J-S13033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                 Appellee                       :
                                                :
                     v.                         :
                                                :
RYAN COREY SELBY,                               :
                                                :
                 Appellant                      :   No. 1299 WDA 2018

        Appeal from the Judgment of Sentence Entered August 7, 2018
              in the Court of Common Pleas of Venango County
            Criminal Division at No(s): CP-61-CR-0000509-2016

BEFORE:       BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED MAY 21, 2019           F

       Ryan Corey Selby (Appellant) appeals from the judgment of sentence

imposed following the revocation of his parole and probation. Specifically,

Appellant challenges the trial court’s determination that he was not eligible

for the Recidivism Risk Reduction Incentive (RRRI) Act1 program.              Upon

review, we vacate the judgment of sentence and remand for the imposition

of an RRRI minimum sentence.


       On August 25, 2016, Appellant pleaded guilty in Venango County to

one count each of flight to avoid apprehension (listed as “count 1”) and

criminal mischief (listed as “count 4”). On October 11, 2016, Appellant was

sentenced to 24 months’ probation.             Subsequent to the imposition of this

____________________________________________


1   See generally 61 Pa.C.S. §§ 4501–4512.




* Retired Senior Judge assigned to the Superior Court.
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sentence, Appellant was found to be in violation of his probationary terms,

and on January 2, 2018, following a Gagnon II2 hearing, Appellant’s

probation was revoked. On February 2, 2018, Appellant was re-sentenced

to a term of incarceration of not less than 100 days and not more than 24

months less one day, followed by two years’ probation.

        On May 4, 2018, the Commonwealth filed a petition to revoke

Appellant’s parole and probation. On May 24, 2018, Appellant proceeded to

a Gagnon II hearing, where he stipulated to multiple technical violations.3

See Order, 5/24/2018. That same day, the trial court revoked Appellant’s

parole and probation, and on August 7, 2018, Appellant was re-sentenced to

one to two years’ incarceration at count 1 and ordered to serve out the




____________________________________________


2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3   Specifically, Appellant

        violated the condition not to change his residence without
        written permission of the parole and probation supervision staff.
        Second, [Appellant] violated the condition to pay his monthly
        supervision. Third, [Appellant] was not to use illegal controlled
        substances or narcotics or dangerous drugs without a valid
        prescription and he was not [to] possess any drug paraphernalia,
        and was not [to] associate with persons known to possess or use
        illegal controlled substances, however, [Appellant] admitted to
        using crystal methamphetamine and associated with others who
        were smoking marijuana.

Trial Court Opinion, 10/25/2018, at 1 n.1.



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balance of his sentence4 at count 4.           The trial court determined Appellant

was not RRRI eligible. N.T., 8/7/2018, at 21.

        No post-sentence motions were filed, and on September 6, 2018,

Appellant timely filed a notice of appeal.5 Appellant presents the following

question for our review: “Whether the [trial] court erred as a matter of law

when the Court did not make [Appellant] eligible for RRRI.” Appellant’s Brief

at 6.6 We review this claim mindful of the following.

        A challenge to a court’s failure to impose an RRRI sentence
        implicates the legality of the sentence. It is legal error to fail to
        impose a[n] RRRI minimum on an eligible offender. Thus, as
        statutory interpretation implicates a question of law, our scope
        of review is plenary and our standard of review is de novo.

Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016)

(citations and quotation marks omitted). “The RRRI Act permits offenders

who exhibit good behavior and who complete rehabilitative programs in

prison to be eligible for reduced sentences.” Commonwealth v. Hansley,

47 A.3d 1180, 1186 (Pa. 2012). Specifically, the RRRI 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
____________________________________________


4The trial court found Appellant’s maximum expiration date to be October
24, 2019. See Order, 8/7/2018.

5   Both Appellant and the trial court complied with Pa.R.A.P. 1925.

6   The Commonwealth did not file a brief.



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              part, upon the absence of a “history of present or
              past violent behavior,” although the [RRRI] Act does
              not define that phrase.

Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1240 (Pa. 2017)

(citations omitted). See also 61 Pa.C.S. § 4503.

       In this case, the trial court found Appellant RRRI ineligible based

solely on a prior conviction for resisting arrest.7   See Trial Court Opinion,

10/25/2018, at 3 (“[A] conviction for resisting arrest [is considered a crime

of] ‘violent behavior’ for purposes of rendering [Appellant] ineligible under

the RRRI [Act].”) (citation omitted). While Appellant acknowledges that his

resisting arrest conviction constitutes a crime of violence for purposes of

determining RRRI eligibility,8 Appellant argues that this single conviction is

inadequate to constitute a “history” pursuant to our Supreme Court’s holding

in Cullen-Doyle.       Appellant’s Brief at 13-14 (“This is the only conviction

that would preclude [Appellant] from eligibility for the program.         It is

Appellant’s position that one conviction for an offense does not a history

make.”).     Thus, the only issue before this Court is whether one prior

conviction for resisting arrest, a non-enumerated crime of violence, without

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7 According to Appellant, he was convicted of resisting arrest in 2015.
Appellant’s Brief at 13.

8 Indeed, this Court has previously determined that resisting arrest is a
crime of violence within the meaning of the RRRI statute. Finnecy, 135
A.3d at 1034-37.




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a present crime of violence,9 constitutes a “history of present or past violent

behavior.” For the reasons that follow, we conclude it does not.

       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.          Cullen-Doyle, 164 A.3d at 1241.

Cullen-Doyle filed a post-sentence motion asking the court to reconsider his

RRRI eligibility. The court denied the motion, stating that Cullen-Doyle was

ineligible based upon his conviction of burglary, a crime of violence, although

“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. (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
____________________________________________


9 Neither at sentencing nor on appeal has Appellant, the Commonwealth or
the trial court asserted that the crimes Appellant was resentenced on,
criminal mischief and flight to avoid apprehension, constitute crimes of
violence under the RRRI Act.



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conviction for a crime of violence. Upon review, our Supreme Court found

that the reference in the RRRI Act “to a ‘history of present or past violent

behavior,’ … to be materially ambiguous, thereby implicating recourse to the

rules of statutory construction.” Cullen-Doyle, 164 A.3d at 1242 (citation

and footnote omitted). Ultimately, the Court determined that the RRRI Act’s

“underlying purpose and rationale, examined in the context of the relevant

legislative history, demonstrate that the General Assembly did not intend to

preclude eligibility” for defendants like Cullen-Doyle, and set forth the

following reasons. Id.

           First, the stated purpose of the [RRRI] Act, which was
     enacted as part of a broader initiative to reform the penal
     system, is to “encourage eligible offenders ... to participate in ...
     programs ... that reduce the likelihood of recidivism.” 61
     Pa.C.S. § 4504(b). Although the enactment does not contain any
     language expressly relating to first-time offenders or penalizing
     recidivism as such, a commonly accepted corollary to the [RRRI]
     Act’s express purpose of reducing recidivism is that first-time
     offenders are usually more amenable to reform than inmates
     who have persisted in criminal conduct. …

            Against this backdrop, use of the word “history” assumes
     greater significance because it evidences an intent to render
     ineligible individuals with “an established record or pattern” of
     violent behavior. WEBSTER’S NEW COLLEGE DICTIONARY 537
     (3d ed. 2008) (defining “history” as “an established record or
     pattern”). Indeed, we believe this understanding engenders the
     most cogent and natural interpretation of the statute, since it
     permits a sentencing court to assess whether an offender has an
     established record or pattern of past or present violent behavior.
     As such, it can be fairly inferred that, in aiming to reduce
     recidivism, the Legislature sought to offer greater reform
     opportunities for first-time offenders than for repeat offenders.

          Further, [a narrower reading of the RRRI Act] results in
     imposing eligibility requirements that are so stringent that a

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      large number of individuals who could potentially reform through
      participation in RRRI programming will be prevented from
      participating, given that a single instance of “violence,” broadly
      construed, would be disqualifying. If that had been the General
      Assembly’s objective, it could have articulated such intent with a
      definition of “eligible offender” that expressly precluded any
      instance of a conviction for a violent crime. As has been noted by
      the Commission, as well as the Secretary of Corrections,
      eligibility criteria under the [RRRI] Act are already quite strict, to
      the point that the RRRI program’s potential utility is
      demonstrably diminished.

                                      ***

            Lastly, to the extent doubt remains concerning the proper
      interpretation of the language, the rule of lenity bolsters the
      conclusion that the single, present conviction for a violent
      crime does not constitute a history of violent behavior.
      See 1 Pa.C.S. § 1928(b)(1) (indicating that penal statutes are to
      be strictly construed); Commonwealth v. Booth, [ 766 A.2d
      843, 846 (Pa. 2001)] (“[W]here ambiguity exists in the language
      of a penal statute, such language should be interpreted in the
      light most favorable to the accused.”). Although not located in
      the Crimes Code or the Sentencing Code, the RRRI Act is a
      statute that has the effect of imposing a sentence; as such, it is
      subject to the rule of lenity. Thus, any ambiguity surrounding
      the meaning of the word “history” should be resolved in favor of
      those seeking admission into the program.

Cullen-Doyle, 164 A.3d at 1242-44 (footnotes omitted; emphasis added).

      We are cognizant that the specific holding of Cullen-Doyle – that a

single present conviction does not equate to a history of violent behavior –

does not govern the outcome in the instant case.          Id. at 1244.     Unlike

Cullen-Doyle, the crime of violence here is not one of the present crimes

for which Appellant is being re-sentenced; in this case, it was a single prior

conviction for resisting arrest, which, according to the trial court, rendered

Appellant ineligible for an RRRI sentence. Nonetheless, this Court is

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persuaded by the reasoning in Cullen-Doyle that the language of the RRRI

statute is ambiguous; that the word history refers to “an established record

of or pattern of past or present violent behavior;” that the “Legislature

sought to offer greater reform opportunities for first-time offenders than for

repeat offenders;” that construing the statute narrowly would disqualify too

many individuals based upon a mere “single instance of violence;” that all

crimes of violence should not be per se disqualifying; and that the rule of

lenity means the statute should be construed in favor of those seeking

admission to the program. Id. at 1241-44. In light of these considerations,

we conclude that when the current crime a defendant is being sentenced on

is not a crime of violence and the defendant has only a single prior

conviction for a non-enumerated crime of violence, that single prior

conviction does not constitute a history of past violent behavior and should

not, by itself, disqualify a defendant from participating in the RRRI program.

      Applying the foregoing to this case, we conclude the trial court erred in

finding Appellant RRRI ineligible based solely upon a single prior conviction

for resisting arrest. Such a finding does not comport with the purpose and

spirit of the RRRI Act, as interpreted by our Supreme Court in Cullen-

Doyle. As such, we vacate Appellant’s judgment of sentence and remand for

the trial court to impose an RRRI minimum sentence.

      Judgment    of   sentence   vacated.    Case   remanded.     Jurisdiction

relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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