J-S27020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HOLLY ANN WOLF

                            Appellant                 No. 2342 EDA 2014


        Appeal from the Judgments of Sentence entered August 1, 2014
               In the Court of Common Pleas of Chester County
                           Criminal Division at Nos:
                           CP-15-CR-0001224-2014
                           CP-15-CR-0001357-2014
                           CP-15-CR-0001850-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 15, 2015

        Appellant, Holly Ann Wolf, appeals from the judgments of sentence

entered for her convictions of burglary and other crimes. She challenges the

trial court’s refusal to make her eligible for a reduced minimum sentence

under the Recidivism Risk Reduction Incentive (RRRI) Act.1 We hold that the

trial court correctly refused to make Appellant RRRI eligible, based on her

two convictions of first-degree burglary, which constitute a history of violent

behavior.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    61 Pa.C.S.A. §§ 4501-12.
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        On August 1, 2014, Appellant entered guilty pleas in the three cases

subject of this appeal, and admitted to violating her probation in a fourth

case.    Notably, she pled guilty to two counts of first-degree burglary.           18

Pa.C.S.A. § 3502(a)(1) and (2).2               Under the negotiated plea, Appellant

received an aggregate sentence of four to ten years in prison followed by

five years of probation. Appellant requested to be made RRRI eligible, under

which her minimum sentence of incarceration would instead have been 40

months. The Commonwealth objected, arguing that Appellant’s first-degree

burglary convictions rendered her ineligible for RRRI. The trial court agreed,

and denied Appellant’s request. This appeal followed.

        The issue on appeal is whether Appellant’s two convictions of first-

degree burglary constitute a “history of present or past violent behavior”

making her ineligible for RRRI. See Appellant’s Brief at 4. “It is legal error

to fail to impose a RRRI minimum [sentence] on an eligible offender.”

Commonwealth           v.   Tobin,    89   A.3d     663,   670   (Pa.   Super.   2014).

Sentencing legality issues cannot be waived and may be raised by this Court




____________________________________________


2
  Burglary is either a first- or second-degree felony. First-degree burglary is
any burglary committed where at least one of the following is present (i) the
burglarized structure is adapted for overnight accommodation; (ii) a person
is present inside the burglarized structure at the time of the burglary; or (iii)
the burglar intends to commit theft of a controlled substance or designer
drug. 18 Pa.C.S.A. § 3502(a) and (c).



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sua sponte.3        Commonwealth v. Robinson, 7 A.3d 868, 870-71 (Pa.

Super.    2010).      The     legality         of    a    sentence        is    a        question    of   law.

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013). Issues

of statutory construction are also questions of law. Commonwealth ex rel.

District Attorney of Blair County (In re Buchanan), 880 A.2d 568, 570

(Pa. 2005). Because Appellant raises only questions of law, our standard of

review    is   de    novo,    and        our        scope   of   review             is    plenary.        See

Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014).

       Under the RRRI Act, the sentencing judge must determine whether the

defendant is an “eligible offender.”                      61 Pa.C.S.A. § 4505(a); see 42

Pa.C.S.A.      § 9756(b.1).         If    the        defendant       is        RRRI-eligible,        or   the

Commonwealth waives eligibility, the defendant receives an RRRI-minimum

sentence, which is 3/4 of the minimum sentence if the minimum sentence is

three years or less, or 5/6 of the minimum sentence if (as here) the

minimum sentence is greater than three years. 61 Pa.C.S.A. § 4505(a)-(c).

       Among other requirements not relevant in this case, the RRRI Act

defines eligible offender as an offender who “(1) [d]oes not demonstrate a

history of present or past violent behavior.” Id. § 4503. In Chester, our

Supreme Court held that a conviction of first-degree burglary is “violent

____________________________________________


3
  Curiously, the Commonwealth claims Appellant waived her argument.
Robinson, 7 A.3d at 870-71 (holding RRRI-eligibility claims are not subject
to waiver), originated in the same county as this case.



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behavior” as a matter of law. Chester, 101 A.3d at 63-65 (explaining that

common-law burglary was, and first-degree burglary is, viewed as a violent

crime). It further held that “multiple first-degree burglary convictions are

more than sufficient to form a ‘history’ of ‘violent behavior’ under [61

Pa.C.S.A. §] 4503(1).” Id. at 65 (emphasis in original).

      Chester is legally indistinguishable from this case. Therefore, we hold

that Appellant’s two first-degree burglary convictions constitute a “history”

of “violent behavior.”   In other words, § 4503(1) unambiguously excludes

Appellant from the definition of “eligible offender.” In arguing that the word

“history” contemplates a temporal lapse between multiple events of violent

behavior, Appellant would have us create ambiguity where there is none. In

addition, she fails to distinguish Chester, which held that, at a minimum,

multiple prior events constitute a “history.”    Chester, 101 A.3d at 65.

Appellant’s two convictions of first-degree burglary constitute multiple

events and, therefore, a history.

      Appellant contends further that we should interpret the RRRI Act

broadly in her favor to advance the RRRI Act’s “main objective”—prevention

of recidivism. Appellant’s Brief at 12. This Court, however, must apply the

statute as written, and we cannot disregard unambiguous language in favor

of pursuing policy objectives.      See 1 Pa.C.S.A. § 1921(b); see also

Commonwealth v. Cahill, 95 A.3d 298, 303 (Pa. Super. 2013) (“We may

not arrogate to ourselves some magical power judicially to ‘improve’ the

work done by the legislature.”). Also, because § 4503(1) is unambiguous,

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we decline Appellant’s invitation to apply the rule of lenity, id. § 1928(b)(1).

The rule of lenity does not supersede the “more general principle that the

words of a statute must be construed according to their common and

approved usage.”    Commonwealth v. Wilgus, 40 A.3d 1201, 1210 (Pa.

2012) (quotation omitted); accord Salinas v. United States, 522 U.S. 52,

66 (1997) (“The rule [of lenity] does not apply when a statute is

unambiguous or when invoked to engraft an illogical requirement to its

text.”).

      Appellant’s two convictions of first-degree burglary constitute a

“history” of “violent behavior,” and hence, the trial court did not err in

finding her ineligible for RRRI. For these reasons, we affirm the judgments

of sentence.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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