J-S21022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WALTER STERLING                            :
                                               :
                       Appellant               :   No. 1308 WDA 2017

            Appeal from the Judgment of Sentence August 14, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003814-2016

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 07, 2018

       Walter Sterling (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of multiple counts of burglary, criminal

trespass, conspiracy, theft by unlawful taking or disposition, and criminal

mischief.1 For the reasons that follow, we affirm.

       Appellant’s convictions in this matter stem from multiple residential

burglaries that occurred in Erie County, Pennsylvania between March 7, 2016

and March 28, 2016.         Prior to his trial and following a waiver of counsel

colloquy, Appellant elected to relinquish his appointed trial counsel and

proceed pro se. On June 23, 2017, a jury found Appellant guilty of four counts

of burglary graded as a first-degree felony, four counts of criminal trespass,



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1   18 Pa.C.S.A. §§ 3502(a)(2), 3503(a)(1), 903(a), 3921(a), 3304(a)(2).
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four counts of conspiracy, four counts of theft by unlawful taking or

disposition, and two counts of criminal mischief.

      On August 14, 2017, the trial court sentenced Appellant to an aggregate

term of four to ten years of incarceration followed by twenty years of probation

on the burglary charges. The trial court also imposed four concurrent terms

of ten years of probation on Appellant’s conspiracy charges.        Appellant’s

charges of criminal trespass and theft by unlawful taking or disposition merged

for purposes of sentencing. The trial court imposed no further penalty for

Appellant’s charges of criminal trespass. At sentencing, the trial court noted

that Appellant was not eligible for sentencing in accordance with the

Recidivism Risk Reduction Incentive (RRRI) program.

      On August 23, 2017, Appellant filed a post-sentence motion, which the

trial court denied on August 25, 2017. On September 11, 2017, Appellant

filed a timely notice of appeal.    For his appeal, Appellant requested the

appointment of counsel and the trial court re-appointed trial counsel to

represent him. On September 13, 2017, the trial court ordered Appellant to

file a timely concise statement of errors complained of on appeal pursuant to

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On September

28, 2017, Appellant, now represented by counsel, filed a counseled Rule

1925(b) statement.




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       On October 10, 2017, the trial court appointed appellate counsel to

replace trial counsel for Appellant’s appeal.2 On October 23, 2017, the trial

court filed its Rule 1925(a) opinion in response to Appellant’s Rule 1925(b)

statement.     On October 25, 2017, the trial court transmitted the certified

record to this Court.

       On January 18, 2018, Appellant filed a “Petition to File Supplemental

Concise Statement Nunc Pro Tunc” in which Appellant argued that

extraordinary circumstances existed warranting the filing of a supplemental

Rule 1925(b) statement because the issues raised in Appellant’s Rule 1925(b)

statement are waived. On January 30, 2018, the trial court denied Appellant’s

petition.   The trial court concluded that the arguments contained in the

petition did not demonstrate extraordinary circumstances warranting the filing

of a supplemental Rule 1925(b) statement. Order, 1/30/17, at 3. The court

further explained that appellate counsel filed the petition more than three

months after her appointment, and long after the court issued its Rule 1925(a)

opinion and transmitted the certified record to this Court. Id. at 2-3.

       On appeal, Appellant presents the following issues for review:

       1. Did the trial court abuse its discretion or err when it denied
       Appellant’s request to file a Supplemental Concise Statement
       Nunc Pro Tunc?




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2 The record is unclear as to the reason for trial counsel’s departure from this
case.

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      2. Did the sentencing court commit an error of law, thereby
      imposing an illegal sentence, when it determined that Appellant’s
      prior record precluded his eligibility for a RRRI sentence?

Appellant’s Brief at 9.

      First, Appellant argues that the trial court erred in denying his petition

to file a supplemental Rule 1925(b) statement.         Appellant contends that

extraordinary circumstances exist warranting the allowance of filing a

supplemental Rule 1925(b) statement because the only issues raised in

Appellant’s original 1925(b) statement are waived and the issues he now

seeks to raise are meritorious.

      Generally, under Rule 1925(b), the trial court “shall allow the appellant

at least 21 days” . . . for the filing and service of [a Rule 1925(b)] Statement.”

Pa.R.A.P. 1925(b).        Rule 1925(b) permits the filing of a supplemental

statement in two limited circumstances. First, Rule 1925(b)(2) provides that,

“[u]pon application of the appellant and for good cause shown, the judge may

enlarge the time period initially specified or permit an amended or

supplemental Statement to be filed.”      Pa.R.A.P. 1925(b)(2). Second, Rule

1925(b)(2) also provides, “[i]n extraordinary circumstances, the judge may

allow for the filing of a Statement or amended or supplemental Statement

nunc pro tunc.” Pa.R.A.P. 1925(b)(2). With respect to the nunc pro tunc filing

of a Rule 1925(b) statement, the Note to Rule 1925(b)(2) explains:

      In general, nunc pro tunc relief is allowed only when there has
      been a breakdown in the process constituting extraordinary
      circumstances. See, e.g., In re Canvass of Absentee Ballots
      of Nov. 4, 2003 Gen. Election, [] 843 A.2d 1223, 1234 ([Pa.]

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      2004) (“We have held that fraud or the wrongful or negligent act
      of a court official may be a proper reason for holding that a
      statutory appeal period does not run and that the wrong may be
      corrected by means of a petition filed nunc pro tunc.”) Courts
      have also allowed nunc pro tunc relief when “non-negligent
      circumstances, either as they relate to appellant or his counsel”
      occasion delay. McKeown v. Bailey, 731 A.2d 628, 630 (Pa.
      Super. 1999). However, even when there is a breakdown in the
      process, the appellant must attempt to remedy it within a “very
      short duration” of time. Id.; Amicone v. Rok, 839 A.2d 1109,
      1113 (Pa. Super. 2003) (recognizing a breakdown in process, but
      finding the delay too long to justify nunc pro tunc relief).

Pa.R.A.P.1925(b)(2), note.

      In this case, there are no extraordinary circumstances that would

warrant permitting the filing of a supplemental Rule 1925(b) statement nunc

pro tunc. Appellant at no point has asserted that a breakdown in the process

occurred, nor has he alleged any other circumstance envisioned by the rule or

the explanatory note.     Additionally, our review of the record reveals the

complete absence of extraordinary circumstances. Although Appellant asserts

that extraordinary circumstances exist in this case because the issues raised

in his original Rule 1925(b) are waived and the issues he seeks to now raise

are meritorious, there is no indication, either in Rule 1925 itself or in any other

authority, that such a scenario constitutes extraordinary circumstances.

Moreover, Appellant waited over three months after the trial court issued its

Rule 1925(b) opinion and transmitted the record to this Court to request

permission to file a supplemental Rule 1925(b) statement.           Thus, even if

extraordinary circumstances did exist in this case, Appellant simply waited too

long to attempt to supplement his Rule 1925(b) statement. See Pa.R.A.P.

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1925(b)(2), note. Accordingly, Appellant’s first issue does not entitle him to

relief.

          Second, Appellant argues that the trial court imposed an illegal

sentence.       Specifically, Appellant asserts that the trial court erred in

determining that he was ineligible to be sentenced in accordance with the

Recidivism Risk Reduction Incentive (RRRI) program, 61 Pa.C.S.A. §§ 4501-

4512.

          The question of whether a defendant is RRRI eligible “presents a

question of statutory construction and implicates the legality of the sentence

imposed.” Commonwealth v. Quiles, 166 A.3d 387, 392 (Pa. Super. 2017)

(quotations and citation omitted). “Therefore, our standard of review is de

novo and the scope of our review is plenary.”      Id. (quotation and citation

omitted). Additionally, although Appellant failed to preserve this issue in his

Rule 1925(b) statement, “[c]hallenges to the legality of the sentence are not

waivable.”      Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super.

2006).

          The RRRI program “permits offenders who exhibit good behavior and

who complete rehabilitative programs in prison to be eligible for reduced

sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

Section 4503 defines an “eligible offender,” in relevant part, as follows:

          “Eligible offender.” 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:

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

61 Pa.C.S.A. § 4503.

       Appellant concedes that a conviction of burglary graded as a first-degree

felony constitutes “violent behavior” for purposes of determining RRRI

eligibility.   See Commonwealth v. Chester, 101 A.3d 56, 57 (Pa. 2014)

(holding that “that first-degree burglary, which we have consistently viewed

as a violent crime in this Commonwealth, is ‘violent behavior’ as contemplated

by the RRRI Act”). Nevertheless, Appellant contends that he is an “eligible

offender” for the RRRI program because he has not demonstrated “a history

of present or past violent behavior.”3           Appellant argues that his four

convictions of burglary in this case do not disqualify him from RRRI eligibility.

In so arguing, Appellant relies on our Supreme Court’s recent decision in

Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017).

       In Cullen–Doyle, the defendant pled guilty to, inter alia, one count of

burglary graded as a first-degree felony.         Id. at 1240.   The defendant

requested a RRRI sentence, which the trial court denied. On appeal, this Court

affirmed, concluding that the defendant “was ineligible for the RRRI program

based solely on his present conviction for [burglary,]” which constituted a



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3  Appellant raises several arguments in support of his claim that he is RRRI
eligible. Because we find this argument dispositive, we decline to address
his remaining arguments.

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history of present or past violent behavior. Id. at 1241. Thus, on appeal to

the Supreme Court, the issue in Cullen-Doyle was whether a single

conviction for burglary demonstrates “a history of present or past violent

behavior” for the purposes of Section 4503. Id. at 1240.

      The Supreme Court vacated this Court’s order and held that a “single,

present conviction for a violent crime does not constitute a history of violent

behavior.” Id. at 1244. The Court explained that the RRRI program’s stated

purpose was to encourage eligible offenders to participate in the program in

order to reduce the likelihood of recidivism.       Id. at 1242.     The Court

acknowledged a “commonly accepted corollary ... that first-time offenders are

usually more amenable to reform than inmates who have persisted in criminal

conduct.” Id. (footnote omitted). Thus, the Court reasoned that the General

Assembly “sought to offer greater reform opportunities for first-time offenders

than repeat offenders.” Id. at 1243. The Court explained that if it were to

broadly construe Section 4503 to render a defendant ineligible for the RRRI

program based on “a single instance of ‘violence,’” it would impose “eligibility

requirements that are so stringent that a large number of individuals who

could potentially reform through participation in RRRI programming will be

prevented from participating.” Id.

      Cullen-Doyle, however, is readily distinguishable from the instant

matter for two reasons. First, in this case, unlike Cullen-Doyle, a jury found

Appellant guilty of four counts of burglary committed over a period of


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approximately three weeks, whereas the defendant in Cullen-Doyle pled

guilty to one charge of burglary. Second, Appellant acknowledges that his

Presentence Investigation Report indicates that he also has a 2016 Ohio

conviction of resisting arrest. This Court has held that the crime of resisting

arrest constitutes “violent behavior” for purposes of determining RRRI

eligibility. Commonwealth v. Finnecy, 135 A.3d 1028, 1037 (Pa. Super.

2016).   Notably, although Appellant acknowledged his prior 2016 Ohio

conviction for resisting arrest in his appellate brief and that it constitutes a

conviction of “violent behavior,” Appellant offers no argument that the

conviction does not disqualify him from RRRI eligibility. Therefore, the record

established that Appellant has a “history of present or past violent behavior.”

Accordingly, we conclude that the trial court did not err in determining that

Appellant was disqualified from eligibility for an RRRI sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2018




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