J-S58035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID FRANCIS WRAY                         :
                                               :
                       Appellant               :   No. 721 WDA 2019

        Appeal from the Judgment of Sentence Entered August 28, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0005305-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 10, 2019

       Appellant, David Francis Wray, appeals from the Judgment of Sentence

entered in the Westmoreland County Court of Common Pleas following his

guilty plea to one count each of Corrupt Organizations, Criminal Conspiracy,

Receiving Stolen Property, Persons Not to Possess Firearms, Possession with

Intent to Deliver, and Possession of a Controlled Substance; and four counts

of Theft by Unlawful Taking.1 Appellant challenges the court’s determination

of his eligibility for sentencing under the Recidivism Risk Reduction Incentive

(“RRRI”) Act, 61 Pa.C.S. §§ 4501-4512. After careful review, we vacate and

remand for resentencing.




____________________________________________


1 18 Pa.C.S. § 911(b)(1); 18 Pa.C.S. § 911(b)(4); 18 Pa.C.S. § 903; 18
Pa.C.S. § 3925(a); 18 Pa.C.S. § 6105(a)(1)(b); 35 P.S. § 780-113(a)(30); 35
P.S. § 780-113(a)(30); and 18 Pa.C.S. § 921(a), respectively.
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        We glean the following facts from the trial court’s Opinion and certified

record. On March 5, 2018, Appellant entered a negotiated guilty plea to the

above crimes. The court ordered a pre-sentence investigation (“PSI”) report.

        A sentencing hearing was held on June 1, 2018 and August 28, 2018, in

which the parties addressed Appellant’s RRRI eligibility. The Commonwealth

argued that Appellant was ineligible under the RRRI Act because Fayette

County had charged Appellant with felony strangulation of Cynthia Ann

Cochran.2

        At sentencing, Ms. Cochran testified that on May 24, 2018, her brother,

James Cochran, punched her in the eye and she fell to the floor. She then

recalled that Appellant was on top of her, trying to choke her to death with a

broomstick and yelling that he was going to kill her.

        On August 28, 2018, the court sentenced Appellant to an aggregate

term of two to four years of incarceration, followed by a term of five years of

probation. The court determined that Appellant was precluded from RRRI

eligibility based on “[t]he nature and seriousness of [Ms. Cochran’s] allegation

and testimony.” N.T. Sentencing, 8/28/18, at 36.

        Appellant filed post-sentence motions, which the court denied. Appellant

timely appealed. Both Appellant and the trial court complied with Pa. R.A.P.

1925.
____________________________________________


2 At the August 28, 2018 hearing, the parties informed the court that the
felony strangulation charged had been dismissed. The Commonwealth stated
that the charge would be refiled. However, it does not appear that the charges
were ever refiled. Appellee’s Br. at 3.

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      On appeal, Appellant raises the following issue: “[w]hether the trial

court erred in denying the Appellant admission into the . . .[RRRI] program

despite the Appellant’s lack of disqualifying criminal history or history of

violence.” Appellant’s Br. at 2.

      A challenge to a RRRI eligibility determination implicates the legality of

the sentence. Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa. Super.

2014). “It is legal error to fail to impose a RRRI minimum on an eligible

offender.” Id. Review of a RRRI eligibility determination entails statutory

interpretation, for which our review is de novo and plenary. Commonwealth

v. Cullen-Doyle, 164 A.3d 1239, 1241 (Pa. 2017).

      The RRRI Act is a penal statute, which “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. § 4502.

See Commonwealth v. Chester, 101 A.3d 56, 60 n.6 (Pa. 2014). RRRI

eligible offenders who exhibit good behavior and who complete rehabilitative

programs in prison may receive reduced sentences. Commonwealth v.

Hansley, 47 A.3d 1180, 1186 (Pa. 2012).

      Eligibility for a RRRI sentence is codified in 61 Pa.C.S. § 4503. To qualify

for a RRRI minimum sentence, a convicted offender must establish that, inter




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alia, he “[d]oes not demonstrate a history of present or past violent behavior.”

61 Pa.C.S. § 4503(1).

       The Act does not define the phrase “history of present or past violent

behavior.” Cullen-Doyle, supra at 1240. Our Supreme Court has construed

Section 4503(1) as a catchall provision that “employs broad, general language

encompassing all violent behavior in addition to the enumerated crimes

contained in Section 4503(2)-(6).3” Chester, 101 A.3d at 63. Additionally, the

Court determined that the word “history” requires “an established record or

pattern” of violent behavior. Cullen-Doyle, supra at 1243.

       Appellant acknowledges that a felony strangulation constitutes violent

behavior. However, he asserts that a single allegation of violence does not

constitute a history of violence under the RRRI Act. See Appellant’s Br. at 7-

10. Appellant primarily relies on Cullen-Doyle, supra.

       In Cullen-Doyle, the defendant pleaded guilty to, inter alia, one count

of felony-one burglary. 164 A.3d at 1241. The trial court denied the

defendant’s request for a RRRI sentence; this Court affirmed, concluding that

he was ineligible for the RRRI program based solely on his present conviction

for burglary. Id. Our Supreme Court vacated this Court’s order and held that



____________________________________________


3 61 Pa.C.S. § 4503(2)-(6) enumerates crimes “that render an offender
ineligible to receive a reduced minimum sentence[,] including offenses
involving a deadly weapon, certain personal injury crimes, certain sexual
offenses, and certain drug offenses[.]” Commonwealth v. Chester, 101
A.3d 56, 57 (Pa. 2014).

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a “single, present conviction for a violent crime does not constitute a history

of violent behavior.” Id. at 1244. The Court explained that the RRRI program’s

expressed purpose was to encourage eligible offenders to participate in the

program to reduce the likelihood of recidivism. Id. at 1242. Upon reviewing

the legislative history of the Act, the Court deduced that the Legislature

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

repeat offenders.” Id. at 1243. Thus, the Court reasoned if it were to broadly

construe Section 4503 to render a defendant ineligible for the RRRI program

based on a “single instance of violence,” it would impose eligibility

requirements that are “so stringent that a large number of individuals who

could potentially reform through participation in the RRRI programming will

be prevented from participating[,]” and would thus, diminish the program’s

potential utility. Id.

      The reasoning in Cullen-Doyle is applicable here. To find that a single

allegation of a crime of violence demonstrates a history of violent behavior

does not comport with the purpose of the RRRI Act—to reduce the likelihood

of recidivism. Therefore, we conclude that the single allegation against

Appellant for a violent act does not constitute a history of present or past

violent behavior under the RRRI Act so as to render Appellant ineligible for a

RRRI sentence.

      Accordingly, we vacate Appellant's judgment of sentence and remand

for consideration of Appellant’s eligibility for a RRRI sentence.


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      Judgment of sentence vacated. Case remanded for consideration of

Appellant’s eligibility for a RRRI sentence. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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