Com. v. Wray, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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