Com. v. Sterling, W.

J-S21022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER STERLING :
:
Appellant : No. 1308 WDA 2017
Appeal from the Judgment of Sentence August 14, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003814-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 07, 2018
Walter Sterling (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of multiple counts of burglary, criminal
trespass, conspiracy, theft by unlawful taking or disposition, and criminal
mischief.1 For the reasons that follow, we affirm.
Appellant’s convictions in this matter stem from multiple residential
burglaries that occurred in Erie County, Pennsylvania between March 7, 2016
and March 28, 2016. Prior to his trial and following a waiver of counsel
colloquy, Appellant elected to relinquish his appointed trial counsel and
proceed pro se. On June 23, 2017, a jury found Appellant guilty of four counts
of burglary graded as a first-degree felony, four counts of criminal trespass,
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1 18 Pa.C.S.A. §§ 3502(a)(2), 3503(a)(1), 903(a), 3921(a), 3304(a)(2).
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four counts of conspiracy, four counts of theft by unlawful taking or
disposition, and two counts of criminal mischief.
On August 14, 2017, the trial court sentenced Appellant to an aggregate
term of four to ten years of incarceration followed by twenty years of probation
on the burglary charges. The trial court also imposed four concurrent terms
of ten years of probation on Appellant’s conspiracy charges. Appellant’s
charges of criminal trespass and theft by unlawful taking or disposition merged
for purposes of sentencing. The trial court imposed no further penalty for
Appellant’s charges of criminal trespass. At sentencing, the trial court noted
that Appellant was not eligible for sentencing in accordance with the
Recidivism Risk Reduction Incentive (RRRI) program.
On August 23, 2017, Appellant filed a post-sentence motion, which the
trial court denied on August 25, 2017. On September 11, 2017, Appellant
filed a timely notice of appeal. For his appeal, Appellant requested the
appointment of counsel and the trial court re-appointed trial counsel to
represent him. On September 13, 2017, the trial court ordered Appellant to
file a timely concise statement of errors complained of on appeal pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On September
28, 2017, Appellant, now represented by counsel, filed a counseled Rule
1925(b) statement.
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On October 10, 2017, the trial court appointed appellate counsel to
replace trial counsel for Appellant’s appeal.2 On October 23, 2017, the trial
court filed its Rule 1925(a) opinion in response to Appellant’s Rule 1925(b)
statement. On October 25, 2017, the trial court transmitted the certified
record to this Court.
On January 18, 2018, Appellant filed a “Petition to File Supplemental
Concise Statement Nunc Pro Tunc” in which Appellant argued that
extraordinary circumstances existed warranting the filing of a supplemental
Rule 1925(b) statement because the issues raised in Appellant’s Rule 1925(b)
statement are waived. On January 30, 2018, the trial court denied Appellant’s
petition. The trial court concluded that the arguments contained in the
petition did not demonstrate extraordinary circumstances warranting the filing
of a supplemental Rule 1925(b) statement. Order, 1/30/17, at 3. The court
further explained that appellate counsel filed the petition more than three
months after her appointment, and long after the court issued its Rule 1925(a)
opinion and transmitted the certified record to this Court. Id. at 2-3.
On appeal, Appellant presents the following issues for review:
1. Did the trial court abuse its discretion or err when it denied
Appellant’s request to file a Supplemental Concise Statement
Nunc Pro Tunc?
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2 The record is unclear as to the reason for trial counsel’s departure from this
case.
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2. Did the sentencing court commit an error of law, thereby
imposing an illegal sentence, when it determined that Appellant’s
prior record precluded his eligibility for a RRRI sentence?
Appellant’s Brief at 9.
First, Appellant argues that the trial court erred in denying his petition
to file a supplemental Rule 1925(b) statement. Appellant contends that
extraordinary circumstances exist warranting the allowance of filing a
supplemental Rule 1925(b) statement because the only issues raised in
Appellant’s original 1925(b) statement are waived and the issues he now
seeks to raise are meritorious.
Generally, under Rule 1925(b), the trial court “shall allow the appellant
at least 21 days” . . . for the filing and service of [a Rule 1925(b)] Statement.”
Pa.R.A.P. 1925(b). Rule 1925(b) permits the filing of a supplemental
statement in two limited circumstances. First, Rule 1925(b)(2) provides that,
“[u]pon application of the appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an amended or
supplemental Statement to be filed.” Pa.R.A.P. 1925(b)(2). Second, Rule
1925(b)(2) also provides, “[i]n extraordinary circumstances, the judge may
allow for the filing of a Statement or amended or supplemental Statement
nunc pro tunc.” Pa.R.A.P. 1925(b)(2). With respect to the nunc pro tunc filing
of a Rule 1925(b) statement, the Note to Rule 1925(b)(2) explains:
In general, nunc pro tunc relief is allowed only when there has
been a breakdown in the process constituting extraordinary
circumstances. See, e.g., In re Canvass of Absentee Ballots
of Nov. 4, 2003 Gen. Election, [] 843 A.2d 1223, 1234 ([Pa.]
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2004) (“We have held that fraud or the wrongful or negligent act
of a court official may be a proper reason for holding that a
statutory appeal period does not run and that the wrong may be
corrected by means of a petition filed nunc pro tunc.”) Courts
have also allowed nunc pro tunc relief when “non-negligent
circumstances, either as they relate to appellant or his counsel”
occasion delay. McKeown v. Bailey, 731 A.2d 628, 630 (Pa.
Super. 1999). However, even when there is a breakdown in the
process, the appellant must attempt to remedy it within a “very
short duration” of time. Id.; Amicone v. Rok, 839 A.2d 1109,
1113 (Pa. Super. 2003) (recognizing a breakdown in process, but
finding the delay too long to justify nunc pro tunc relief).
Pa.R.A.P.1925(b)(2), note.
In this case, there are no extraordinary circumstances that would
warrant permitting the filing of a supplemental Rule 1925(b) statement nunc
pro tunc. Appellant at no point has asserted that a breakdown in the process
occurred, nor has he alleged any other circumstance envisioned by the rule or
the explanatory note. Additionally, our review of the record reveals the
complete absence of extraordinary circumstances. Although Appellant asserts
that extraordinary circumstances exist in this case because the issues raised
in his original Rule 1925(b) are waived and the issues he seeks to now raise
are meritorious, there is no indication, either in Rule 1925 itself or in any other
authority, that such a scenario constitutes extraordinary circumstances.
Moreover, Appellant waited over three months after the trial court issued its
Rule 1925(b) opinion and transmitted the record to this Court to request
permission to file a supplemental Rule 1925(b) statement. Thus, even if
extraordinary circumstances did exist in this case, Appellant simply waited too
long to attempt to supplement his Rule 1925(b) statement. See Pa.R.A.P.
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1925(b)(2), note. Accordingly, Appellant’s first issue does not entitle him to
relief.
Second, Appellant argues that the trial court imposed an illegal
sentence. Specifically, Appellant asserts that the trial court erred in
determining that he was ineligible to be sentenced in accordance with the
Recidivism Risk Reduction Incentive (RRRI) program, 61 Pa.C.S.A. §§ 4501-
4512.
The question of whether a defendant is RRRI eligible “presents a
question of statutory construction and implicates the legality of the sentence
imposed.” Commonwealth v. Quiles, 166 A.3d 387, 392 (Pa. Super. 2017)
(quotations and citation omitted). “Therefore, our standard of review is de
novo and the scope of our review is plenary.” Id. (quotation and citation
omitted). Additionally, although Appellant failed to preserve this issue in his
Rule 1925(b) statement, “[c]hallenges to the legality of the sentence are not
waivable.” Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super.
2006).
The RRRI program “permits offenders who exhibit good behavior and
who complete rehabilitative programs in prison to be eligible for reduced
sentences.” Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012).
Section 4503 defines an “eligible offender,” in relevant part, as follows:
“Eligible offender.” A defendant or inmate convicted of a
criminal offense who will be committed to the custody of the
department and who meets all of the following eligibility
requirements:
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(1) Does not demonstrate a history of present or past
violent behavior.
61 Pa.C.S.A. § 4503.
Appellant concedes that a conviction of burglary graded as a first-degree
felony constitutes “violent behavior” for purposes of determining RRRI
eligibility. See Commonwealth v. Chester, 101 A.3d 56, 57 (Pa. 2014)
(holding that “that first-degree burglary, which we have consistently viewed
as a violent crime in this Commonwealth, is ‘violent behavior’ as contemplated
by the RRRI Act”). Nevertheless, Appellant contends that he is an “eligible
offender” for the RRRI program because he has not demonstrated “a history
of present or past violent behavior.”3 Appellant argues that his four
convictions of burglary in this case do not disqualify him from RRRI eligibility.
In so arguing, Appellant relies on our Supreme Court’s recent decision in
Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017).
In Cullen–Doyle, the defendant pled guilty to, inter alia, one count of
burglary graded as a first-degree felony. Id. at 1240. The defendant
requested a RRRI sentence, which the trial court denied. On appeal, this Court
affirmed, concluding that the defendant “was ineligible for the RRRI program
based solely on his present conviction for [burglary,]” which constituted a
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3 Appellant raises several arguments in support of his claim that he is RRRI
eligible. Because we find this argument dispositive, we decline to address
his remaining arguments.
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history of present or past violent behavior. Id. at 1241. Thus, on appeal to
the Supreme Court, the issue in Cullen-Doyle was whether a single
conviction for burglary demonstrates “a history of present or past violent
behavior” for the purposes of Section 4503. Id. at 1240.
The Supreme Court vacated this Court’s order and held that 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 stated
purpose was to encourage eligible offenders to participate in the program in
order to reduce the likelihood of recidivism. Id. at 1242. The Court
acknowledged a “commonly accepted corollary ... that first-time offenders are
usually more amenable to reform than inmates who have persisted in criminal
conduct.” Id. (footnote omitted). Thus, the Court reasoned that the General
Assembly “sought to offer greater reform opportunities for first-time offenders
than repeat offenders.” Id. at 1243. The Court explained that 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 RRRI programming will be
prevented from participating.” Id.
Cullen-Doyle, however, is readily distinguishable from the instant
matter for two reasons. First, in this case, unlike Cullen-Doyle, a jury found
Appellant guilty of four counts of burglary committed over a period of
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approximately three weeks, whereas the defendant in Cullen-Doyle pled
guilty to one charge of burglary. Second, Appellant acknowledges that his
Presentence Investigation Report indicates that he also has a 2016 Ohio
conviction of resisting arrest. This Court has held that the crime of resisting
arrest constitutes “violent behavior” for purposes of determining RRRI
eligibility. Commonwealth v. Finnecy, 135 A.3d 1028, 1037 (Pa. Super.
2016). Notably, although Appellant acknowledged his prior 2016 Ohio
conviction for resisting arrest in his appellate brief and that it constitutes a
conviction of “violent behavior,” Appellant offers no argument that the
conviction does not disqualify him from RRRI eligibility. Therefore, the record
established that Appellant has a “history of present or past violent behavior.”
Accordingly, we conclude that the trial court did not err in determining that
Appellant was disqualified from eligibility for an RRRI sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2018
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