Com. v. Trusty, K. ( 2018 )

J-S10043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KEVIN L. TRUSTY :
: No. 2220 EDA 2017
Appellant
Appeal from the Judgment of Sentence June 1, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001394-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KEVIN L. TRUSTY :
: No. 2222 EDA 2017
Appellant
Appeal from the Judgment of Sentence June 1, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001395-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KEVIN L. TRUSTY :
: No. 2223 EDA 2017
Appellant
Appeal from the Judgment of Sentence June 1, 2017
J-S10043-18
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001396-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KEVIN L. TRUSTY :
: No. 2224 EDA 2017
Appellant
Appeal from the Judgment of Sentence June 1, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001397-2017
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 13, 2018
Appellant Kevin L. Trusty appeals from the judgments of sentence
entered following his negotiated guilty plea to burglary-overnight
accommodation, no person present1 in four separate matters.2 Appellant
asserts that the trial court erred by failing to properly consider his eligibility
for a Recidivism Risk Reduction Incentive (RRRI)3 sentence. We affirm.
In February 2017, Appellant confessed to having committed multiple
burglaries in Delaware County, in which he would shatter the glass of windows
____________________________________________
1 18 Pa.C.S. § 3502(a)(2).
2 By an order dated August 17, 2017, the appeals in each matter were
consolidated. See Pa.R.A.P. 513.
3 61 Pa.C.S. §§ 4501-4512.
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or doors of homes, proceed to the bedrooms, and remove jewelry and cash.
On June 1, 2017, Appellant entered a negotiated guilty plea in each of the four
matters, regarding seven different incidents. The same day, the court
sentenced Appellant in accordance with the plea agreement to an aggregate
sentence of twenty to fifty years’ incarceration without eligibility for RRRI.
Appellant filed a timely notice of appeal and timely court-ordered
Pa.R.A.P. 1925(b) statement. The trial court filed a responsive opinion.
Appellant raises the following issue for our review:
The trial court committed non-waivable error when it illegally
sentenced [Appellant] to a minimum of twenty years and
maximum of fifty years[’] incarceration, without properly
considering eligibility for the Recidivism Risk Reduction
Incentive[.]
Appellant’s Brief at 9.
Appellant’s issue raised on appeal implicates the legality of his sentence.
See Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010)
(indicating that when “the trial court fails to make a statutorily required
determination regarding a defendant’s eligibility for an RRRI minimum
sentence as required, the sentence is illegal”). Accordingly, it is a non-
waivable issue. Id. Because RRRI eligibility “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.” Commonwealth v. Chester, 101
A.3d 56, 60 (Pa. 2014) (citation omitted).
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Appellant argues that the trial court failed to properly analyze whether
he was eligible for an RRRI sentence. In support of this argument, Appellant
relies upon the decision in Robinson.
In Robinson, the trial court determined that merely because the
defendant agreed to a negotiated plea, she was ineligible for an RRRI
sentence. Robinson, 7 A.3d at 873. On this basis, the trial court in
Robinson did not specify an RRRI sentence. Id. This Court vacated the
judgment of sentence and remanded to have the trial court consider whether
the defendant was eligible for RRRI. Id. at 875.
Robinson is inapposite to Appellant’s case. Instantly, the trial court
specifically found that Appellant was not entitled to an RRRI sentence because
of the type of crime he committed. See Chester, 101 A.3d at 64-65 (holding
that a conviction for first-degree burglary is “violent behavior” for purposes of
RRRI). Thus, Robinson does not warrant relief.
Appellant also claims that pursuant to Commonwealth v. Cullen-
Doyle, 164 A.3d 1239 (Pa. 2017), he is not barred from RRRI participation.
Appellant argues that he has “no predicate history of violent behavior,” since
“[i]t was the burglary spree [for which he pled guilty] that the [t]rial [c]ourt
opinion relies on to disqualify him.” Appellant’s Brief at 15.
In Cullen-Doyle, our Supreme Court held that a single conviction for
first-degree burglary, by itself, did not disqualify the defendant from RRRI
eligibility. See Cullen-Doyle, 164 A.3d at 1244. The Court found the RRRI
statute’s reference to a “‘history of present or past violent behavior,’ 61
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Pa.C.S. § 4503, to be materially ambiguous . . . .” Id. at 1242. In interpreting
this phrase, the Court determined that “it can be fairly inferred that in aiming
to reduce recidivism, the Legislature sought to offer greater reform
opportunities for first time offenders . . . .” Id. at 1243.
The Court further found that since the list of offenses disqualifying one
from RRRI eligibility does not include burglary, this “suggests the Legislature
did not intend for all crimes of violence to be disqualifying in and of
themselves.” See Cullen-Doyle, 164 A.3d at 1243-44. On this basis, the
Court held that “the rule of lenity bolsters the conclusion that the single,
present conviction for a violent crime does not constitute a history of violent
behavior.” Id. at 1244 (emphasis added).
Cullen-Doyle is distinguishable from the instant matter, however, and
Appellant admits as much. See Appellant’s Brief at 15 (conceding “[Appellant]
doesn’t come under Cullen-Doyle because of [his] multiple pleas”). Indeed,
Appellant pled guilty to multiple first-degree burglaries. Accordingly, the
sentencing court properly assessed that Appellant has an established “history
of present or past violent behavior,” which disqualifies him from eligibility for
an RRRI sentence. 61 Pa.C.S. § 4503; see Cullen-Doyle, 164 A.3d at 1243.
Having discerned no error of law, we affirm the judgments of sentence.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/18
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