of the third degree, or an equivalent offense under
     the laws of the United States or one of its territories or
     possessions, another state, the District of Columbia, the
     Commonwealth of Puerto Rico or a foreign nation.

     (4) Has not been found guilty or previously convicted or
     adjudicated delinquent for violating any of the following
     provisions or an equivalent offense under the laws of the United
     States or one of its territories or possessions, another state, the
     District of Columbia, the Commonwealth of Puerto Rico or a
     foreign nation:

           18 Pa.C.S. § 4302(a) (relating to incest).

           18 Pa.C.S. § 5901 (relating to open lewdness).

           18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
           pornography).

           Received a criminal sentence pursuant to 42 Pa.C.S.
           § 9712.1 (relating to sentences for certain drug
           offenses committed with firearms).

           Any offense for which registration is required under
           42 Pa.C.S. Ch. 97 Subch. H (relating to registration
           of sexual offenders).

     (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.

     (6) Has not been found guilty or previously convicted of violating
     section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L.
     233, No. 64), known as The Controlled Substance, Drug, Device
     and Cosmetic Act, where the sentence was imposed pursuant to
     18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or
     (8)(iii) (relating to drug trafficking sentencing and penalties).

61 Pa.C.S. § 4503 (footnote omitted).


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      Specifically, Appellant maintains that although his criminal history

includes a burglary graded as a first-degree felony in November of 2005, this

conviction should not make him RRRI ineligible because there was no one at

home at the time of the burglary, and therefore, this is not a violent crime

pursuant to 61 Pa.C.S. § 4503(1).      Appellant’s Brief at 9-11.    Appellant

further asserts that 42 Pa.C.S. § 9714(g) of the Sentencing Code, which

defines “crimes of violence,” includes only “burglary as defined in 18 Pa.C.S.

§ 3502(a)(1).” Id. at 10-11. Section 3502(a)(1) requires that a person be

present at the time of the burglary. Id. at 10-11. Thus, Appellant argues

that his first-degree burglary cannot be considered a crime of violence

because there was no one home at the time he committed the burglary. Id.

at 11.   Appellant further contends that the burglary was not a personal-

injury crime as contemplated by the eligible offender statute.      Id. at 10.

Therefore, Appellant argues that he is eligible for an RRRI sentence, and

should be resentenced accordingly. Id. at 11.

      We find Appellant’s argument unconvincing for several reasons.       As

our Supreme Court noted regarding the first provision of the eligible offender

provision:   “[T]he RRRI Act does not define what constitutes a history of

present or past violent behavior.” Commonwealth v. Chester, 101 A.3d

56, 58 (Pa. 2014) (internal quotation marks omitted). In interpreting this

section, our Supreme Court stated:

      We find that Section 4503’s structure—namely, including specific
      classes of offenses in Section 4503(2)-(6) while also including

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      general language in Section 4503(1) concerning behavior—
      reflects an express choice by the legislature not to write an
      exclusive list of disqualifying offenses, but, instead, to include
      Section 4503(1) as a broad, “catchall” provision designed to
      encompass an array of behavior not explicitly provided for in
      Section 4503’s other provisions.

Id. at 63. Accordingly, the Court in Chester proceeded to consider whether

first-degree   burglary      conviction    constituted   “violent   behavior”   as

contemplated by Section 4503(1). Id. at 64.

      The appellant in Chester argued that although an individual was

present at the time of his unlawful entry, he did not engage in violent

behavior toward that individual, and therefore, his conviction of first-degree

burglary did not constitute “violent behavior” for purposes of section

4503(1). Chester, 101 A.3d at 64. In addressing the appellant’s claim, the

Court referenced the history within our case law establishing that “burglary

is a crime of violence as a matter of law, signifying that first-degree burglary

necessarily constitutes violent behavior in all contexts, including under

Section 4503(1).”    Id. (internal quotation marks omitted).        The Supreme

Court was unpersuaded by the appellant’s argument that it was not a violent

crime because he did not employ violence during the burglary, explaining

that despite any conflict, the first-degree burglary remained a violent crime

for the following reasons:

      [W]hile [the a]ppellant contends his first-degree burglary
      conviction was not “violent behavior” because he did not employ
      violence during the burglary, it is an offender’s non-privileged
      entry, which “invites dangerous resistance” and, thus, the
      possibility of the use of deadly force against either the offender

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      or the victim, that renders burglary a violent crime, not the
      behavior that is actually exhibited during the burglary. Thus, the
      fact that [the a]ppellant did not actually engage in any violent
      acts while committing first-degree burglary does not render that
      crime “non-violent.”      Similarly, we decline to accept the
      invitation of amicus to depart from our well established case
      law—finding burglaries to be violent by their very nature—to
      instead engage in a case-by-case evaluation into whether a
      particular burglary conviction constitutes “violent behavior”
      under Section 4503(1). Thus, we believe a conviction for first-
      degree burglary, a crime of violence, constitutes violent behavior
      for purposes of Section 4503(1).

Id. at 65.

      Similarly, in the case sub judice, we are unpersuaded by Appellant’s

argument.    It is the offender’s non-privileged entry into a dwelling “which

invites dangerous resistance and, thus, the possibility of the use of deadly

force against either the offender or the victim, that renders burglary a

violent crime.” Chester, 101 A.3d at 65 (internal quotation marks omitted).

Thus, the fact that no one was at home at the time of the unlawful entry

does not render the crime non-violent.      It was Appellant’s non-privileged

entry into a structure adapted for overnight accommodation that renders

this conviction a first-degree burglary, and pursuant to the holding in

Chester, a violent crime.      See id. at 64 (“the Crimes Code treats first-

degree burglary distinctly from second-degree burglary, as first-degree

burglary contemplates the potential for confrontation, whereas second-

degree burglary does not.”).

      We also find unpersuasive Appellant’s argument that because his

conviction of first-degree burglary under the previous statute would not

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constitute first-degree burglary under the current 18 Pa.C.S. § 3502(a)(1), it

does not constitute a crime of violence.     The Chester Court also had the

opportunity to consider the appellant’s conviction under the previous

burglary statute and compare it to the current version.       As the Supreme

Court noted:

      At the time [the a]ppellant was charged, the burglary statute
      read, in relevant part, as follows:

            (a) Offense defined.—A person is guilty of burglary
            if he enters a building or occupied structure, or
            separately secured or occupied portion thereof, with
            intent to commit a crime therein, unless the
            premises are at the time open to the public or the
            actor is licensed or privileged to enter.

                                        ***

            (c) Grading.—

            (1) Except as provided in paragraph (2), burglary is
            a felony of the first degree.

            (2) If the building, structure or portion entered is not
            adapted for overnight accommodation and if no
            individual is present at the time of entry, burglary is
            a felony of the second degree.

      18 Pa.C.S.A. § 3502 (1990). This Section was amended in
      2012, and now provides that a defendant commits burglary if,
      with the intent to commit a crime therein, he:

            (1) enters a building or occupied structure, or
            separately secured or occupied portion thereof that
            is adapted for overnight accommodations in which at
            the time of the offense any person is present;

            (2) enters a building or occupied structure, or
            separately secured or occupied portion thereof that


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           is adapted for overnight accommodations in which at
           the time of the offense no person is present;

           (3) enters a building or occupied structure, or
           separately secured or occupied portion thereof that
           is not adapted for overnight accommodations in
           which at the time of the offense any person is
           present; or

           (4) enters a building or occupied structure, or
           separately secured or occupied portion thereof that
           is not adapted for overnight accommodations in
           which at the time of the offense no person is
           present.

     18 Pa.C.S.A. § 3502(a) (2012). The Crimes Code now grades
     paragraphs (1) through (3) as felonies of the first degree, and
     paragraph (4) as a felony of the second degree, id. §
     3502(c)(1)-(2); however, “[i]f the actor’s intent upon entering
     the building, structure or portion under [paragraph (4)] is to
     commit theft of a controlled substance or designer drug,” the
     burglary is graded as a felony of the first degree.       Id. §
     3502(c)(2)(ii).

Chester, 101 A.3d at 58 n.1.

     The Court explained that:

     At the time Appellant was charged, the burglary statute
     distinguished first-degree burglary from second-degree burglary
     based upon whether the building or structure entered was
     adapted for overnight accommodation and whether an individual
     was present at the time of entry. See supra note 1. Only if
     neither of these conditions were true—i.e., that there was no risk
     of confrontation—was the entry a second-degree burglary.
     Thus, in light of Pennsylvania’s long-standing view of burglary as
     a violent crime, as well as the fact that first-degree burglary is
     treated distinctly, and more severely, under Pennsylvania law,
     we have no hesitancy in concluding a conviction for first-degree
     burglary constitutes “violent behavior” under Section 4503(1).

Id. at 64-65.




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       Thus in the case sub judice, at the time Appellant was charged, the

burglary statute identified a burglary of the second degree only in those

situations where the structure entered was not adapted for overnight

accommodation and where there was no individual present. The remaining

burglaries were categorized as first-degree. Because the structure Appellant

unlawfully entered was adapted for overnight accommodation, his crime was

graded a first-degree burglary.5         The fact that no one was present at the

time of unlawful entry does not render it a second-degree burglary.         This

grading is consistent between the prior and current statute.        Accordingly,

Appellant’s conviction constitutes a first-degree burglary under both the

prior and current burglary statutes.6

       Furthermore, we cannot agree with Appellant’s interpretation that a

determination as to what constitutes a “crime of violence” under the RRRI

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5
  Under the statute in effect at the time of Appellant’s first-degree burglary,
a defendant committed a first degree burglary if he illegally entered a
structure that was adapted for overnight accommodation but no individual
was present. Commonwealth v. Rivera, 983 A.2d 767, 770 (Pa. Super.
2009). In other words, for burglary to qualify as a second-degree felony,
the illegal entry must have involved a structure that was not adapted for
overnight accommodation and no one was present. Id.
6
  We note that this statute has been amended multiple times.             The
amendments have consistently defined first-degree burglaries. Although
Appellant’s previous first-degree burglary conviction does not fall under the
current version, 18 Pa.C.S. § 3502(a)(1), it constitutes a first-degree
burglary under current 18 Pa.C.S. § 3502(a)(2).              18 Pa.C.S. §
3502(a)(2),(c).




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statute is limited to those crimes outlined in 42 Pa.C.S. § 9714(g) of the

Sentencing Code. Significantly, the list of offenses set forth in 42 Pa.C.S. §

9714(g) is not incorporated by reference in the “eligible offender” statutory

provision.    Moreover, as discussed above, our Supreme Court in Chester

concluded that a first-degree burglary constituted a violent crime for

purposes of the RRRI statute.          The Court did not limit its holding only to

first-degree burglaries where an individual was present, as outlined in 18

Pa.C.S. § 3502(a)(1).

       In conclusion, Appellant has a criminal history which includes a first-

degree burglary as defined under the previous and current burglary statutes.

Our Supreme Court in Chester held that first-degree burglaries were crimes

of violence for purposes of determining eligibility for an RRRI sentence.

Accordingly, Appellant has demonstrated a history of violent behavior and is

therefore ineligible for an RRRI sentence pursuant to 61 Pa.C.S. § 4503(1).7

Thus, the trial court did not err in concluding that Appellant was ineligible for

an RRRI sentence, and Appellant is not entitled to resentencing.

       Judgment of sentence affirmed.



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7
   We note that there is no evidence supporting the conclusion that
Appellant’s first-degree burglary conviction was a personal injury crime.
Thus, we agree with Appellant’s contention that the first-degree burglary
conviction does not constitute a personal injury crime rendering him RRRI
ineligible pursuant to 61 Pa.C.S. § 4503(3).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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