J-S68035-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
JOHN L. BOWES,                            :
                                          :
                  Appellant               :   No. 356 MDA 2017

          Appeal from the Judgment of Sentence August 21, 2015,
             in the Court of Common Pleas of Centre County,
           Criminal Division, at No(s): CP-14-CR-0001121-2014

BEFORE:        LAZARUS, DUBOW, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                FILED NOVEMBER 09, 2017

     John L. Bowes (Appellant) appeals nunc pro tunc from the judgment of

sentence imposed after entering into a negotiated guilty plea to twelve drug-

related charges. We affirm.

     The charges in this matter arose from Appellant’s selling controlled

substances to a confidential informant.   On May 19, 2015, Appellant pled

guilty to all charges pursuant to a negotiated guilty plea.   On August 21,

2015, the trial court sentenced Appellant, consistent with the negotiated

plea agreement, to an aggregate term of eight to 16 years of incarceration.

     The trial court then asked whether Appellant is “eligible for triple RI

[(RRRI)].”1 N.T., 8/21/2015, at 4. The trial court briefly reviewed the pre-



1 “RRRI is a sentencing program that allows qualified, non-violent offenders
to become eligible for parole before they have completed their sentence of
incarceration if they complete requisite classes and tasks.” Commonwealth

*Retired Senior Judge assigned to the Superior Court.
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sentence investigation (PSI) report and noticed that there was “a simple

assault” conviction. Id. Thus, the trial court concluded that Appellant was

“ineligible for [RRRI].” Id. Appellant filed neither post-sentence motions nor

a timely direct appeal, but did file a timely petition pursuant to the Post

Conviction Relief Act,2 which resulted in the reinstatement of his right to file

a direct appeal nunc pro tunc.

        Appellant then filed the instant appeal.3     The trial court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925, and Appellant complied.       The trial court then

filed an opinion pursuant to Pa.R.A.P. 1925(a).

        On appeal, Appellant presents one question for our review: “Whether

the trial court imposed an illegal sentence when it failed to determine, at the

time of sentencing, whether Appellant is an eligible offender under the

[RRRI] Act, thereby violating 61 Pa.C.S. § 4505(a)[.]” Appellant’s Brief at 4.

        “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



v. Hanna, 124 A.3d 757, 758 (Pa. Super. 2015). See 61 Pa.C.S. §§ 4501-
4512.

2   42 Pa.C.S. §§ 9541-9546.

3Appellant filed his notice of appeal more than 30 days after the entry of the
order granting him leave to appeal nunc pro tunc. However, because that
order did not specify that Appellant had 30 days to file an appeal, we will not
quash the appeal as untimely filed. See Commonwealth v. Wright, 846
A.2d 730 (Pa. Super. 2004).

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(Pa. Super. 2014). “It is legal error to fail to impose a RRRI minimum on an

eligible offender.” Id. Thus, we review Appellant’s issue as “a question of

law, [and] 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).

      An eligible offender is defined by the RRRI Act, in relevant part, as

follows:

      A defendant or inmate convicted of a criminal offense who will be
      committed to the custody of the department and who meets all
      of the following eligibility requirements:

            (1) Does not demonstrate a history of present or
            past violent behavior.

                                      ***

            (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 of
            November 24, 1998 (P. L. 882, No. 111), 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….

                                      ***

            (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).



                                     -3-
J-S68035-17


61 Pa.C.S. § 4503.

      According to the PSI, Appellant was convicted of simple assault as a

second-degree misdemeanor on February 10, 2005, and he was sentenced

to six to twelve months of incarceration.    Based on the plain language of

section 4503(3), Appellant is not an eligible offender because he has been

convicted previously of simple assault as a second-degree misdemeanor,

which is a personal injury crime as defined by the Crime Victims Act.4

Accordingly, we conclude the trial court determined correctly at sentencing

that Appellant was not RRRI eligible,5 and therefore Appellant’s sentence is

not illegal.




4 Section 4503(3) exempts simple assault where it is a third-degree
misdemeanor, which occurs when it is committed “in a fight or scuffle
entered into by mutual consent.” 18 Pa.C.S. § 2701(b)(1).

5 In its opinion, the trial court concludes that Appellant was RRRI ineligible
pursuant to 61 Pa.C.S. § 4503(6), which relates to ineligibility for defendants
convicted of drug-related offenses. Trial Court Opinion, 4/7/2017, at 2-3.
Appellant argues that this conclusion is in error. Appellant’s Brief at 11-15.
However, we need not make that determination because the record is clear
that Appellant was not eligible pursuant to section 4503(3). It is well-settled
that this Court may affirm a trial court order on any basis apparent from the
record. See Alco Parking Corp. v. Pub. Parking Auth. of Pittsburgh,
706 A.2d 343, 349 (Pa. Super. 1998) (“The order of a trial court may be
affirmed on appeal if it is correct on any legal ground or theory, regardless
of the reason or theory adopted by the trial court.”).

                                     -4-
J-S68035-17


Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2017




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