J-S48038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BILLY RAY HARDESTY                         :
                                               :
                       Appellant               :     No. 2528 EDA 2017


              Appeal from the Judgment of Sentence July 11, 2017
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0001683-2017


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

JUDGMENT ORDER BY PLATT, J.:                         FILED OCTOBER 18, 2018

        Appellant, Billy Ray Hardesty, appeals from the judgment of sentence

imposed following his guilty plea to burglary as a felony of the first degree and

receiving stolen property. He now claims he was eligible for the Recidivism

Risk Reduction Incentive program (RRRI).1 Appellant maintains this case is

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

The Commonwealth argues that Cullen-Doyle does not apply, because this

is not Appellant’s first conviction. We agree. Accordingly, we affirm.

        After a preliminary hearing, Appellant entered counseled, negotiated

guilty pleas to burglary and receiving stolen property. On appeal, Appellant


____________________________________________


1   61 Pa.C.S.A. §§ 4501–4512.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S48038-18


now asserts that he was eligible for RRRI even though he was convicted of

burglary, a felony of the first degree. (See Appellant’s Brief, at 11).

      Appellant raises one question on appeal:

            Whether Appellant was eligible for RRRI although the instant
      conviction was burglary, a felony of the first degree?

(Appellant’s Brief, at 5).

      Appellant’s challenge involves the interpretation of the RRRI statute.

“As the issue entails statutory interpretation, our review is de novo and

plenary.” Cullen-Doyle, supra at 1241 (citation omitted).

      Here, we observe that the Commonwealth reports that prior to his arrest

in the instant matter, Appellant was previously arrested seven times, and

pleaded guilty on each occasion. (See Commonwealth’s Brief, at 4). Three

of these occasions included guilty pleas to burglary as a felony of the first

degree.    (See id.) (citing CP-23-CR-0003281-2010, CP-23-CR-0003293-

2010, and CP-23-CR-0005339-2011). Notably, Appellant does not deny this

criminal record.

      The trial court confirms that it inquired into Appellant’s eligibility for

RRRI. (See Trial Court Opinion, 11/28/17, at 3). The Commonwealth stated

that Appellant was ineligible for RRRI. (See id.). Neither Appellant nor plea

counsel objected. The trial court also determined that Appellant was not RRRI

eligible. (See id.) (citing N.T. 7/11/17, at 16); (see also Trial Ct. Op., at 7-

10). Furthermore, on appeal, the Commonwealth notes Appellant’s three prior

guilty pleas in its brief. (See Commonwealth’s Brief, at 4). Appellant did not

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file a reply brief. The Commonwealth maintains that in light of Appellant’s

three prior guilty pleas to burglary as a felony of the first degree, Cullen-

Doyle is “neither controlling nor influential,” because it did not address repeat

burglary offenders. (Id. at 7). We agree.

      As already noted, Cullen-Doyle addresses only an instant first offense.

See Cullen-Doyle, supra at 1240. Appellant does not assert that this is his

first or only offense. To the contrary, he never disputes his prior convictions.

In fact, Appellant failed to make any other effort to challenge his conviction

record, refute the Commonwealth, or deny the ineligibility conclusion of the

trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




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