J-S52029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD WALKER                              :
                                               :
                       Appellant               :   No. 660 EDA 2019


       Appeal from the Judgment of Sentence Entered February 1, 2019,
                in the Court of Common Pleas of Bucks County,
            Criminal Division at No(s): CP-09-CR-0004305-2017.


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED DECEMBER 04, 2019

        Donald Walker appeals from the judgment of sentence entered following

revocation of his probation. Walker claims that the court erred in concluding

that he was ineligible for an RRRI (Recidivism Risk Reduction Incentive)

minimum sentence.1 Upon review, we vacate his sentence and remand with

instructions.

        On May 10, 2017, Walker broke into a gas station, located in Bucks

County, Pennsylvania, after hours to commit a theft. Walker was charged

with criminal trespass, to which he pled guilty. The trial court sentenced him

to 12 months of incarceration followed by 4 years of probation.       Because

Walker’s crime was a felony and he lived in New Jersey, his case was

transferred to New Jersey through the interstate compact.
____________________________________________


1   61 Pa.C.S.A. § 4501 et seq.
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      While serving his probation, Walker was charged with three separate

burglary-related offenses in New Jersey. Walker pled guilty to those charges

and received various sentences, including imprisonment and probation.

Thereafter, his case was transferred back to Pennsylvania for a probation

violation hearing.

      Walker admitted that he violated his probation. Consequently, the court

revoked his probation and sentenced him to 18 to 60 months of imprisonment.

Walker asked the court to designate his sentence as RRRI eligible, but the

court denied his request based upon his criminal history and convictions for

burglary.

      Walker timely appealed.    Both the court and Walker complied with

Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Walker raises the following single issue:

      A. Whether four prior convictions for burglary should prevent
         [Walker] from qualifying for a recidivism risk reduction
         incentive minimum sentence?

Walker’s Brief at 9.

      Walker argues that the trial court should have imposed an RRRI

minimum sentence under 61 Pa.C.S.A. § 4505.         Specifically, according to

Walker, New Jersey’s burglary statute, unlike Pennsylvania’s, does not

distinguish between occupied and unoccupied structures. As a result, there is

no distinction between first and second-degree burglary in New Jersey as




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there is in Pennsylvania. Walker’s Brief at 8, 13. Thus, Walker contends he

is eligible for an RRRI minimum sentence. Id. at 9.

      In concluding that Walker was not RRRI eligible, the court reviewed the

sentencing guideline sheet, which indicated that Walker had three F2

convictions, eleven F3 convictions, and one M1 conviction involving weapons.

The Commonwealth advised the court that, since Walker had four prior burglaries,

he did not qualify for RRRI. Trial Court Opinion, 4/30/19, 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

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

sentence on an eligible offender.” Id.

      A defendant who has “a history of present or past violent behavior” is

not eligible for an RRRI sentence. 61 Pa.C.S.A. § 4503. Particularly, with

respect to burglary offenses, our Supreme Court has held that “a conviction

for first-degree burglary demonstrates violent behavior under Section 4503(1)

as a matter of law.” Commonwealth v. Finnecy, 135 A.3d 1028, 1034 (Pa.

Super. 2016)(citing Commonwealth v. Chester, 101 A.3d 56, 57 (Pa.

2014)); but see Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa.

2017) (holding that a conviction for first-degree burglary, by itself, does not

disqualify a defendant from eligibility for an RRRI sentence). However, “[a]n

F2 burglary, by definition, does not involve the risk of violence, or injury, to

another person. It is solely an offense against the property rights of the owner




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of the subject premises.” Commonwealth v. Gonzalez, 10 A.3d 1260,

1262 (Pa. Super. 2010).

      Furthermore, when considering a conviction from another state, the

court must compare the statute from the other state that defines the

offense with the Pennsylvania statute defining the same offense to

determine whether the two statutes are “substantially equivalent”.

Commonwealth v. Barbaro, 94 A.3d 389, 393 (Pa. Super. 2014). If they

are not, then the out of state conviction should not be considered in

determining RRRI eligibility. Id.     When comparing statutes, “the court

must consider the elements of the foreign offense in terms of classification

of the conduct proscribed, its definition of the offense, and the

requirements for culpability.”    Id. at 394 (emphasis omitted).        Courts

should not focus on the facts of the underlying conviction “but rather the

statute that triggered the conviction”. Commonwealth v. Northrip, 985

A.2d 734, 741-42 (Pa. 2009).

       At issue here is whether Walker’s past convictions, particularly his

convictions for burglary, disqualify him from RRRI eligibility.     The court

recognized, however, that it did not have sufficient information at the hearing

regarding Walker’s prior convictions, particularly the New Jersey burglaries,

and therefore, the court was unable to adequately assess his RRRI eligibility.

In its Pa.R.A.P. 1925 opinion, the court requested that we remand this matter

for further proceedings to take additional evidence and argument. Trial Court

Opinion, 4/30/19, at 4. According to the court, Walker may be RRRI eligible

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based upon the nature of Walker’s burglary convictions.                Id.   The

Commonwealth agrees that the details of Walker’s criminal record need

developed further, and therefore, this matter should be remanded to

determine solely Walker’s RRRI eligibility. Commonwealth’s Brief at 8. We,

therefore, vacate Walker’s judgment of sentence and remand for resentencing

to determine Walker’s eligibility, and, if applicable, to impose a new sentence

which includes an RRRI minimum sentence.2

       Judgment of sentence vacated.             Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/19




____________________________________________


2We note that Walker’s criminal record is not a part of the record in this case.
Therefore, as noted by the Commonwealth, we are unable to determine
whether Walker was eligible for an RRRI minimum sentence.                   See
Commonwealth’s Brief at 7-8 n. 1.

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