Com. v. Genus, J. ( 2021 )

J-S07013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES GENUS :
:
Appellant : No. 726 WDA 2020
Appeal from the Judgment of Sentence Entered June 1, 2020
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000824-2019
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: April 1, 2021
Appellant, James Genus, appeals from the judgment of sentence
entered in the Court of Common Pleas of Venango County on June 1, 2020,
following his guilty plea to one count of possession of a controlled substance
with the intent to deliver. We affirm.
The trial court summarized the procedural history as follows:
On February 20, 2020[, Appellant] pled guilty to one count
of possession of intent to deliver a controlled substance in
violation of 35 [P.S.] § 780-11(a)[(30)], an ungraded felony. On
June 1, 2020, the [c]ourt sentenced [Appellant] to twenty-seven
to sixty months incarceration and found that he was not R.R.R.I.[1]
eligible.
On June 12, 2020, [Appellant] filed his Post-Trial Motion,
arguing that [Appellant] was indeed R.R.R.I. eligible and
____________________________________________
1 Recidivism Risk Reduction Incentive (“RRRI”) Act, 61 Pa.C.S. §§ 4501 et
seq.
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requesting a hearing on the matter of [Appellant’s] eligibility. In
his Post-Tr[ia]l Motion, [Appellant] made three contentions: (1)
under Commonwealth v. Cullen-Doyle, 640 Pa. 783 (2017), a
“single conviction for burglary, although a crime of violence, does
not constitute a ‘history’ of violent behavior for purposes of
determining a defendant’s eligibility [for R.R.R.I.]”; (2) ineligibility
based upon a history of violent behavior premised solely upon a
prior conviction for resisting arrest is contrary to law; and (3) that
the [c]ourt’s finding of ineligibility based upon use of a firearm in
a prior offense was improper, as “it is believed” that no firearm
was involved in [Appellant’s] prior offenses.
* * *
The Court denied [Appellant’s] Motion without a hearing on
June 24, 2020.[2]
____________________________________________
2 Appellant’s post-sentence motion was filed and docketed on June 12, 2020,
which was one day beyond the time permitted by Pa.R.Crim.P. 720(a). On
September 2, 2020, this Court issued a Rule to Show Cause why the appeal
should not be quashed as untimely. Rule to Show Cause, 9/2/20. We noted
therein that the judgment of sentence was entered on June 1, 2020, and
Appellant’s notice of appeal was filed July 20, 2020, “in excess of the 30-day
appeal period.” Id. (citing Pa.R.A.P. 903(a) and, inter alia, Commonwealth
v. Bilger, 803 A.2d 199, 202 (Pa. Super. 2002) (for the purposes of triggering
the appeal period, the filing of an untimely post-sentence motion is equivalent
to a complete failure to file a post-sentence motion.)).
In his response to the Rule, Appellant alleged he faxed the post-
sentence motion on the evening of June 11, 2020, the day it was due, in
keeping with Venango County Common Pleas Covid-19 policy and the
Executive Order related to Covid-19 issued by the Venango County President
Judge. Response to Rule to Show Cause, 9/17/20. We filed an order directing
Appellant to provide this Court with sufficient proof of the date his post-
sentence motion was faxed to the Venango Common Pleas Court. Order,
9/28/20. In his response, Appellant’s counsel indicated that he did “not have
in his possession the fax transmission sheet that the motion was fax-filed on
June 11, 2020.” Second Response to Rule to Show Cause, 10/7/20. Counsel
did provide the “relevant Covid-19 policy referenced in [his] September 17,
2020 response.” Id.; Order, 9/28/20. We note that the trial court did not
question the timeliness of the post-sentence motion and denied it on June 24,
2020. The issue raised therein is the precise issue raised herein. This Court
discharged the Rule to Show Cause and allowed the appeal to proceed.
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On July 20, 2020, [Appellant] filed his Notice of Appeal . . . .
On July 21, 2020, the [c]ourt directed [Appellant] to file a concise
statement of matters complained of on appeal in accordance with
Pa.R.A.P. 1925(b) within 21 days. The [c]ourt also granted
[Appellant’s] Motion to Proceed In Forma Pauperis on that date.
Both of these orders were docketed on July 21, 2020. On August
19, 2020, [Appellant] filed his Concise Statement. [Appellant] did
not request that the [c]ourt extend the time period in which
[Appellant] could file his Concise Statement.
Trial Court Opinion, 8/25/20, at unnumbered 1–3.
Appellant raises the following issue on appeal:
I. Did the trial court err in the determination that Appellant is
not Recidivism Risk Reducation [sic] Incentive (RRRI)
eligible?
Appellant’s Brief at 9.
We first determine whether Appellant’s issue is preserved for our review
because it is well-established that failure to comply with the minimal
requirements of the Pennsylvania Rules of Appellate Procedure will result in
the waiver of those issues on appeal. Commonwealth v. Schofield, 888
A.2d 771, 774 (Pa. 2005). Rule 1925(b) requires an appellant to file and
serve on the trial judge a concise statement of the errors complained of on
appeal no later than twenty-one days after entry of an order requesting the
statement. Failure to comply with this requirement will result in the automatic
waiver of appellate review of the issues raised in the untimely statement.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011); Commonwealth v.
Castillo, 888 A.2d 775, 779-80 (Pa. 2005).
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Here, Appellant’s counsel filed a late Pa.R.A.P. 1925(b) statement. The
trial court explained that Appellant’s Rule 1925(b) statement was due by
August 11, 2020, but was not filed until August 18, 2020. Trial Court Opinion,
8/25/20, at unnumbered 3. While the trial court determined that the issue,
therefore, was waived, it addressed the issue in full. Id.Our review of the record reveals that the Pa.R.A.P. 1925(b) statement
was due on August 11, 2020, but was not filed until August 19, 2020. Docket
number 8. Indeed, Appellant concedes that he filed the statement eight days
late. Appellant’s Brief at 18. Appellant argues, however, that although the
trial court held the issue to be waived, it addressed it in the alternative. Id.
at 19. Thus, he advocates against waiver.
We conclude that because the trial court has filed an opinion addressing
the issue presented in the late Rule 1925(b) concise statement, we will not
find the issue waived on this basis. See Commonwealth v. Rodriguez, 81
A.3d 103 (Pa. Super. 2013) (concise statement filed four days late did not
result in waiver where trial court issued opinion addressing issues raised
therein); Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)
(where the appellant filed an untimely Pa.R.A.P. 1925(b) statement one day
after it was due, appellate court may decide appeal on merits if trial court had
adequate opportunity to prepare opinion addressing issues raised on appeal).
We also decline to find waiver because Appellant’s issue implicates the
legality of the sentence imposed. Commonwealth v. Tobin, 89 A.3d 663,
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670 (Pa. Super. 2014). When an issue presents a question of statutory
construction and implicates the legality of the sentence, our standard of
review is de novo and the scope of our review is plenary. Commonwealth
v. Northrip, 985 A.2d 734, 736 (Pa. 2014).
In Commonwealth v. Barbaro, 94 A.3d 389 (Pa. Super. 2014), we
explained the RRRI Act and the requirements it imposes on sentencing courts
in this Commonwealth:
The RRRI Act
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. Gonzalez, 10 A.3d
1260, 1262 (Pa. Super. 2010), appeal denied, 610 Pa. 616, 21
A.3d 1190 (2011). Under the RRRI Act:
(1) ... a sentencing court must designate a sentence
as an RRRI sentence whenever the defendant is
eligible for that designation, and (2) a defendant is
eligible for that designation if he has not been
previously convicted of certain enumerated offenses
and “does not demonstrate a history of present or
past violent behavior.”
Gonzalez, 10 A.3d at 1262 (quoting 61 Pa.C.S.A. § 4503;
footnote omitted; emphasis in original). Therefore, the RRRI Act
requires the sentencing court to determine whether the defendant
is an “eligible offender.” 61 Pa.C.S.A. § 4505(a). The RRRI Act
defines an “eligible offender,” in part, as:
“Eligible Offender.” A defendant or inmate convicted
of a criminal offense who will be committed to the
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custody of the department and who meets all of the
following eligibility requirements:
* * *
(3) Has not been found guilty of or previously
convicted of or adjudicated delinquent for or an
attempt or conspiracy to commit a personal injury
crime as defined under section 103 of the act of
November 24, 1998 (P.L. 882, No. 111), [18 P.S. §
11.103,] known as the Crime Victims Act, or an
equivalent offense under the laws of the United
States or one of its territories or possessions, another
state, the District of Columbia, the Commonwealth of
Puerto Rico or a foreign nation.
* * *
61 Pa.C.S.A. § 4503 (emphasis added; footnotes omitted).
The Crime Victims Act defines “personal injury crimes” as follows:
“Personal injury crime.” An act, attempt or threat to commit
an act which would constitute a misdemeanor or felony
under the following:
18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. Ch. 27 (relating to assault).
18 Pa.C.S. Ch. 29 (relating to kidnapping).
18 Pa.C.S. Ch. 31 (relating to sexual offenses).
18 Pa.C.S. § 3301 (relating to arson and related
offenses).
18 Pa.C.S. Ch. 37 (relating to robbery).
18 Pa.C.S. Ch. 49 Subch. B (relating to victim and
witness intimidation).
30 Pa.C.S. § 5502.1 (relating to homicide by
watercraft while operating under influence).
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The former 75 Pa.C.S. § 3731 (relating to driving
under influence of alcohol or controlled substance) in
cases involving bodily injury.
75 Pa.C.S. § 3732 (relating to homicide by vehicle).
75 Pa.C.S. § 3735 (relating to homicide by vehicle
while driving under influence).
75 Pa.C.S. § 3735.1 (relating to aggravated assault
by vehicle while driving under the influence).
75 Pa.C.S. § 3742 (relating to accidents involving
death or personal injury).
75 Pa.C.S. Ch. 38 (relating to driving after imbibing
alcohol or utilizing drugs) in cases involving bodily
injury.
The term includes violations of any protective order
issued as a result of an act related to domestic
violence.
18 P.S. § 11.103 (emphasis [omitted]).
Barbaro, 94 A.3d at 391–392.
In this case, the trial court ruled that Appellant was not RRRI eligible
due to his prior convictions in Michigan for home invasion. Trial Court Opinion,
8/25/20, at unnumbered 1. Appellant argues that the trial court erred in
determining: 1) second-degree home invasion under Michigan law is
equivalent to burglary graded as a first-degree felony in Pennsylvania,
Appellant’s Brief at 12, and 2) Appellant’s conviction for assaulting, battering,
resisting, obstructing a person under Michigan law demonstrates present or
past behavior by Appellant. Id. at 16.
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We have reviewed the arguments of the parties and the record as a
whole. We conclude that the trial court completely, carefully, and correctly
explained and substantiated why Appellant was not RRRI eligible, and we rely
on the trial court’s explanation in affirming this matter:
[Appellant] concedes that he was convicted of Home Invasion in
2012 and Resisting Arrest [in] 2005 in Michigan. The PSI
indicated that the 2005 conviction was for “Assault Peace Officer”
and notes a conviction for “Home Invasion-2nd Degree” and
Burglary in 2012. The docket for the 2012 Michigan case reveals
that [Appellant] pled guilty to Home Invasion-2nd Degree.
Home Invasion-2nd Degree in Michigan is equivalent to
burglary in Pennsylvania. The relevant portion of the Michigan
home invasion statute reads as follows:
A person who breaks and enters a dwelling with intent
to commit a felony, larceny, or assault in the dwelling,
a person who enters a dwelling without permission
with intent to commit a felony, larceny, or assault in
the dwelling, or a person who breaks and enters a
dwelling or enters a dwelling without permission and,
at any time while he or she is entering, present in, or
exiting the dwelling, commits a felony, larceny, or
assault is guilty of home invasion in the second
degree.
MCL § 750.110a(3) (2012). “Dwelling” is defined as “a structure
or shelter that is used permanently or temporarily as a place of
abode, including an appurtenant structure attached to that
structure or shelter.” MCL § 750.110a(1)(a). The relevant
portions of the Pennsylvania burglary statute read as follows:
(a) Offense defined.--A person commits the offense
of burglary if, with the intent to commit a crime
therein, the person:
* * *
(2) enters a building or occupied
structure, or separately secured or
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occupied portion thereof that is adapted
for overnight accommodations in which at
the time of the offense no person is
present.
18 Pa.C.S. § 3502(a).
The docket for the 2005 Michigan conviction listed as
“Assault Police Officer” lists the offense to which [Appellant] pled
as “Police Officer-Assaulting/resisting/obstructing.” See MCL §
750.81d (2005). It is not clear from the Michigan docket whether
or not [Appellant] assaulted, resisted, or obstructed a police
officer.
* * *
In order to be eligible for R.R.R.I., a defendant must meet
all of the following criteria: (1) does not demonstrate a history of
present or past violent behavior; (2) has not been convicted of an
offense involving a deadly weapon or firearm, or subject to a
sentence enhancement for use of a deadly weapon; (3) has not
been found guilty of or previously convicted of or adjudicated
delinquent for or criminal attempt, criminal solicitation or criminal
conspiracy to commit murder, a crime of violence, or a personal
injury crime (except for Misdemanor-3 Simple Assault); and (4)
has not been convicted of certain enumerated offenses. 61
Pa.C.S. § 4503. Included in the definition of “crime of violence”
are the crimes of assault of a law enforcement officer and
burglary. 42 Pa.C.S. §9714(g). Resisting arrest is also a crime of
violence for purposes of R.R.R.I. eligibility. Commonwealth v.
Finnecy, 135 A.3d 1028, 1033-37 (Pa. Super.2016).
[Appellant’s] contention that this [c]ourt erred in its
determination of [Appellant’s] eligibility is without merit for two
reasons. First, a change in the R.R.R.I. statutes renders
[Appellant] ineligible based solely upon the prior home invasion
conviction. Effective on or about December 18, 2019, 61 Pa.C.S.
§ 4503 was amended to direct that a court consider not just a
history of violent behavior, but also any conviction for a “crime of
violence,”—such as a conviction for burglary—when deciding
whether a defendant is R.R.R.I. eligible. Cullen-Doyle predates
this change by about 2 years. The current language of section
4503 renders [Appellant] ineligible on its face. The Superior Court
has held that changes to the R.R.R.I. Act are applicable to
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defendants who are “convicted and sentenced after the law
became effective,” even if they committed the offense prior to its
effective date, as it impacts no vested right, creates no new legal
burdens, and is generally an act of legislative grace.
Commonwealth v. Robinson, 7 A.3d 868, 873 (Pa. Super. Ct.
2010). The date of [Appellant’s] offense was September 27,
2019. [Appellant] pled guilty on February 20, 2020 and was
sentenced on June 1, 2020, approximately two months and six
months, respectively, after the change in law. Just like the
defendant in Robinson, [Appellant] committed his crime before
the effective date of a change in the law, but was convicted and
sentenced after the change. Under the circumstances, it would
appear that the current language on section 4503—precluding
eligibility for RRRI based upon any conviction for a crime of
violence, which would include burglary—should apply to
[Appellant] and thus render him ineligible on those grounds.
Second, [Appellant] seems to misapprehend the
applicability of Cullen-Doyle. While the Supreme Court in that
case did indeed hold that a “single, present conviction for a violent
crime does not constitute a history of violent behavior,” Cullen-
Doyle, 640 Pa. at 791, it so held in the context of a defendant
whose conviction for burglary in that particular proceeding was
used to render him ineligible for R.R.R.I. In addition to the
burglary conviction being a present rather than prior conviction,
the defendant in Cullen-Doyle was a first-time offender convicted
of a single count of burglary.1 Id. at 785-86. Furthermore, the
Supreme Court made a point of noting that, had the legislature
wanted to exclude potential R.R.R.I. participants based on a single
conviction for a violent crime, “it could have articulated such intent
with a definition of ‘eligible offender’ that expressly precluded any
instance of a conviction for a violent crime.” Id. at 790. That is
precisely what the legislature did in 2019. In this case,
[Appellant] was previously convicted of the Michigan equivalent
of first-degree felony burglary, and was previously convicted of
“Assaulting/resisting/obstructing” a police officer in a separate
incident. [Appellant] has multiple prior convictions for crimes of
violence and is distinguishable from the defendant in Cullen-Doyle
on those grounds.
1 The defendant in Cullen-Doyle was also convicted of
“several counts of criminal conspiracy to commit first-
degree felony burglary,” but the Supreme Court did
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not appear concerned with those for purposes of the
RRRI analysis.
Trial Court Opinion, 8/25/20, at unnumbered 1, 3–6 (emphasis in original).
As in Barbaro, the trial court herein applied the appropriate evaluation
to determine the equivalence of the offenses Appellant committed in Michigan
with the crimes as defined in Pennsylvania. Barbaro, 94 A.3d at 394. As we
explained therein, “[T]he offenses do not identically have to mirror each other
but must be substantially equivalent.” Id. (quoting Commonwealth v.
Ward, 856 A.2d 1273, 1277 (Pa. Super. 2004)). Moreover, “the differences
between the two statutes are insignificant when compared to the similarities.”
Barbaro, 94 A.3d at 395. Therefore, we rely on the trial court’s cogent
explanation and conclude the court did not err in finding that Appellant’s
Michigan convictions excluded him from RRRI eligibility.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2021
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