J-S76017-18

                                  2019 PA Super 111

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW BEISH,                             :
                                               :
                       Appellant.              :   No. 438 WDA 2018


            Appeal from the Judgment of Sentence, March 12, 2018,
                 in the Court of Common Pleas of Erie County,
             Criminal Division at No(s): CP-25-CR-0004013-2017.


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW THOMAS BEISH,                      :
                                               :
                       Appellant.              :   No. 443 WDA 2018


            Appeal from the Judgment of Sentence, March 12, 2018,
                 in the Court of Common Pleas of Erie County,
             Criminal Division at No(s): CP-25-CR-0004014-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

OPINION BY KUNSELMAN, J.:                                FILED APRIL 09, 2019

        Matthew Thomas Beish, appeals from the judgment of sentence entered

following his guilty plea to criminal trespass and theft by unlawful taking.1

Beish claims the trial court denied him due process at sentencing when it found


____________________________________________


1   18 Pa.C.S.A. § 3503(a)(1)(i) and 18 Pa.C.S.A. § 3921(a), respectively.
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him ineligible for the Recidivism Risk Reduction Incentive (“RRRI”) under 61

Pa.C.S.A. § 4503(5). After careful review, we affirm.

        On August 29, 2017, Beish broke into a residence at 143 West 38th

Street, Erie, Pennsylvania. The Commonwealth charged Beish with one count

of criminal trespass. 2 18 Pa.C.S.A. § 3503(a)(i).

        Shortly thereafter, on September 3, 2017, Beish took a vehicle from a

convenience store parking lot that did not belong to him. The Commonwealth

charged Beish with one count of theft by unlawful taking.      3   18 Pa.C.S.A. §

3921(a).

        Beish pled guilty to both of these charges. When Beish appeared for

sentencing, the trial court inquired about his eligibility for an RRRI sentence.

The probation officer indicated that Beish was ineligible because he was

awaiting trial on two additional charges for burglary. Ultimately, the trial court

sentenced Beish to fifteen (15) months to seven (7) years of imprisonment

for the theft and one (1) to seven (7) years of imprisonment for criminal

trespass, to be served consecutively. Further, the trial court declared Beish

RRRI ineligible, but indicated, however, that it would later reconsider Beish’s

eligibility if he was not convicted on the pending charges.

         Beish filed a post-sentence motion at both dockets.         Therein, he

asserted that the trial court’s denial of RRRI eligibility “based upon charges

for which he has not yet been convicted and may never be convicted is a
____________________________________________


2   Erie County Docket No. 4014 of 2017.
3   Erie County Docket No. 4013 of 2017.

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violation of [his] right to Federal and State due process.”       The trial court

denied his motion without addressing his constitutional claim.

      Beish filed timely notices of appeal at each docket. Both Beish and the

trial court complied with Pa.R.A.P. 1925. This Court sua sponte consolidated

these appeals.

      Beish presents the following single issue for our review:

      1. Did the trial court deny [Beish] due process of law, guaranteed
         by both the United States and Pennsylvania Constitutions,
         when it complied with statutory authority and declined to find
         [Beish] RRRI eligible pursuant to 61 Pa.C.S.A. § 4503 because
         of new charges for which he had not been convicted?

See Beish’s Brief at 8.

      The RRRI sentencing statute set forth in 61 Pa.C.S.A. § 4505 provides

in pertinent part:

      (a) Generally.--At the time of sentencing, the court shall make
      a determination whether the defendant is an eligible offender.

                                        ***
      (b) Recidivism risk reduction incentive minimum
      sentence.--If the court determines that the defendant is an
      eligible offender or the prosecuting attorney has waived the
      eligibility requirements under subsection (b), the court shall enter
      a sentencing order that does all of the following:

         (1) Imposes the minimum and maximum sentences as
         required under 42 Pa.C.S. § 9752 (relating to sentencing
         proceeding generally).

         (2) Imposes the recidivism        risk   reduction   incentive
         minimum sentence.

61 Pa.C.S.A. § 4505.




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      On appeal, Beish challenges the RRRI eligibility provision which

rendered him ineligible for an RRRI sentence. The relevant section provides:

      “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:
                                         ***
          (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.

61 Pa.C.S.A. § 4503(5). Specifically, Beish argues that subparagraph (5)

violates his constitutional right to due process.     Beish’s challenge is both

procedural and substantive in nature.

      Beish first contends that subparagraph (5) violates procedural due

process because it precluded his eligibility for an RRRI minimum sentence

without regard for the presumption of innocence and without any requirement

that the Commonwealth establish Beish’s involvement in the charged offense

beyond a reasonable doubt. Beish’s Brief at 18. Beish also contends that

subparagraph (5) violates substantive due process because it deprived him of

his fundamental right to freedom from bodily restraint. Id. at 19-20. Beish

therefore asks this Court to declare 61 Pa.C.S.A § 4503(5) unconstitutional,

to vacate his judgment of sentence, and to remand for imposition of an RRRI

sentence. Id. at 21.

      In addressing Beish’s constitutional claims, we are mindful of the

following legal principles:


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      All properly enacted statutes enjoy a strong presumption of
      constitutionality. Commonwealth v. Bullock, 913 A.2d 207,
      211 (2006), cert. denied, 550 U.S. 941 (2007); In re C.C.J., 799
      A.2d 116 (Pa. Super. 2002).

      Accordingly, a statute will not be declared unconstitutional unless
      it clearly, palpably, and plainly violates the Constitution. All
      doubts are to be resolved in favor of finding that the legislative
      enactment passes constitutional muster. Thus, there is a very
      heavy burden of persuasion upon one who challenges the
      constitutionality of a statute.        Pennsylvanians Against
      Gambling Expansion Fund, Inc. et al. v. Commonwealth of
      Pennsylvania, et al., 877 A.2d 383, 393 (Pa. 2005) (internal
      citations omitted). Appellate review of constitutional challenges to
      statutes, disputes over the legality of a sentence, a court's
      application of a statute, and general questions of law involve a
      plenary scope of review. Commonwealth v. McCoy, 895 A.2d
      18, 24 (Pa. Super. 2006), affirmed, 975 A.2d 586 (2009). “As
      with all questions of law, the appellate standard of review is de
      novo....” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en
      banc).

Com. v. Shawver, 18 A.3d 1190, 1193–94 (Pa. Super. 2011).

      The Fourteenth Amendment provides in part: “‘nor shall any State

deprive any person of life, liberty, or property, without due process of law,’”

and protects “‘the individual against arbitrary action of government.’”

Commonwealth v. Turner, 80 A.3d 754, 763 (Pa. 2013) (quoting Kentucky

Dept. of Corr. v. Thompson, 490 U.S. 454, 459–60 (1989) (internal

citations omitted)).

      Similarly, Article I, Section 9 of the Pennsylvania Constitution
      guarantees a criminal defendant the right to due process of law.
      Article I, Section 9 of the Pennsylvania Constitution and the
      Fourteenth Amendment of the United States Constitution
      guarantee a defendant the right to due process of law . . . . [T]he
      due process provision of the Pennsylvania Constitution does not
      provide greater protections than its federal counterpart. The
      constitutional right to due process guarantees more than fair


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      process, covering a substantive sphere as well, barring certain
      government actions regardless of the fairness of the procedures
      used to implement them.

Id. (internal citations and quotations omitted).

      The due process clause of the federal and state constitutions protect life,

liberty, and property. However, the interests and rights protected thereby are

not unlimited. See Turner, 80 A.3d at 765. Thus, a due process challenge

necessarily must implicate the deprivation of an interest or right to a particular

thing. In order to determine whether a due process violation has occurred,

as suggested by Beish, we must initially examine whether a protected interest

or right exists. See Wilder v. Department of Corrections, 673 A.2d 30,

32 (Pa. Cmwlth. 1996); Vitek v. Jones, 445 U.S. 480, 487, (1980)

(identifying the threshold question as whether the complained of government

action implicated a liberty interest that is protected by the Due Process

Clause).

      Beish suggests that his interest or fundamental right at issue in this

matter is his freedom from bodily restraint. Beish’s Brief at 14.       Freedom

“from bodily restraint,” lies “‘at the core of the liberty protected by the Due

Process Clause.’”   Turner v. Rogers, 564 U.S. 431, 445 (2011) (quoting

Foucha v. Louisiana, 504 U.S. 71, 80, (1992)). Although, generally, such

an interest or right exists for all individuals, we must consider the specific

interest or right in the context of this case and the statute at issue. Here, we

must determine whether Beish has a liberty interest or right in participating




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in the reduced minimum sentence program established under the RRRI

statute. We conclude that he does not.

      Our decision in Commonwealth v. Robinson 7 A.3d 868 (Pa. Super.

2010) is instructive in this matter. There, we examined the RRRI statute in

some detail, in particular what the legislature intended to afford an offender

by its enactment. We stated:

       Our review of the RRRI statute reveals that it is a treatment
      program established by the legislature with the following purpose:

         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.A. § 4502. The statute specifies that the intent of the
      program is as follows:

         (b) Intent.—This chapter is intended to encourage eligible
         offenders committed to the custody of the department to
         participate in and successfully complete evidence-based
         programs under this chapter that reduce the likelihood of
         recidivism and improve public safety.

      61 Pa.C.S.A. § 4504(b). The legislature has defined the term
      “program plan” as follows:

         “Program plan.” An individualized plan recommended by the
         department that contains approved treatment and other
         approved programs designed to reduce recidivism risk of a
         specific inmate.

      61 Pa.C.S.A. § 4503.

      The RRRI statute offers, as an incentive for completion of the
      program, the opportunity for prisoners to be considered for
      parole at the expiration of their RRRI minimum sentence.
      61 Pa.C.S.A. § 4506. However, we must also observe that section
      4511, which addresses construction of the RRRI statute,

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      explicitly enumerates various legal rights which the statute
      does not confer.

Robinson, 7 A.3d 868 at 874 (emphasis added). Specifically, section 4511

of the RRRI statute provides in relevant part that:

      Notwithstanding any other provision of law, this chapter shall not
      be construed to do any of the following:

          (2) Confer any legal right on any individual to be released
         parole under this chapter.

61 Pa.C.S.A. 4511(2).     Our analysis of the RRRI statute in Robinson

continued as follows:

      [T]he statute provides a treatment opportunity which is intended
      to prevent recidivism. Also, as our Supreme Court explained in
      Brittingham, Appellant has no vested “right” to be placed on
      parole, because parole is an act of grace, not of right.
      Consequently, we conclude that the statute does not increase any
      rights due Appellant nor does it impose any legal burden or
      additional punishment. Rather, as the Commonwealth notes in its
      appellate brief, “[t]he [RRRI] Act extends relief to offenders
      ‘convicted of a criminal offense who will be committed to
      the custody of the department....’ 61 Pa.C.S.A. § 4503.”

Robinson, 7 A.3d at 872–73 (emphasis modified).

      Significantly, we observe that the Legislature did not create any

additional rights to convicted offenders by enacting the RRRI statute.     We

confirmed this in Robinson.      Instead, the Legislature created a special

program for certain offenders as a privilege, and it defined which offenders

were eligible.

      Moreover, the RRRI statute does not grant or take away one’s freedom;

it offers an incentive to certain offenders, namely the opportunity to be


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considered for parole at the end of the RRRI minimum sentence.                61

Pa.C.S.A. § 4506.     Important to our due process review are the words

“opportunity” and “parole”.      First, the act only provides offenders an

opportunity to be considered.      Clearly, this language does not afford an

offender the “right” to be released from imprisonment or a guarantee that he

would be. Many factors go into a determination to release an offender upon

serving a minimum sentence. Consequently, one could not have a reasonable

expectation of freedom from restraint under the circumstances attending this

program, even if he were determined to be RRRI eligible.

      Second, the opportunity offered under the RRRI statute is parole. We

have stated parole is an act of grace, not of right. Robinson, 7 A.3d at 873.

Therefore, an offender has no vested “right” to be placed on parole. “‘Parole

is nothing more than a possibility, and, when granted, it is nothing more than

a favor granted upon a prisoner by the state as a matter of grace and mercy

shown by the Commonwealth to a convict who has demonstrated a probability

of his ability to function as a law-abiding citizen in society.’” Commonwealth

v. Becker, 172 A.3d 35, 38–39 (Pa. Super. 2017) (quoting Weaver v.

Pennsylvania Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Cmwlth.

1997)).

      Consistent with this understanding of parole, it has been held that “a

prisoner petitioning for parole has no present liberty interests at stake because

of [the petitioner’s] state of incarceration.” Rogers v. Pa. Bd. of Prob. &

Parole, 724 A.2d 319, 322 (Pa. 1999); see Greenholtz v. Inmates of

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Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (citing

Meachum v. Fano, 427 U.S. 215, 224 (1976) (“[G]iven a valid conviction,

the criminal defendant has been constitutionally deprived of his liberty.”).

“Undoubtedly, a valid criminal conviction and prison sentence extinguish a

defendant's right to freedom from confinement.” Vitek, 445 U.S. at 493.

      Here, Beish was convicted and already subject to the imposition of a

sentence consistent with the sentencing provisions. His liberty was already

duly restrained. Denying Beish RRRI eligibility did not extend his confinement

beyond that which is legally permissible or subject him to any greater restraint

or loss of liberty.

      Based upon the foregoing legal principles, we conclude that no

defendant has a constitutional right or interest in participating in the RRRI

program. Thus, we decline to declare 61 Pa.C.S.A. § 4503(5) unconstitutional.

As a result, we further conclude Beish was not deprived of due process, either

procedural or substantive, when the trial court refused to find him RRRI

eligible under 61 Pa.C.S.A. § 4503 based on his pending charges.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/2019


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