J-S05022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES PAUL FINNECY                         :
                                               :
                       Appellant               :   No. 998 WDA 2018

               Appeal from the PCRA Order Entered June 19, 2018
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000498-2013,
                            CP-61-CR-0000688-2009


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 17, 2019

        Appellant James Paul Finnecy appeals pro se from the order denying his

first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant claims that the PCRA court committed an error of law when

it determined that he is ineligible for the Recidivism Risk Reduction Incentive1

(RRRI) program. We affirm.

        The relevant facts of this case were summarized as follows:

        Appellant was initially sentenced on January 22, 2010, to a
        maximum of two years’ incarceration for counts of unauthorized
        use of a motor vehicle and theft by unlawful taking, as well as two
        consecutive terms of 18 months’ probation for escape, resisting

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*   Retired Senior Judge assigned to the Superior Court.

1   61 Pa.C.S. §§ 4501-4512.
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        arrest, [10 counts of] forgery, and identity theft.[2]       Upon
        concluding his term of incarceration on October 26, 2011,
        Appellant was placed on Venango County Probation. He was
        assigned to an officer on October 30, 2011, with a maximum date
        of supervision of October 26, 2014. The next several months saw
        multiple probation violations and failed attempts at treatment for
        Appellant’s recurring drug use, all supervised by the trial court.
        In response to his penultimate violation, the trial court revoked
        Appellant’s probation and sentenced him to twelve to twenty-four
        months’ incarceration in the Venango County Jail. His subsequent
        conduct was summarized by the trial court as follows.

          On April 10, 2014, Appellant was released from Venango
          County Prison and paroled to the Oxford House located at
          1417 Chestnut Street, Franklin, PA. Thereafter, Appellant
          began his drug and alcohol treatment with Venango County
          Substance Abuse program. Appellant also held employment
          for a short period of time at Venango County Steel. On May
          30, 2014, a Special Field Report was prepared for Venango
          County Court requesting a bench warrant to declare
          Appellant an absconder. On June 4, 2014, a bench warrant
          was issued by Venango County Court. Constable Craig
          Westover and the Oil City Police Department arrested
          Appellant on July 6, 2014.

          On July 18, 2014, the Commonwealth filed a petition to
          revoke Appellant’s probation/parole. On August 28, 2014,
          Appellant appeared at a hearing to determine whether his
          probation should be revoked. Appellant was represented by
          counsel . . . . With the advice of counsel in open court,
          Appellant waived Gagnon I[3] and proceeded to Gagnon
          II. At Gagnon II, Appellant admitted that while on parole
          and probation status, he changed his residence, failed to
          report, violated curfew, used crack cocaine, associated with
          drug users or dealers, and consumed alcohol. As these were
____________________________________________


2 The charges for unauthorized use of a motor vehicle and theft appear at
docket number 597-2009. The charges for escape and resisting arrest appear
at docket number 599-2009. The charges for forgery and identity theft appear
at docket number 688-2009.

3   Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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          material violations of the conditions of parole and probation,
          parole and probation were revoked. Appellant appeared for
          resentencing on October 7, 2014, and was sentenced to
          12½ years to 25 years in a state institution of the
          Department of Corrections.[4] The trial court determined at
          sentencing that Appellant was not RRRI eligible.

Commonwealth v. Finnecy, 135 A.3d 1028, 1029-30 (Pa. Super. 2016),

appeal denied, 159 A.3d 935 (Pa. 2016) (citation and brackets omitted).

       This Court affirmed the judgment of sentence on February 18, 2016.

Significantly, this Court’s opinion held: “Appellant’s prior conviction for

resisting arrest demonstrates ‘a history of present or past violent behavior’ for

the purposes of determining RRRI eligibility.” Finnecy, 135 A.3d at 1037.

The Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on October 19, 2016.

       Appellant timely filed his first pro se PCRA petition on March 9, 2017.

Appellant raised multiple allegations of ineffectiveness related to all prior

counsels’ assistance with Appellant’s RRRI eligibility claims. The PCRA court

appointed new counsel, who filed a Turner/Finley5 letter and motion to

withdraw on September 28, 2017. On October 11, 2017, the court permitted


____________________________________________


4 At docket number 688-2009, the court imposed consecutive sentences of
one to two years’ imprisonment for each of the ten counts of forgery. The
court also imposed a consecutive term of two and one-half to five years’
imprisonment for identity theft. At docket number 498-2013, the court
sentenced Appellant to two and one-half to five years’ imprisonment for
identity theft, running consecutive to the forgery sentences and concurrent
with the other identify theft sentence.

5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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counsel to withdraw and issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. Appellant subsequently filed pro se responses to

the Turner/Finley letter and Rule 907 notice.

       On November 27, 2017, Appellant filed a pro se motion for leave to file

an addendum to his PCRA petition. Specifically, Appellant sought to raise a

new issue, arguing that the trial court imposed an illegal sentence by failing

to make him eligible for the RRRI program.        In support of his argument,

Appellant asserted that he had recently discovered the Pennsylvania Supreme

Court’s decision in Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa.

2017), which he characterized as a pivotal new case related to RRRI eligibility.

       On December 21, 2017, the PCRA court scheduled a hearing on

Appellant’s motion for leave to file an addendum to his PCRA petition. New,

privately retained counsel entered his appearance on Appellant’s behalf on

January 24, 2018. On February 16, 2018, the court conducted an evidentiary

hearing. The court denied PCRA relief by order and opinion entered on June

19, 2018.     The court addressed the argument raised in the addendum to

Appellant’s PCRA petition, concluding that the holding in Cullen-Doyle did

not apply to Appellant’s case.

       On July 5, 2018, Appellant filed a pro se notice of appeal.6 Also on July

5, 2018, private counsel filed a motion to withdraw his appearance, indicating

____________________________________________


6  Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), specifies that a
litigant must file separate notices of appeal when an order disposes of issues



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that Appellant hired him for the sole purpose of providing representation at

the PCRA hearing. The PCRA court permitted private counsel to withdraw on

July 6, 2018. On July 20, 2018, the court conducted a hearing and determined

that Appellant made a knowing, intelligent, and voluntary decision to proceed

pro se on appeal. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

       Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. The PCRA court filed a responsive opinion,

relying on the rationale set forth in its June 19, 2018 order and opinion.

       Appellant raises three issues for our review:

       1: Whether the PCRA court erred as a matter of law when it
       determined [Appellant] is not eligible for RRRI because of his sole
       conviction of misdemeanor resisting arrest, defying or
       misinterpreting    the    PA    Supreme      Court’s   ruling    in
       Commonwealth v. Cullen-Doyle . . ., which held that a single
       conviction for a non-enumerated violent offense does not render
       the offender RRRI-ineligible due to the ambiguity of the word
       “history” and that any ambiguity surrounding the term should be
       resolved in favor of those seeking admission into the program.

       2: Whether the PCRA court erred as a matter of law when it
       determined [Appellant] remains ineligible for RRRI because of a
       single, past conviction of resisting arrest, in contrast with the
       Superior Court’s rulings in both Commonwealth v. Irvin, [432
       MDA 2017 (Pa. Super. filed Dec. 14, 2017) (unpublished mem.)]
       and Commonwealth v. Haynick, [511 MDA 2017 (Pa. Super.
       filed Dec. 14, 2017) (unpublished mem.)], holding that a single
       past or present conviction for a non-enumerated violent offense
       does not render a defendant RRRI ineligible.

____________________________________________


at more than one trial court docket. Although Appellant’s notice of appeal lists
two trial court docket numbers, he notes that his appeal constitutes a
challenge to the sentence imposed at only one of those dockets. Appellant’s
Brief at ix. Therefore, we need not quash the appeal based on Walker.

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       3: Whether PCRA counsel was ineffective for failing to invoke
       critical case law . . . which supports [Appellant’s] position that he
       is, in fact, eligible for RRRI status.

Appellant’s Brief at vi-vii (full capitalization omitted) (emphasis in original).

       Appellant’s first two issues are related, and we address them together.

Appellant relies on the holding in Cullen-Doyle “that a defendant’s single,

present conviction does not render the defendant ineligible for the RRRI

program . . . .” Id. at 4. Citing unpublished memorandums,7 Appellant claims

“the adjudication in Cullen-Doyle for a singular present violent conviction

not listed in the RRRI statute extends to cases involving a singular past violent

conviction not listed in the RRRI statute.” Id. (emphasis added). Appellant

maintains that, “for purposes of RRRI, Cullen-Doyle’s single burglary

conviction and [Appellant’s] single resisting arrest conviction are identical,”

and the PCRA court erred by distinguishing Appellant’s case. Id. at 3.

       Appellant acknowledges that the PCRA court denied relief by relying on

this Court’s opinion from Appellant’s direct appeal. Id. at 6. Appellant insists,

however, that this Court’s holding was limited to a determination of “whether

resisting arrest should be construed as a ‘crime of violence’ in the first place.”

Id. Even if his resisting arrest conviction is properly characterized as a crime

____________________________________________


7 As noted by the Commonwealth, this Court and the parties cannot rely upon
or cite to unpublished memorandums. Commonwealth’s Brief at 13-14 (citing
210 Pa. Code § 65.37). In his reply brief, Appellant concedes that the citations
in his brief violate Section 65.37. Appellant’s Reply Brief at 6. Accordingly,
we do not rely on these unpublished memorandums while considering
Appellant’s claims. We note, however, that Pennsylvania Rule of Appellate
Procedure 126 will be amended, effective May 1, 2019, to allow citation to
unpublished memorandums filed after that date for their persuasive value.

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of violence, Appellant contends this lone conviction is not enough to render

him ineligible for the RRRI program. Id. at 7.

      Our review of the dismissal of a PCRA petition is limited to the

examination of “whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (quotation marks and citation omitted). “The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citation omitted). We review the PCRA court’s legal conclusions de

novo. See Miller, 102 A.3d at 992.

      “[A] defendant’s challenge relative to the failure to apply a RRRI

minimum [is] a non-waivable illegal sentencing claim.” Commonwealth v.

Tobin, 89 A.3d 663, 669 (Pa. Super. 2014) (citation omitted). “The PCRA

provides the sole means for obtaining collateral review of a judgment of

sentence. A court may entertain a challenge to the legality of the sentence

so long as the court has jurisdiction to hear the claim.” Commonwealth v.

Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citations, quotation marks, and

brackets omitted).

      “The RRRI Act 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).

The RRRI Act defines “eligible offender” in relevant part as follows:

      § 4503. Definitions

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      The following words and phrases when used in this chapter shall
      have the meanings given to them in this section unless the context
      clearly indicates otherwise:

                                  *    *    *

      “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:

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

61 Pa.C.S. § 4503(1). A “prior conviction for resisting arrest demonstrates ‘a

history of present or past violent behavior’ for the purposes of determining

RRRI eligibility.” Finnecy, 135 A.3d at 1037.

      In Cullen-Doyle, the defendant pled guilty to several counts of

conspiracy and one count of burglary. The defendant asked the trial court to

sentence him under the RRRI Act, but the court found him ineligible.         On

appeal, this Court affirmed, concluding that the defendant “was ineligible for

the RRRI program based solely on his present conviction for” burglary.

Cullen-Doyle, 164 A.3d at 1241.

      The Pennsylvania Supreme Court granted review to determine whether

the defendant’s single burglary conviction demonstrated a “history” of present

or past violent behavior under Section 4503(1).      Id. at 1240.    The Court

announced that it found “the salient aspect of the statute, referring to a

‘history of present or past violent behavior,’ . . . to be materially ambiguous,

thereby implicating recourse to the rules of statutory construction.” Id. at



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1242 (citation and footnote omitted). In evaluating the legislative history of

the RRRI Act, the Court explained that the RRRI program’s stated purpose is

to “encourage eligible offenders . . . to participate in . . . programs . . . that

reduce the likelihood of recidivism.” Id. (quoting 61 Pa.C.S. § 4504(b)). The

Court acknowledged that a “commonly accepted corollary to the Act’s express

purpose of reducing recidivism is that first-time offenders are usually more

amenable to reform than inmates who have persisted in criminal conduct.”

Id. (footnote omitted).

      In light of the Act’s purpose, the Supreme Court analyzed Section

4503(1) as follows:

      [U]se of the word “history” assumes greater significance because
      it evidences an intent to render ineligible individuals with “an
      established record or pattern” of violent behavior. Indeed, we
      believe this understanding engenders the most cogent and natural
      interpretation of the statute, since it permits a sentencing court
      to assess whether an offender has an established record or pattern
      of past or present violent behavior. As such, it can be fairly
      inferred that, in aiming to reduce recidivism, the Legislature
      sought to offer greater reform opportunities for first-time
      offenders than for repeat offenders.

Id. at 1243 (citation omitted). Therefore, the Court held that “the single,

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

behavior.” Id. at 1244 (citation omitted) (emphasis added).

      Instantly, the PCRA court distinguished Appellant’s case from Cullen-

Doyle in two ways:

      1. [Appellant’s] conviction here was for a crime that was pled to,
      and sentenced for, years before his case at criminal docket
      number 498-2013 was even commenced; and 2. [Appellant’s]

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      prior conviction was for resisting arrest, not burglary, a single
      conviction of which the Superior Court has previously found to
      meet the definition of present or past violent behavior.

PCRA Ct. Op., 6/19/18, at 7.

      We agree with the PCRA court’s determination that Appellant’s prior

conviction for resisting arrest demonstrates “a history of present or past

violent behavior” that renders Appellant ineligible for the RRRI program. See

Finnecy, 135 A.3d at 1037. Further, the record demonstrates that Appellant

is not the type of “first-time offender” who the Cullen-Doyle Court identified

as potentially eligible for the RRRI program. See Cullen-Doyle, 164 A.3d at

1243. In light of the applicable standard of review and relevant case law, the

PCRA court’s conclusions are free of legal error and Appellant is not entitled

to relief on his first two claims. See Miller, 102 A.3d at 992.

      In his third issue, Appellant contends that PCRA counsel was ineffective

for failing to argue that Appellant qualified for the RRRI program pursuant to

unpublished memorandums issued by this Court.          However, this Court’s

unpublished memorandums are non-precedential decisions, and as stated

above, the PCRA court properly concluded that Cullen-Doyle did not apply.

Consequently, we cannot deem PCRA counsel ineffective for failing to pursue

a meritless claim. See Commonwealth v. Smith, 167 A.3d 782, 788 (Pa.

Super. 2017) (stating counsel cannot be found ineffective for failing to pursue

a baseless or meritless claim).

      Order affirmed.




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President Judge Panella joins the memorandum.

Judge Strassburger files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2019




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