J-S57024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :         PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ANDRE LAVONE JONES,                        :
                                               :      No. 1331 EDA 2017
                       Appellant

             Appeal from the Judgment of Sentence March 17, 2017
               in the Court of Common Pleas of Delaware County,
              Criminal Division at No(s): CP-23-CR-0006129-2010

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 26, 2018

       Andre Lavone Jones (“Jones”) appeals from the judgment of sentence

imposed following a Gagnon II1 hearing, wherein the trial court found him in

violation of the terms of his probation, and sentenced him to 18 to 36




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1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation
hearings). “[W]hen a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation hearing, a
Gagnon I hearing, that probable cause exists to believe that a violation has
been committed. Where a finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is required before a final
revocation decision can be made.” Commonwealth v. Allshouse, 969 A.2d
1236, 1240 (Pa. Super. 2009) (citations omitted).
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months in prison. We vacate in part, and remand.2

              On January 4, 2011, Jones entered a plea of guilty to the charge

of conspiracy to commit robbery.3 He was sentenced to 11½ to 23 months in

prison, followed by three years’ probation. On July 5, 2012, Jones was found

in violation of his parole,4 and sentenced to 395 days’ confinement, followed

by three years of probation. On September 12, 2015, after Jones was released

on probation, he was arrested in Philadelphia County for theft by unlawful

taking, receiving stolen property, carrying firearms without a license, and

carrying firearms in Philadelphia.5 Jones subsequently pled guilty, on January

5, 2017, to receiving stolen property and carrying firearms without a license.

The Commonwealth withdrew the remaining charges.              The trial court


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2  Previously, Jones’s counsel had filed a Petition to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738 (1967). This
Court denied the Petition, and directed counsel to submit an advocate’s brief
or a new Anders brief within thirty days of the date of our Memorandum, as
we had identified a potentially non-frivolous issue. Counsel has filed an
advocate’s brief, and the Commonwealth has filed a response. Accordingly,
we now address the remaining issue that Jones presents for our review.

3See 18 Pa.C.S.A. § 903. Jones also had been charged with robbery, but that
count was nolle prossed.

4The certified record does not indicate the date on which Jones was released
on parole.

5 See Docket Number CP-51-CR-0011081-2015. For the case that is the
subject of this appeal, Jones was charged under the name Andre Lavone
Jones. For the Philadelphia case in which he was charged while on probation,
Jones used the alias Andrew L. Jackson.



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sentenced Jones to a prison term of two to four years, followed by five years

of probation, and Jones was held to be eligible to serve his sentence in

motivational boot camp, but ineligible for the Recidivism Risk Reduction

Incentive (“RRRI”) Act program.

      On March 17, 2017, the Delaware County trial court held a Gagnon II

hearing, at which the court found that Jones had violated his probation. At

the hearing, Jones’s counsel represented that, “as a result of the conviction

out of Philadelphia, they made a stipulation for him to be allowed to be eligible

to boot camp[.]”        N.T., 3/17/17, at 4.6        Jones’s counsel then clarified,

“[Jones’s] impression is that Philadelphia made him eligible.”          Id. at 4-5.

Jones’s counsel requested that the revocation court “put something in there

that would make him still eligible for boot camp so he wouldn’t lose that – the

access to that.” Id. at 4.

       After the court replied that Jones was “ineligible for boot camp,” the

prosecutor stated, “Philadelphia could waive it, Your Honor, could waive that

ineligibility, but under the strict guidelines of” the RRRI Act, Jones is ineligible

“unless the Commonwealth waived it [in the Delaware County case], which

we are not.”      N.T., 3/17/17, at 4-5.         The revocation court responded as

follows:



____________________________________________


6The notes of testimony for the Philadelphia guilty plea hearing are not in the
certified record.


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      I’m reading all the boot camp guidelines, and it says the Judge
      must indicate in [the] sentencing order that to be considered for
      boot camp, you need to apply, but the Department of Corrections
      makes the final determination. However, it’s my reading of the
      Information that with these prior charges and the fact that your
      original case here is Criminal Conspiracy to Robbery, that they’re
      not going to – they’re not going to accept you. You’re not eligible,
      and they’re not going to accept you for boot camp anyhow based
      on what you have.

Id. at 5-6.

      The revocation court ultimately found Jones ineligible for RRRI, because

conspiracy to commit robbery is a crime expressly ineligible for an RRRI

sentence under 61 Pa.C.S.A. § 4503.        N.T., 3/17/17, at 4–7.    The court

sentenced Jones to a period of 18 to 36 months of incarceration, consecutive

to Jones’s sentence for his Philadelphia convictions.     Cert. of Sentencing,

3/17/17, at 1. Jones did not file a post-sentence motion.

      Jones timely appealed, and, on April 27, 2017, Jones’s counsel filed a

statement of intent to file an Anders brief. He subsequently filed an Anders

brief on July 10, 2017, stating that the appeal was wholly frivolous. Following

a remand by this Court, counsel has filed an advocate’s brief on behalf of

Jones, and presents the following claim for our review: “Did the trial court err

in imposing a sentence on [] Jones that specified that he did not qualify and

could not serve his sentence in a boot camp program?” Brief for Appellant at

8.

      Jones argues that the sentencing court erred in concluding that his

conviction of criminal conspiracy to commit robbery rendered him ineligible to


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serve his sentence in a boot camp program. Id. at 13. Jones asserts that his

conviction of criminal conspiracy to commit robbery, under 18 Pa.C.S.A.

§ 903, “is not included on the list of offenses that exclude a defendant from

eligibility to participate in such a program and no waiver by the

Commonwealth is required for him to do so.”           Brief for Appellant at 13.

According to Jones, the statute sets forth the specific crimes that render a

defendant ineligible for motivational boot camp. Id. As criminal conspiracy

is not included on the list, Jones contends that the trial court erred in

concluding that he is ineligible for boot camp. Id.

      The claim raised by Jones involves statutory construction, which is a

question of law; thus, our review is plenary. Commonwealth v. Garzone,

34 A.3d 67, 74 (Pa. 2012). In interpreting statutes, we are guided by the

Statutory Construction Act. 1 Pa.C.S.A. §§ 1501-1991.

      The object of all statutory interpretation “is to ascertain and effectuate

the intention of the General Assembly” and each statute shall be construed, if

possible, to give effect to all of its provisions.   Id. § 1921(a).   “The best

indication of the General Assembly’s intent is the plain language of the

statute.” Commonwealth v. Chester, 101 A.3d 56, 62 (Pa. 2014). When

the statutory language is free from ambiguity, a court should not disregard

the letter of the statute in order to pursue its spirit. 1 Pa.C.S.A § 1921(b);

Commonwealth v. Cooper, 27 A.3d 994, 1003 (Pa. 2011). Consequently,

only when the words of a statute are ambiguous should a reviewing court seek


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to ascertain the intent of the General Assembly through consideration of the

various factors found in Section 1921(c). Chester, 101 A.3d at 63 (citing 1

Pa.C.S.A. § 1921(c)).   Of particular note, the Statutory Construction Act

instructs that “[e]xceptions expressed in a statute shall be construed to

exclude all others.” 1 Pa.C.S.A. § 1924. Further, penal provisions, such as

the ones at issue here, must be strictly construed. Id. § 1928(b)(1).

     “Motivational boot camp” is defined by statute as

     [a] program in which eligible inmates participate for a period of
     six months in a humane program for motivational boot camp
     programs which shall provide for rigorous physical activity,
     intensive regimentation and discipline, work on public projects,
     substance abuse treatment services licensed by the Department
     of Health, continuing education, vocational training, prerelease
     counseling and community corrections aftercare.

61 Pa.C.S.A. § 3903. Section 3904(b) requires the sentencing judge to

     employ the sentencing guidelines to identify those defendants who
     are eligible for participation in a motivational boot camp. The
     judge shall have the discretion to exclude a defendant from
     eligibility if the judge determines that the defendant would be
     inappropriate for placement in a motivational boot camp. The
     judge shall note on the sentencing order whether the defendant
     has been identified as eligible for a motivational boot camp
     program.

Id. § 3904(b).

     The motivational boot camp provisions define an “[e]ligible inmate,”

who may participate in the program, as follows:

     A person sentenced to a term of confinement under the
     jurisdiction of the Department of Corrections who is serving a term
     of confinement, the minimum of which is not more than two years
     and the maximum of which is five years or less, or an inmate who
     is serving a term of confinement, the minimum of which is not

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     more than three years where that inmate is within two years of
     completing his minimum term, and who has not reached 40 years
     of age at the time he is approved for participation in the
     motivational boot camp program. The term shall not include any
     inmate who is subject to a sentence the calculation of which
     included an enhancement for the use of a deadly weapon as
     defined pursuant to the sentencing guidelines promulgated by the
     Pennsylvania Commission on Sentencing, any inmate who has
     been convicted or adjudicated delinquent of any crime requiring
     registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to
     registration of sexual offenders) or any inmate with a current
     conviction or a prior conviction within the past ten years
     for any of the following offenses:

         18 Pa.C.S. § 2502 (relating to murder).

         18 Pa.C.S. § 2503 (relating to voluntary manslaughter).

         18 Pa.C.S. § 2506 (relating to drug delivery resulting in
         death).

         18 Pa.C.S. § 2901(a) (relating to kidnapping).

         18 Pa.C.S. § 3301(a)(1)(i) (relating to arson and related
         offenses).

         18 Pa.C.S. § 3502 (relating to burglary) in the case of burglary
         of a structure adapted for overnight accommodation in which
         at the time of the offense any person is present.

         18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
         robbery).

         18 Pa.C.S. § 3702 (relating to robbery of motor vehicle).

         18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii) or (4)(iii) (relating
         to drug trafficking sentencing and penalties).

61 Pa.C.S.A. § 3903 (emphasis added).

     Under the express language of the statute, an inmate convicted of

robbery is ineligible for motivational boot camp. Id. However, the General


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Assembly did not list the crime of criminal conspiracy, 18 Pa.C.S.A. § 903, as

an offense the conviction of which renders an inmate ineligible for motivational

boot camp. Because the General Assembly chose not to specifically include

criminal conspiracy as an offense rendering an inmate ineligible for

motivational boot camp, it follows that this choice was intentional.     See 1

Pa.C.S.A. § 1924 (providing that that “[e]xceptions expressed in a statute

shall be construed to exclude all others.”). Thus, we conclude that Jones’s

conviction of criminal conspiracy does not render him ineligible for

motivational boot camp.

        Our analysis is similar to that employed by our Supreme Court in

Commonwealth v. Hansley, 47 A.3d 1180 (Pa. 2012). In Hansley, the

Supreme Court considered whether the appellant was ineligible for sentencing

to an RRRI program,7 because he was subject to mandatory minimum

penalties of imprisonment for drug trafficking under 18 Pa.C.S.A. § 6317

(setting forth sentences for offenses in drug-free zones), and § 7508(a)(3)(ii).

Hansley, 47 A.3d at 1183. Our Supreme Court observed that the RRRI Act,

when defining the term “eligible offender” in 61 Pa.C.S.A. § 4503, expressly

designated several mandatory minimum terms from 18 Pa.C.S.A. § 7508(a)

as ineligible for RRRI, but did not designate as RRRI ineligible the particular

mandatory term from Section 7508(a), under which the appellant had been



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7   See 61 Pa.C.S.A. §§ 4501 et seq.

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sentenced.    Hansley, 47 A.3d at 1188.          The Supreme Court ultimately

concluded that the mandatory minimum penalty in question, having not been

listed as ineligible in the RRRI Act, did not disqualify the appellant from

eligibility. Id. at 1188-89. In so holding, the Supreme Court explained that

      [t]he RRRI Act eligibility provision is detailed, intricate, and plain;
      by its terms, [the defendant] is an eligible offender. Moreover,
      the intricate construct reveals that the General Assembly made
      very specific judgments about which offenders and offenses were
      eligible. It did not exclude all drug offenders, or even all drug
      offenders subject to mandatory sentences. [The defendant’s]
      circumstances qualify.

Hansley, 47 A.3d at 1188-89.

      Similarly, the motivational boot camp eligibility provision, at issue

herein, is “detailed, intricate, and plain[.]”    Id. at 1188.     Moreover, this

intricate construct reveals that the General Assembly made very specific

judgments about which offenders and offenses were eligible, and chose not to

list criminal conspiracy as an offense that would render the inmate ineligible.

Consequently, under the plain language of the statute, Jones is an eligible

inmate. See 61 Pa.C.S.A. § 3903.

      Accordingly, we conclude that the trial court erred in determining that

Jones’s past conviction for criminal conspiracy rendered him ineligible for

motivational boot camp under 61 Pa.C.S.A. § 3903.           Thus, we vacate the

judgment of sentence and remand for reconsideration of Jones’s eligibility for

motivational boot camp.




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        Judgment of sentence vacated in part.       Case remanded for further

proceedings consistent with this Memorandum. Superior Court jurisdiction is

relinquished.

        Judge Solano did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/18




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