J-A27016-15

                                2016 PA Super 10



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                    v.

SEAN CULLEN-DOYLE,

                          Appellant                  No. 1711 WDA 2014


        Appeal from the Judgment of Sentence of August 26, 2014
             In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0000261-2014, CP-02-CR-0001018-
   2014, CP-02-CR-0002489-2014, CP-02-CR-0002529-2014, CP-02-CR-
                  0003271-2014, CP-02-CR-0004050-2014


BEFORE: BOWES, OLSON & STABILE, JJ.

OPINION BY OLSON, J.:                              FILED JANUARY 21, 2016

      Appellant, Sean Cullen-Doyle, appeals from the judgment of sentence

entered on August 26, 2014 in the Criminal Division of the Court of Common

Pleas of Allegheny County, as made final by the denial of Appellant’s

post-sentence motion on October 7, 2014. After careful consideration, we

affirm.

      Between November 4, 2013 and December 5, 2013, Appellant and

another individual burglarized several residences within Allegheny County.

Following   Appellant’s   arrest,     the   Commonwealth   filed   six   separate

informations against Appellant.       Each information charged Appellant with

burglary, conspiracy, and theft-related offenses.      On August 26, 2014,

Appellant pled guilty to five counts of criminal conspiracy to commit
J-A27016-15



first-degree burglary1 and one count of first-degree burglary.2      Thereafter,

counsel for Appellant asked the trial court to consider Appellant’s eligibility

for sentencing pursuant to the Risk Recidivism Reduction Incentive Act

(RRRI), 63 Pa.C.S.A. § 4501, et seq. The court found that Appellant was not

eligible for placement in the RRRI program and sentenced Appellant to three

to six years’ imprisonment, followed by 15 years of probation.3              On

September 5, 2014, Appellant filed a motion asking the court to reconsider

Appellant’s eligibility for the RRRI program. By order entered on October 7,

2014, the trial court denied Appellant’s reconsideration request.4

____________________________________________


1
    18 Pa.C.S.A. §§ 903(c) and 3502(a)(2), (c)(1).
2
  18 Pa.C.S.A. § 3502(a)(1), (c)(1). More specifically, Appellant pled guilty
to criminal conspiracy to commit first-degree burglary at docket numbers
261-2014, 1018-2014, 2489-2014, 2529-2014, and 4050-2014.               See
generally, Orders of Sentence in 261-2014, 1018-2014, 2489-2014,
2529-2014, and 4050-2014, 8/26/14. Appellant pled guilty to first-degree
burglary at docket number 3271-2014. See Order of Sentence in 3271-
2014, 8/26/14. The Commonwealth withdrew all other charges filed against
Appellant.
3
  Appellant received a three- to six-year prison sentence for first-degree
burglary. In addition, Appellant received three years of probation for each
count of criminal conspiracy to commit first-degree burglary. The trial court
directed that each probationary sentence must be served consecutive to
each other and consecutive to Appellant’s term of incarceration.
4
  In its October 7, 2014 order, the trial court held that Appellant’s history of
violent behavior precluded his entry into the RRRI program. In particular,
the court declared that its ruling was based in part on our Supreme Court’s
decision in Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014), wherein
the Supreme Court concluded that first-degree burglary constituted violent
behavior that disqualified an individual from RRRI consideration, and in part
(Footnote Continued Next Page)


                                           -2-
J-A27016-15




                       _______________________
(Footnote Continued)

on Appellant’s prior first-degree burglary conviction. Specifically, the trial
court stated, “Based upon Chester and [Appellant’s] prior first-degree
burglary   conviction,    [Appellant’s]   [p]ost-[s]entence    [m]otion  [for
reconsideration] is [denied].” Trial Court Order, 10/7/14, at 1.

There is some confusion between the parties as to whether the trial court’s
reference to Appellant’s “prior first-degree burglary conviction” referred to
Appellant’s conviction in the instant case or to a conviction that arose from
previous criminal conduct. The court’s order does not clarify the basis of this
assessment.      Appellant’s brief asserts that he does not have a prior
conviction for first-degree burglary. Appellant’s Brief at 11. In its brief, the
Commonwealth contends that the trial court possessed a sentencing
guidelines form indicating Appellant’s commission of a prior first-degree
burglary. Commonwealth’s Brief at 12. The Commonwealth concedes,
however, that its own initial research failed to confirm Appellant’s prior
conviction for first-degree burglary.

Because of this confusion, the parties filed a joint motion to remand to
determine whether the trial court’s ruling was based, in part, on inaccurate
information concerning Appellant’s prior criminal record. That motion was
denied without prejudice to Appellant’s right to raise the issue in his brief.
As stated above, however, Appellant’s position on appeal is that he has no
prior conviction for first-degree burglary.

To resolve this issue, the Commonwealth suggests that we may affirm
Appellant’s judgment of sentence if we determine that Appellant’s
first-degree burglary conviction in the instant case is, itself, sufficient to
preclude Appellant’s entry into the RRRI program. In the alternative, the
Commonwealth requests a remand for further fact finding in the event we
conclude that a prior first-degree burglary conviction is necessary to defeat
Appellant’s entry into the RRRI program.

We have given careful consideration to the status of the record in this appeal
and we conclude that the record is sufficient as it stands to resolve the
issues surrounding Appellant’s qualification for the RRRI program. For the
reasons explained below, we are persuaded that Appellant is ineligible to
participate in the RRRI program regardless of a prior conviction for
first-degree burglary. Hence, we see no grounds to remand this case to the
trial court.



                                            -3-
J-A27016-15



      Appellant filed a notice of appeal on October 16, 2014.       On October

23, 2014, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant

timely filed his concise statement on November 6, 2014, preserving his

challenge to the trial court’s refusal to declare him eligible for entry into the

RRRI program.        On November 12, 2014, the trial court issued a

memorandum opinion that adopted its October 7, 2014 order as its

statement of reasons that support Appellant’s disqualification for RRRI

participation.

      Appellant raises a single issue for our review:

      Whether [Appellant] is eligible for the [RRRI] program [where]
      he is convicted of a single count of first-degree [b]urglary and
      has no prior convictions demonstrating a history of present or
      past violent behavior[?]

Appellant’s Brief at 4.

      Appellant claims on appeal that his lone conviction for one count of

first-degree burglary does not demonstrate “a history of present or past

violent behavior” that bars his eligibility under the RRRI Act. “As this issue

concerns a matter of statutory interpretation and is, thus, a pure question of

law, our standard of review is de novo and our scope of review is plenary.”

Chester, 101 A.3d at 60, citing School Dist. of Philadelphia v. Dep't of

Educ., 92 A.3d 746, 751 (Pa. 2014).




                                      -4-
J-A27016-15


     We begin our discussion by quoting at length a portion of our Supreme

Court’s recent decision in Chester that sets forth the legislative purpose

behind the RRRI Act as well as the entry requirements for that program.

     By way of background, 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. As
     part of achieving that aim, the RRRI Act requires the trial court
     to determine at the time of sentencing whether the defendant is
     an “eligible offender.” 61 Pa.C.S.A. § 4505(a). If the court finds
     the defendant to be an eligible offender, or if the prosecuting
     attorney waives the eligibility requirements under Section
     4505(b), the trial court must calculate minimum and maximum
     sentences, and then impose the RRRI minimum sentence, which
     “shall be equal to three-fourths of the minimum sentence
     imposed when the minimum sentence is three years or less,” or
     “shall be equal to five-sixths of the minimum sentence if the
     minimum sentence is greater than three years.” Id. § 4505(c).
     Furthermore, if an eligible offender “successfully completes the
     program plan, maintains a good conduct record and continues to
     remain an eligible offender,” he or she may “be paroled on the
     RRRI minimum sentence date unless the Board determines that
     parole would present an unreasonable risk to public safety or
     that other specified conditions have not been satisfied.” 37
     Pa.Code § 96.1(b).

     Importantly, in order to be eligible for an RRRI minimum
     sentence, the RRRI Act provides that a defendant must satisfy
     each of the following requirements, the first of which is presently
     at issue in the case at bar. Specifically, a defendant must
     establish that he:

        (1) Does not demonstrate a history of present or past
        violent behavior.

        (2) Has not been subject to a sentence the calculation of
        which includes an enhancement for the use of a deadly
        weapon as defined under law or the sentencing guidelines
        promulgated   by   the   Pennsylvania Commission      on

                                    -5-
J-A27016-15


       Sentencing or the attorney for the Commonwealth has not
       demonstrated that the defendant has been found guilty of
       or was convicted of an offense involving a deadly weapon or
       offense under 18 Pa.C.S. Ch. 61 (relating to firearms and
       other dangerous articles) or the equivalent offense under
       the laws of the United States or one of its territories or
       possessions, another state, the District of Columbia, the
       Commonwealth of Puerto Rico or a foreign nation.

       (3) Has not been found guilty of or previously convicted of
       or adjudicated delinquent for or an attempt or conspiracy to
       commit a personal injury crime as defined under section
       103 of the act of November 24, 1998 (P.L. 882, No. 111),
       [18 P.S. § 11.103] known as the Crime Victims Act, except
       for an offense under 18 Pa.C.S. § 2701 (relating to simple
       assault) when the offense is a misdemeanor of the third
       degree, or an equivalent offense under the laws of the
       United States or one of its territories or possessions,
       another state, the District of Columbia, the Commonwealth
       of Puerto Rico or a foreign nation.

       (4) Has not been found guilty or previously convicted or
       adjudicated delinquent for violating any of the following
       provisions or an equivalent offense under the laws of the
       United States or one of its territories or possessions,
       another state, the District of Columbia, the Commonwealth
       of Puerto Rico or a foreign nation:

         18 Pa.C.S. § 4302(a) (relating to incest).

         18 Pa.C.S. § 5901 (relating to open lewdness).

         18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
         pornography).

         Received a criminal sentence pursuant to 42 Pa.C.S.
         § 9712.1 (relating to sentences for certain drug
         offenses committed with firearms).

         Any offense for which registration is required under 42
         Pa.C.S. Ch. 97 Subch. H (relating to registration of
         sexual offenders).




                                   -6-
J-A27016-15


         (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.

         (6) Has not been found guilty or previously convicted of
         violating section 13(a)(14), (30) or (37) of the act of April
         14, 1972 (P.L. 233, No. 64), ... known as The Controlled
         Substance, Drug, Device and Cosmetic Act, where the
         sentence     was    imposed      pursuant       to    18    Pa.C.S.
         § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii)
         (relating to drug trafficking sentencing and penalties).

       61 Pa.C.S.A. § 4503 (emphasis added). Notably, the RRRI Act
       does not define what constitutes a “history of present or past
       violent behavior.”

Chester, 101 A.3d at 57-58.

       In Chester, our Supreme Court considered the meaning of the phrase

“history of present or past violent behavior” within § 4503(1) of the RRRI

Act. In that case, the defendant entered an open guilty plea in Lancaster

County to three counts of first-degree burglary and related charges following

his arrest for a series of burglaries that occurred in Lancaster, Chester, and

Delaware Counties.        While awaiting sentencing on the Lancaster County

charges, the defendant pled guilty and was sentenced in connection with the

same burglarious episode in Chester County, where he received a reduced

sentence pursuant to the RRRI Act.5 Thereafter, upon receiving his sentence

____________________________________________


5
  It was unclear from the record before the Supreme Court whether the
Chester County trial court found the defendant RRRI eligible or whether the
Commonwealth waived the RRRI eligibility requirements pursuant to 61
Pa.C.S.A. § 4505. See Chester, 101 A.3d at 59 n.2. In addition, although
(Footnote Continued Next Page)


                                           -7-
J-A27016-15


on the Lancaster County charges, the defendant requested an RRRI Act

minimum sentence based on his contention that his first-degree burglary

conviction in Chester County did not constitute a “history of present or past

violent behavior” that precluded his entry into the RRRI program under 61

Pa.C.S.A. § 4503(1).

      The trial court in Lancaster County denied the defendant’s request for

a sentence reduction under the RRRI Act and this Court affirmed.                On

appeal, our Supreme Court first considered whether first-degree burglary

constituted “violent behavior” as contemplated by the RRRI Act.                  In

examining this question, the Court recognized the long legal tradition that

treated burglary as a crime of violence by its very nature because of the

threat posed to citizens when confronted with intrusions into their homes.

Chester, 101 A.3d at 64-65.               Distinguishing first-degree burglary from

second-degree burglary, the Court further noted 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
                       _______________________
(Footnote Continued)

the defendant asserted that he had only a single first-degree burglary
conviction in Chester County, the Supreme Court’s review of the Chester
County criminal docket sheet revealed that the defendant was convicted of
three counts of first-degree burglary. See Id. at 59 n.4.



                                            -8-
J-A27016-15


motivational boot camp pursuant to 61 Pa.C.S.A. § 3903.”            Chester, 101

A.3d at 64.    Finally, the distinct treatment accorded first-degree burglary

under the Crimes Code added additional support to the Court’s conclusion

that first-degree burglary qualified as “violent behavior” under § 4503(1).

Id. at 64-65 (“Moreover, the Crimes Code treats first-degree burglary

distinctly   from     second-degree      burglary,   as    first-degree   burglary

contemplates    the    potential   for   confrontation,   whereas   second-degree

burglary does not.”). Based on these considerations, the Court held that, “in

light of Pennsylvania's long-standing view of burglary as a violent crime, as

well as the fact that first-degree burglary is treated distinctly, and more

severely, under Pennsylvania law, we have no hesitancy in concluding a

conviction for first-degree burglary constitutes ‘violent behavior’ under

Section 4503(1).” Id. at 65.

      After reaching this conclusion, the Court turned to the defendant’s

next contention that he did not engage in a “history” of violent behavior.

Ultimately, however, the High Court determined that it did not need to

decide whether a single conviction qualified as a “history of violent behavior”

under Section 4503(1) since the defendant’s multiple first-degree burglary

convictions in Chester County were “more than sufficient to form a ‘history’

of ‘violent behavior’ under Section 4503(1).” Id. Hence, the Supreme Court

affirmed the trial court’s refusal to recommend the defendant’s admission

into the RRRI program.


                                         -9-
J-A27016-15


      In light of Chester, Appellant does not dispute that burglary

constitutes a crime of violence under Pennsylvania law.        See Appellant’s

Brief at 8 (“There is no question that burglary is deemed to be a crime of

violence.”).   Appellant argues instead that the issue in this case is not

whether burglary is a crime of violence but whether a single conviction for

burglary constitutes a “history of present or past violent behavior.”       Id.

Appellant distinguishes Chester, pointing out that the defendant in that case

pled guilty to multiple counts of burglary in two separate court proceedings

in two separate counties. Thus, in Appellant’s view, Chester applies only in

situations where the defendant’s criminal record reveals a past history of

violent behavior or where the current case involves multiple convictions for

violent conduct.   Additionally, in view of the rehabilitative purposes of the

RRRI Act, Appellant asserts that the General Assembly never intended a

single conviction for burglary to constitute a history of violent behavior.

Appellant concludes that the trial court erred in finding him ineligible for the

RRRI program because this case involves only a single burglary conviction

and he has neither a past history of disqualifying convictions nor a present

history of multiple convictions.

      Because the question before us centers on the interpretation of
      the term “history of present or past violent behavior” within
      Section 4503(1) of the RRRI Act, we must turn to the Statutory
      Construction Act. 1 Pa.C.S.A. §§ 1501 et seq. As provided by
      that Act, the objective of all interpretation and construction of
      statutes is to ascertain and effectuate the intention of the
      legislature. Id. § 1921(a). The best indication of the General
      Assembly's intent is the plain language of the statute. Bayada

                                     - 10 -
J-A27016-15


       Nurses, Inc. v. Com. Dept. Labor and Indus., 8 A.3d 866,
       880 (Pa. 2010). When considering statutory language, “[w]ords
       and phrases shall be construed according to rules of grammar
       and according to their common and approved usage.” 1
       Pa.C.S.A. § 1903(a). If the words of a statute are clear and
       unambiguous, we should not look beyond the plain meaning of
       the statutory language “under the pretext of pursuing its spirit.”
       Id. § 1921(b). Accordingly, only when the words of a statute
       are ambiguous should a reviewing court seek to ascertain the
       intent of the General Assembly through consideration of the
       various factors found in Section 1921(c).       Id. § 1921(c);
       Bayada Nurses, 8 A.3d at 881.

Chester, 101 A.3d at 62-63 (parallel citations omitted).

       The issue in this appeal requires us to determine whether a single

first-degree burglary conviction constitutes “a history of present or past

violent   behavior”     as   that   phrase     is   used   in   § 4503(1).   In   such

circumstances, the Statutory Construction Act directs us to construe words

and phrases according to the rules of grammar and according to their

common and approved usage.             Citing Merriam-Webster’s online dictionary,

Appellant defines the word “history” as “an established record.”6 In addition,

he defines the word “present” to mean “existing or occurring now.”7

Applying these definitions in the current context, we conclude that § 4503(1)

precludes participation in the RRRI program where there is an established

____________________________________________


6
 See Appellant’s Brief at 10, citing http://www.merriam-
webster.com/dictionary/history.
7
 See Appellant’s Brief at 10, citing
http://www.google.com/?gw_rd=ssl#q=define+present.




                                          - 11 -
J-A27016-15


record of existing violent behavior. We therefore must consider whether the

trial court erred in excluding Appellant from the RRRI program under this

construction of § 4503(1).

      As stated above, questions of statutory interpretation ordinarily

involve questions of law.        However, the precise question raised by

Appellant’s RRRI eligibility represents a horse of a different color.         In

construing the scope of § 4503(1), the Chester Court declared that the

inclusion of general language regarding “violent behaviors” “reflect[ed] an

express choice by the legislature not to write an exclusive list of disqualifying

offenses, but, instead, to include Section 4503(1) as a broad, ‘catchall’

provision designed to encompass an array of behavior not explicitly provided

for in Section 4503's other provisions.”      Chester, 101 A.3d at 63.      This

passage suggests that, while the construction of the RRRI Act involves a

question of law, the predicate inquiry surrounding Appellant’s admission to

the RRRI program under § 4503(1) also implicates an exercise of the trial

court’s discretion. See 61 Pa.C.S.A. § 4505(a) (“At the time of sentencing,

the court shall make a determination whether the defendant is an eligible

offender.”); see also 61 Pa.C.S.A. § 4505(c) (“[i]f the court determines that

the defendant is an eligible offender”). As there is no doubt in this case that

the trial court rejected Appellant’s request to participate in the RRRI

program based upon an established record of admittedly violent behavior,

we perceive no abuse of discretion that entitles Appellant to relief.


                                     - 12 -
J-A27016-15


        Of course, Appellant’s quarrel is not that he did not commit a violent

act but that he has no “history” or sufficiently established record of violent

behavior.    In other words, Appellant’s claim focuses upon the quantity of

disqualifying behaviors that bar his admission to the RRRI program, not their

quality.    In support of his position, Appellant asserts that, “[i]f the

legislature intended to exclude all violent behavior offenses, it would have

simply said so without using the word[s] ‘history’ or ‘present or past.’”

Appellant’s Brief at 11 (emphasis added). In our view, this position conflicts

with the plain language of § 4503(1). Section 4503(1) does not distinguish

between violent behaviors that take place in the past and those that occur in

the present; both forms of violent conduct disqualify participation in the

RRRI program.8 Moreover, contrary to Appellant’s position, the use of the

phrase “present or past” to modify the term “violent behavior” logically (and

functionally) equates to “all violent behavior” since there can be no other

type of violent behavior than that which occurs either in the present or in the

past.    Thus, so long as the record reliably demonstrates an occurrence of


____________________________________________


8
   This observation overcomes Appellant’s claim that, “Appellant’s current
conviction can serve as establishing a history for a future sentencing, should
that occur, but a single, first-time conviction can never establish a [present]
‘history.’” Appellant’s Brief at 12. If a single conviction for first-degree
burglary is sufficient to establish a “past” history of violent behavior, it
follows that a single conviction for first-degree burglary demonstrates a
“present” history of disqualifying conduct. Any other reading defeats the
plain import of § 4503(1).



                                          - 13 -
J-A27016-15


violent behavior, the trial court does not abuse its discretion in rejecting an

application to the RRRI program.

      The legislature’s conscious election to craft an inclusive, catchall

provision that withholds RRRI treatment from individuals who have exhibited

violent conduct is vividly demonstrated in its use of the word “behavior”

rather than more specific terms such as “conviction,” “offense,” or “crime.”

At least one jurist on this Court has expressed this view:

      Moreover, I find that the majority's concentration on the
      definition of “Crime of violence” as it is defined in [42 Pa.C.S.A.
      § 9714 (commonly referred to as the recidivist statute)] is
      misplaced. In fact, I do not believe that the [RRRI Act's]
      reference to a “history of present or past violent behavior”
      necessarily equates to a prior criminal offense. There are myriad
      circumstances where violent behavior does not result in a
      criminal conviction, e.g., a mutual fight where neither party files
      a criminal complaint, an assault on a family member who
      refused to cooperate with the criminal investigation, an indicated
      claim of child abuse that lacked sufficient proof to proceed to
      trial, or where prosecution of a violent offense is barred by the
      statute of limitations. Nothing in the statute reveals an
      intent to limit the sentencing court's consideration under
      this subsection to convictions.             Instead, the broad
      statutory language encompasses any violent behavior
      regardless of criminal liability. I also note that the recidivist
      statute is punitive and was designed to impose harsh penalties
      upon a narrow class of repeat offenders. In contrast, the RRRI
      program was designed to grant leniency to non-violent offenders
      who could benefit from a program to reduce their risk of
      recidivism, and who do not pose a risk to the public upon their
      early release from prison.

Commonwealth v. Gonzalez, 10 A.3d 1260, 1266 (Pa. Super. 2010)

(Bowes, J., dissenting) (emphasis added).        We see no reason to read

limitations into § 4503(1) that conflict with the legislature’s clear intent to


                                    - 14 -
J-A27016-15


broadly define barriers that deny a violent offender’s entry into the RRRI

program.

       The legislature’s use of general terms to describe the disqualifying

conduct set forth in § 4503(1) persuades us that a single conviction for

first-degree    burglary,    an   admittedly       violent   act   under   long-standing

Pennsylvania law, is sufficient to establish a present history of violent

behavior. Hence, we conclude that the trial court did not error in denying

Appellant’s request for sentencing under the RRRI Act.9

       Judgment of sentence affirmed.




Judgment Entered.




____________________________________________


9
  The Commonwealth invites us to affirm the trial court based upon the
definition of a “crime of violence” set forth in 42 Pa.C.S.A. § 9714. Section
9714 defines first-degree burglary (overnight accommodation/person
present), codified at 18 Pa.C.S.A. § 3502(a)(1), as a crime of violence. It
further provides that criminal conspiracy to commit a § 3502(a)(1) burglary
shall also constitute a crime of violence. Based upon this provision, the
Commonwealth argues that Appellant’s guilty pleas to criminal conspiracy
support the trial court’s refusal to accept Appellant’s request for RRRI
consideration. This contention is unavailing. Our review of the record
confirms that Appellant pled guilty to five counts of criminal conspiracy to
commit burglary (overnight accommodation/person not present), which is
codified at 18 Pa.C.S.A. § 3502(a)(2).         Since this version of criminal
conspiracy is not included within § 9714, it does not support the trial court’s
determination.



                                          - 15 -
J-A27016-15


Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016




                          - 16 -
