J-S65001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL SHAWN KLINGENSMITH

                            Appellant                No. 1120 WDA 2013


                    Appeal from the Order January 31, 2013
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001854-2007


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

JUDGMENT ORDER BY LAZARUS, J.:                  FILED SEPTEMBER 01, 2016

        Michael Shawn Klingensmith appeals pro se from his January 31, 2013

“praecipe for entry of final order/denial by operation of law.” After careful

review, we quash the appeal.

        On February 6, 2008, Klingensmith entered an open guilty plea to

twenty-three counts of burglary1 of a private residence (F-1) and one count

of criminal attempt.2       The crimes occurred in Westmoreland, Armstrong,

Butler and Allegheny Counties. On April 24, 2008, the trial court sentenced

Klingensmith to 10 to 20 years’ incarceration on count 1, and a concurrent


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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3502(a).
2
    18 Pa.C.S. § 910(a).
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sentence of 10 to 20 years’ incarceration on the remaining counts.3 On July

28, 2008, Klingensmith filed a timely pro se PCRA petition. On March 31,

2009, the court appointed PCRA counsel; counsel filed an amended petition.

After a hearing, the trial court denied Klingensmith’s PCRA petition on

October 22, 2009. Klingensmith filed a timely collateral appeal; our Court

affirmed the denial of his petition. See Commonwealth v. Klingensmith,

456 WDA 2010 (Pa. Super. filed Nov. 30, 2011).

       On July 6, 2012, Klingensmith filed a pro se motion claiming that he

was retroactively eligible under the Recidivism Risk Reduction Incentive

(RRRI)4 statute.      Klingensmith continued to file various pro se motions to

compel and correct his sentence, none of which was ruled upon by the trial

court.5 On July 8, 2013, Klingensmith filed a notice of appeal from a pro se




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3
 Pursuant to the plea agreement, the Commonwealth nolle prossed counts
25-87 of the criminal complaint.
4
  The RRRI Act “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.
5
  Presumably, the trial court did not rule upon any of Klingensmith’s pro se
motions because, generally, post-sentence motions must be filed within 10
days after imposition of sentence and a trial court ordinarily has no
jurisdiction to entertain a post-sentence motion filed more than 30 days
after the imposition of sentence. See Pa.R.Crim.P. 720.



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praecipe (entitled “praecipe for entry of final order denial by operation of

law”) he had filed on January 31, 2013.6

        On   appeal,    Klingensmith     presents   the   following   issue   for   our

consideration: “Did the lower court commit an err[or] of law by failing to

resentence Appellant to R.R.R.I. sentence after the Pennsylvania Legislature

downgrade[d] the offense of Burglary 18 Pa.C.S.A. § 3502 [to] a F-2

felony?”

        Klingensmith’s notice of appeal is filed from his January 31, 2013 pro

se praecipe (entitled “praecipe for entry of final order denial by operation of

law).    This is clearly not an appealable, final order or one certified by the

trial court as such.        See Pa.R.A.P. 301, 311, 341.          Thus, we quash.

        Appeal quashed.7


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6
  We note that this appeal has been lingering in our Court due to the fact
that the trial court failed to timely comply with this Court’s directive to
complete, certify, and transmit the certified record which was due in this
Court in September 2013.
7
  We note that even if we were able to reach the merits of Klingensmith’s
issue on appeal, he would not be entitled to relief. In Commonwealth v.
Chester, 101 A.3d 56 (Pa. 2014), our Supreme Court held that first-degree
burglary constitutes “violent behavior” under the RRRI Act, and, thus, makes
a defendant convicted under section 3502(a) an ineligible offender. See 61
Pa.C.S. § 4503 (defining eligible offender under RRRI statute as defendant
who “[d]oes not demonstrate a history of present or past violent behavior.”).
Moreover, the 2012 amendments to the RRRI statute do not downgrade
Klingensmith’s section 3502(a) convictions from a first-degree to second-
degree felony. See 2011 Pa. SB 100 (making burglary under 3502(a)(4),
entering building not adapted for overnight accommodations with no one
present, second-degree felony); 18 Pa.C.S. § 3502(c)(2).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2016




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