J-S09035-19
                             2019 PA Super 131

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellee                :
                                         :
         v.                              :
                                         :
MITCHELL LUNTZ DOZIER,                   :
                                         :
                 Appellant               :     No. 1227 WDA 2018

               Appeal from the PCRA Order Entered July 30, 2018
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003482-2016

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

OPINION BY STRASSBURGER, J.:                          FILED APRIL 25, 2019

      Mitchell Luntz Dozier (Appellant) appeals from the July 30, 2018 order

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      In light of our disposition, a detailed recitation of the underlying facts

is unnecessary. Pertinent to this appeal, following a three-day trial, the jury

found Appellant guilty of aggravated assault, carrying a firearm without a

license, discharge of firearm, recklessly endangering another person (REAP),

and two counts of possessing instruments of crime. On April 12, 2017, the

trial court sentenced Appellant to an aggregate term of incarceration of 7

years and 4 months to 14 years and 8 months, followed by 5 years of

probation. The trial court determined that Appellant was not eligible for the




* Retired Senior Judge assigned to the Superior Court.
J-S09035-19

Recidivism Risk Reduction Incentive Program (RRRI).        61 Pa.C.S. § 4505.

Appellant did not file a post-sentence motion or direct appeal.1

      On April 12, 2018, Appellant pro se filed the instant PCRA petition,

claiming trial counsel was ineffective for failing to file a post-sentence

motion or direct appeal.     PCRA Petition, 4/12/2018, at 4.       Counsel was

appointed and filed a supplement to Appellant’s PCRA petition on June 18,

2018.2   Within the supplement, Appellant claimed that he is RRRI eligible

based upon Cullen-Doyle, supra, and counsel was ineffective for failing to

pursue RRRI eligibility in a post-sentence motion or on direct appeal.

Supplement to Motion for Post Conviction Collateral Relief, 6/18/2018, at 1

(unnumbered).    Appellant did not ask to have his post-sentence or direct

appeal rights reinstated.

      On June 25, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Specifically, the PCRA court found the underlying claim regarding RRRI



1 The certified record includes a letter from Appellant asking counsel to file a
post-sentence motion to, inter alia, ask the trial court to reconsider his
eligibility for RRRI. Letter, 4/18/2017. It appears that this letter was sent
to the clerk of courts, but there is no indication that it was forwarded to
Appellant’s counsel in violation of Pa.R.Crim.P. 576(A)(4).
2 In the interim, Appellant pro se attempted to amend his petition to seek
additionally RRRI eligibility under Commonwealth v. Cullen-Doyle, 164
A.3d 1239 (Pa. 2017) (holding that a single, present conviction for a violent
crime does not constitute a history of violent behavior for purposes of
determining RRRI eligibility). Petition for Modification of Relief, 5/3/2018, at
¶ 2.

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eligibility to be without merit, and therefore concluded that Appellant failed

to prove ineffective assistance of counsel in that regard. Notice of Intent to

Dismiss, 6/25/2018, at 3-5 (unnumbered). Appellant’s counsel did not file a

response.3 On July 30, 2018, the PCRA court dismissed Appellant’s petition.

      This timely-filed appeal followed.4 On appeal, Appellant presents one

question for our review: whether the PCRA court erred in dismissing

Appellant’s PCRA petition based upon Appellant’s eligibility for RRRI pursuant

to Cullen-Doyle, supra. Appellant’s Brief at 2.

      We begin with our standard of review.

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).



3Appellant pro se filed a response on July 12, 2018, and a notice of appeal
on July 13, 2018. Both documents were forwarded to counsel pursuant to
Rule 576(A)(4).
4 Appellant complied with Pa.R.A.P. 1925(b). In addition to a Pa.R.A.P.
1925(a) opinion, the PCRA court also referred this Court to its June 25, 2018
Notice of Intent to Dismiss memorandum.

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      Upon review of Appellant’s brief, it is clear that Appellant’s claim is

really comprised of two arguments: (1) Appellant’s sentence is illegal

because the trial court failed to make Appellant RRRI eligible contrary to

Cullen-Doyle; and (2) trial counsel was ineffective for failing to preserve

this claim in a post-sentence motion or direct appeal. Appellant’s Brief at 3-

4. Thus, we also keep the following in mind. “To establish ineffectiveness of

counsel, a PCRA petitioner must show the underlying claim has arguable

merit, counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner.”    Commonwealth v. Jones, 71 A.3d 1061,

1063 (Pa. Super. 2013) (citations omitted). “A failure to satisfy any prong

of the ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

      By way of background, the General Assembly codified the RRRI Act

(the Act), 61 Pa.C.S. §§ 4501-4512, in 2009.

      The Act is intended to encourage eligible offenders to complete
      Department of Corrections programs that are designed to reduce
      recidivism. Eligible offenders may also be able to take
      advantage of a reduced sentence. … [E]ligibility is conditioned, in
      relevant part, upon the absence of a “history of present or past
      violent behavior,” although the Act does not define that phrase.

Cullen-Doyle, 164 A.3d at 1240 (citations omitted).

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

criminal conspiracy and one count of burglary. At sentencing, the trial court

found Cullen-Doyle ineligible for RRRI. 164 A.3d at 1241. Cullen-Doyle filed

a post-sentence motion asking the court to reconsider his RRRI eligibility.

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The court denied the motion, finding Cullen-Doyle ineligible based upon his

conviction of burglary, a crime of violence, though “it was unclear whether

the court was referring to the present offense or another, earlier offense.”

Id.

      On appeal, the parties agreed that the record did not include a prior

burglary conviction, and consequently filed a joint motion to remand for the

lower court to clarify the basis for finding Cullen-Doyle ineligible for RRRI.

This Court denied that motion, concluding that remand for clarification was

unnecessary because Cullen-Doyle was ineligible for RRRI based on his

present burglary conviction. Id. at 1241 (citing Commonwealth v. Cullen-

Doyle, 133 A.3d 14, 16 n.4, 22 (Pa. Super. 2016)).

      Our Supreme Court granted further review to consider whether Cullen-

Doyle could be found ineligible for RRRI based solely on his present

conviction for a crime of violence.    Cullen-Doyle argued that the General

Assembly did not intend the Act to exclude from RRRI eligibility “first-time,

single-count offender[s.]”   Id. at 1241.      Our Supreme Court agreed.

Specifically, in interpreting the phrase “history of present or past violent

behavior” within the Act, our Supreme Court concluded that a single, present

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

behavior. Id. at 1244.

      Here, the PCRA court distinguished Cullen-Doyle from Appellant’s

case because Appellant’s ineligibility was based upon his prior juvenile


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adjudication of simple assault as a second-degree misdemeanor and his

continued violent criminal behavior into the present, not solely on his

present convictions.     Notice of Intent to Dismiss, 6/25/2018, at 4-5

(unnumbered).

      On appeal, Appellant does not argue that his juvenile adjudication

should not be considered in determining his RRRI eligibility.         Instead,

Appellant’s argument consists of the bald claim that “[t]here does not

appear to be any element of record to refuse RRRI eligibility to [Appellant]

as a matter of course[,]” and a conclusion that “[Appellant’s] prior record,

his exemplary record as an inmate[,] and the applicable case law all support

a designation of RRRI eligibility.” Appellant’s Brief at 3.

      Upon review, we agree with the PCRA court that Cullen-Doyle is

distinguishable because the trial court here did not rely solely on Appellant’s

present convictions in determining Appellant’s RRRI eligibility.       Rather,

Appellant’s prior juvenile adjudication of simple assault as a second-degree

misdemeanor, in addition to his present convictions, rendered him ineligible

pursuant to the Act. See 61 Pa.C.S. § 4503 (defining “eligible offender” for

RRRI as a defendant who, inter alia, has not been adjudicated delinquent of

a personal injury crime, excluding simple assault as a misdemeanor of the

third degree, and “[d]oes not demonstrate a history of present or past

violent behavior”).




                                      -6-
J-S09035-19

      Because Appellant has a history of past and present violent behavior,

based on his past adjudication of simple assault as a second-degree

misdemeanor and his present convictions for aggravated assault and REAP,

he was ineligible for RRRI.   Thus, his sentence is not illegal and his claim

that counsel was ineffective for failing to file a post-sentence motion or

direct appeal on this basis does not entitle him to relief because Appellant’s

underlying claim is without merit. See Daniels, supra (“A failure to satisfy

any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”).   Accordingly, the PCRA court did not err in dismissing

Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019




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