J-S45033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD DEAN HODGE,

                            Appellant                No. 1895 WDA 2015


            Appeal from the Judgment of Sentence August 25, 2015
               in the Court of Common Pleas of Mercer County
              Criminal Division at No.: CP-43-CR-0000240-2015


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 11, 2016

         Appellant, Richard Dean Hodge, appeals pro se from the judgment of

sentence imposed following his guilty plea to one count of corrupt

organizations and three counts of possession with intent to deliver (PWID) a

controlled substance, arising from his involvement in a heroin distribution

ring.1    Appellant challenges the trial court’s determination that his past

conviction for abuse of a corpse2 rendered him ineligible for a Recidivism

Risk Reduction Incentive (RRRI) sentence.        Upon careful review we are



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 911(b)(2); 35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 5510.
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constrained to agree, and therefore we vacate the judgment of sentence and

remand for re-sentencing.

     We take the facts and procedural history in this matter from the trial

court’s October 13, 2015 opinion.

           On June 12, 2015, [Appellant pleaded] guilty to [one]
     count of corrupt organizations, [one] count of [PWID] [ten] but
     less than [fifty] grams of heroin, a second offense, [one] count
     of [PWID] [five] but less than [ten] grams of heroin, a second
     offense, and [one] count of [PWID] less than [one] gram of
     heroin, a second offense.

            [Appellant] was sentenced on August 25, 2015, to a term
     of imprisonment of not less than [two and one-half] nor more
     than [ten] years on the charge of corrupt organization[s]; to a
     consecutive term of imprisonment of not less than [two and one-
     half] nor more than [ten] years on the charge of PWID heroin,
     more than [ten] grams but less than [fifty] grams; to a
     consecutive term of imprisonment of not less than [two and one-
     half] years nor more than [five] years on the charge of PWID
     heroin, more than [five] grams but less than [ten] grams; and a
     concurrent sentence of not less than [two] years nor more than
     [five] years on the remaining count of PWID. [This resulted in
     an aggregate sentence of not less than seven and one-half nor
     more than twenty-five years’ imprisonment.]

          The sentences were all within the standard range of the
     sentencing guidelines.

           [The trial] court decline[d] to impose a RRRI minimum
     sentence because of [Appellant’s] prior conviction for abuse of a
     corpse and there was no waiver by the Commonwealth.

           [Appellant], although represented by counsel, filed on his
     own a motion to modify sentence[] on August 28, 2015. Among
     the issues raised in that motion was that the court erred in not
     imposing a RRRI minimum sentence.

           The motion was denied without a hearing.

(Trial Court Opinion, 10/13/15, at 2-3) (unnecessary capitalization omitted).



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        Appellant, acting pro se, filed a notice of appeal on September 11,

2015.     Pursuant to the court’s order, Appellant filed a counseled concise

statement of errors complained of on appeal on October 13, 2015.              See

Pa.R.A.P. 1925(b). The trial court entered its opinion the same day.          See

Pa.R.A.P. 1925(a). On February 2, 2016, after a Grazier3 hearing, the trial

court granted Appellant’s motion to proceed pro se and permitted counsel to

withdraw from representation.

        Appellant raises one issue on appeal.

        1. Did the [s]entencing [c]ourt err as a matter of [l]aw or abuse
        its discretion when it denied Appella[nt] the benefits of the RRRI
        [s]tatute where it is not clearly defined if Appellant’s prior
        conviction for abuse of corpse is considered a “crime of violence”
        which makes Appellant ineligible under the “history of past
        violent behavior” clause?

(Appellant’s Brief, at 3) (underlining omitted).

        In his sole issue on appeal, Appellant challenges the legality of the trial

court’s determination that he is not an RRRI eligible offender. (See id. at 6-

13). Specifically, he argues that his prior conviction for abuse of a corpse is

not included in the RRRI statute as a crime that would preclude a defendant

from being RRRI eligible, nor is it included in other Pennsylvania statutes

that concern crimes of violence.         (See id.) (citing 42 Pa.C.S.A. § 9714(g)

(Sentencing Code definition of crime of violence for recidivist offenders); 61

Pa.C.S.A. § 3903 (eligibility for inmate motivational boot camp program); 18
____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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Pa.C.S.A. § 6105(b)-(c) (offenses precluding offenders from possession or

use of firearms)).      Therefore, he argues that his conviction for abuse of a

corpse does not create a history of past violent behavior rendering him

ineligible for RRRI sentencing.4 (See id. at 6). Upon review of the record,

we agree.

       [W]e note that [i]t is legal error to fail to impose a RRRI
       minimum on an eligible offender. A challenge to a court’s failure
       to impose an RRRI sentence implicates the legality of the
       sentence.    In this context, Appellant challenges the court’s
       interpretation of a statute.

             [B]ecause statutory interpretation implicates a question of
       law, our scope of review is plenary and our standard of review is
       de novo.

          When interpreting a statute:

                Our task is guided by the sound and settled
          principles set forth in the Statutory Construction Act,
          including the primary maxim that the object of statutory
          construction is to ascertain and effectuate legislative
          intent. 1 Pa.C.S.[A.] § 1921(a). In pursuing that end, we
          are mindful that “[w]hen the words of a statute are clear
          and free from all ambiguity, the letter of it is not to be
          disregarded under the pretext of pursuing its spirit.” 1
          Pa.C.S.[A.] § 1921(b). Indeed, “[a]s a general rule, the
          best indication of legislative intent is the plain language of
          a statute.” In reading the plain language, “[w]ords and
          phrases shall be construed according to rules of grammar
          and according to their common and approved usage,”
____________________________________________


4
   Although in his brief Appellant argues that his single prior conviction does
not constitute a history of past or present violent behavior, because
Appellant failed to include this issue in his statement of questions presented,
it is waived. (See Appellant’s Brief, at 13); Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved
or is fairly suggested thereby.”).



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        while any words or phrases that have acquired a “peculiar
        and appropriate meaning” must be construed according to
        that meaning. 1 Pa.C.S.[A.] [§] 1903(a). However, when
        interpreting non-explicit statutory text, legislative intent
        may be gleaned from a variety of factors, including, inter
        alia: the occasion and necessity for the statute; the
        mischief to be remedied; the object to be attained; the
        consequences of a particular interpretation; and the
        contemporaneous legislative history.      1 Pa.C.S.[A.] §
        1921(c).    Moreover, while statutes generally should be
        construed liberally, penal statutes are always to be
        construed strictly, 1 Pa.C.S.[A.] § 1928(b)(1), and any
        ambiguity in a penal statute should be interpreted in favor
        of the defendant.

Commonwealth v. Hanna, 124 A.3d 757, 759-60 (Pa. Super. 2015) (case

citations and some quotation marks omitted).

     The     RRRI   program   was   established   to     “ensure[]   appropriate

punishment    for   persons   who   commit     crimes,    encourage[]    inmate

participation in evidence-based programs that reduce the risks of future

crime and ensure[] the openness and accountability of the criminal justice

process while ensuring fairness to crime victims.” 61 Pa.C.S.A. § 4502. The

RRRI Act “provides (1) that a sentencing court must designate a sentence as

an RRRI sentence whenever the defendant is eligible for that designation,

and (2) that a defendant is eligible for that designation if he has not been

previously convicted of certain enumerated offenses and ‘[d]oes not

demonstrate a history of present or past violent behavior.’ 61 Pa.C.S.[A.] §

4503 (defining “Eligible offender”).” Commonwealth v. Gonzalez, 10 A.3d

1260, 1262 (Pa. Super. 2010), appeal denied, 21 A.3d 1190 (Pa. 2011)

(footnotes omitted). Although the RRRI Act includes multiple exclusions in



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its definition of an eligible offender, the “history of present or past violent

behavior” is the only exclusion relevant here. 61 Pa.C.S.A. § 4503(1).

       The question of whether a past conviction of abuse of a corpse

constitutes a history of present or past violent behavior for the purpose of

RRRI eligibility is an issue of first impression. However, our interpretation is

guided by this Court’s decision in Gonzalez, supra and our Supreme Court’s

decision in Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014), both of

which considered whether an offense constituted evidence of past violent

behavior rendering an offender ineligible for an RRRI sentence.

       In Gonzalez, this Court considered whether the appellant’s prior

conviction for second-degree burglary constituted evidence of past violent

behavior. Gonzalez, supra at 1262. The Gonzalez Court concluded that

based on the Pennsylvania Crimes Code, second-degree burglary, by

definition, “does not involve the risk of violence or injury to another person.”

Id. The court also considered that second-degree burglary was not included

as a crime of violence in the Sentencing Code, see 42 Pa.C.S.A. § 9714(g);

did not render an offender ineligible for motivational boot camp, see 61

Pa.C.S.A. § 3903; and was not included in the Pennsylvania Crime Victims

Act as a personal injury crime, see 18 P.S. § 11.103. See Gonzalez, supra

at 1262-63. The Court reasoned that the RRRI Act constituted a remedial

act,   and   therefore   concluded   that,   given   the   consistent   legislative

distinctions made by the General Assembly, appellant’s prior conviction




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should not have been construed as an indication of past violent behavior to

disqualify him from an RRRI sentence. See id. at 1263.

      In Chester, our Supreme Court similarly considered whether a prior

conviction for a crime not specifically enumerated in the RRRI eligible

offender definition, first-degree burglary, was sufficient to form a history of

violent behavior.     See Chester, supra at 432.         The Supreme Court

reasoned that “it is well established within our case law that [b]urglary is a

crime of violence as a matter of law, signifying that first-degree burglary

necessarily constitutes violent behavior in all contexts including under

Section 4503(1).”      Id. at 443 (internal quotation marks and citation

omitted).   The court also considered this Court’s reasoning in Gonzalez,

supra, and concluded that

      the case is even stronger for specifically construing the
      commission of the crime of first-degree burglary as violent
      behavior under Section 4503(1), given that, unlike second-
      degree burglary, first-degree burglary is listed as a crime of
      violence under the recidivist minimum sentencing provision in 42
      Pa.C.S.A. § 9714(g), and the crime specifically renders an
      offender ineligible for motivational boot camp pursuant to 61
      Pa.C.S.A. § 3903.

Chester, supra at 444.         Therefore, the court concluded that a prior

conviction of first-degree burglary was sufficient to render an offender

ineligible for RRRI eligibility. See id. at 445.

      Here, Appellant has a previous conviction of violating 18 Pa.C.S.A. §

5510, which states: “Except as authorized by law, a person who treats a

corpse in a way that he knows would outrage ordinary family sensibilities


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commits a misdemeanor of the second degree.” 18 Pa.C.S.A. § 5510. Thus,

under the plain language of the statute, abuse of a corpse does not involve

the risk of violence to another person; it is an offense against ordinary

family sensibilities.   See id.    Furthermore, similar to Gonzalez, supra,

abuse of a corpse is not included in the definition of a crime of violence in

the Sentencing Code, see 42 Pa.C.S.A. § 9714(g); does not render an

offender ineligible for inmate motivational boot camp, see 61 Pa.C.S.A. §

3903; and is not included as a personal injury crime under the Pennsylvania

Crime Victim’s Act, see 18 P.S. § 11.103. See Gonzalez, supra at 1262-

63.   Additionally, as Appellant notes, his prior conviction for abuse of a

corpse does not preclude him from possession or use of a firearm pursuant

to 18 Pa.C.S.A. § 6105. (See Appellant’s Brief, at 10-12).

      Thus, we are constrained to conclude that the trial court erred in

finding that Appellant’s prior conviction for abuse of a corpse constituted a

history of past violent behavior rendering him ineligible for an RRRI

sentence.       See 61 Pa.C.S.A. 4503(1); Chester, supra at 442-44;

Gonzalez, supra at 1263.           Accordingly, we vacate the judgment of

sentence, and remand this case to the trial court for re-sentencing.

      Judgment     of   sentence    vacated,   case   remanded,    jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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