J-S10038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW DODD
Appellant No. 1991 EDA 2014
Appeal from the Judgment of Sentence May 29, 2014
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000134-2014
CP-52-CR-0000136-2014
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2015
Appellant, Andrew Dodd, appeals from the judgment of sentence
entered in the Pike County Court of Common Pleas, following his negotiated
guilty plea to two counts of first-degree felony burglary and one count of
first-degree felony conspiracy to commit burglary.1 We affirm.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with burglary, conspiracy to commit
burglary, criminal trespass, theft by unlawful taking or disposition, theft by
deception, receiving stolen property, and criminal mischief, in connection
with Appellant’s unauthorized entrance into two residences on February 2,
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1
18 Pa.C.S.A. §§ 3502(a)(2) and 903 (§ 3502 related), respectively.
_________________________
*Retired Senior Judge assigned to the Superior Court.
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2014. On May 29, 2014, Appellant entered a negotiated guilty plea to two
counts of burglary of a home―no one present, and one count of conspiracy
to commit burglary of a home―no one present.2 That same day, with the
benefit of a presentence investigation (“PSI”) report, the court sentenced
Appellant to consecutive terms of two (2) to four (4) years’ imprisonment for
each burglary conviction, and a concurrent term of one (1) to two (2) years’
imprisonment for the conspiracy conviction, for an aggregate sentence of
four (4) to eight (8) years’ imprisonment.
On June 9, 2014, Appellant timely filed a post-sentence motion, which
the court denied on June 10, 2014. Appellant timely filed a notice of appeal
on July 9, 2014. The next day, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied on July 30, 2014.
Appellant raises one issue for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION AND
COMMIT AN ERROR OF LAW WHEN IT DENIED
[APPELLANT’S] REQUEST FOR ACCEPTANCE INTO THE
RECIDIVISM RISK REDUCTION INCENTIVE (“RRRI”)
PROGRAM?
(Appellant’s Brief at 4).
Appellant argues he was entitled to acceptance into the RRRI program
because he was not convicted of any enumerated disqualifying offenses and
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2
Admission into the Recidivism Risk Reduction Incentive (“RRRI”) program
was not a term of Appellant’s negotiated plea.
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he did not demonstrate a history of present or past violent behavior.
Appellant contends his convictions do not constitute crimes showing “present
violent behavior,” because the convictions were classified as burglary of a
home—no one present and are merely offenses against the “property rights”
of the owner. Appellant insists burglary of a home, where no one is present,
cannot constitute a crime of violence because there is no threat of violence
or harm to any person. Appellant concludes the court improperly deemed
him ineligible for the RRRI program, and this Court must vacate and remand
for resentencing. We disagree.
The RRRI statute provides, in pertinent part, as follows:
§ 4505. Sentencing
(a) Generally.―At the time of sentencing, the court
shall make a determination whether the defendant is an
eligible offender.
* * *
(c) Recidivism risk reduction incentive minimum
sentence.―If the court determines that the defendant is
an eligible offender or the prosecuting attorney has waived
the eligibility requirements under subsection (b), the court
shall enter a sentencing order that does all of the
following:
(1) Imposes the minimum and maximum
sentences as required under 42 Pa.C.S. § 9752
(relating to sentencing proceeding generally).
(2) Imposes the recidivism risk reduction
incentive minimum sentence. The recidivism risk
reduction incentive minimum shall be equal to three-
fourths of the minimum sentence imposed when the
minimum sentence is three years or less. The
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recidivism risk reduction incentive minimum shall be
equal to five-sixths of the minimum sentence if the
minimum sentence is greater than three years. …
* * *
61 Pa.C.S.A. § 4505. The RRRI statute defines an eligible offender as an
offender who, inter alia, “[d]oes not demonstrate a history of present or past
violent behavior.” 61 Pa.C.S.A. § 4503.3 The statute does not define what
constitutes a “history of present or past violent behavior.” See id.
Nevertheless, “an unprivileged entry into a building or structure where
people are likely to be found is a clear threat to their safety and every
burglar knows when he attempts to commit his crime that he is inviting
dangerous resistance.” Commonwealth v. Pruitt, 597 Pa. 307, 321, 951
A.2d 307, 331 (2008), cert. denied, 556 U.S. 1131, 129 S.Ct. 1614, 173
L.Ed.2d 1001 (2009) (internal citations and quotation marks omitted).
Recently, our Supreme Court expressly held that first-degree burglary
constitutes “violent behavior” for purposes of the RRRI statute.
Commonwealth v. Chester, ___ Pa. ___, 101 A.3d 56 (2014). In
reaching its decision, the Court explained:
[A]lthough burglary involves the unlawful entry of another
person’s property, and although burglary is characterized
as a property crime for purposes of the Pennsylvania
Uniform Crime Report, it is well established within our case
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3
The statute also enumerates disqualifying offenses, including offenses
involving deadly weapons, personal injury crimes as defined in the Crime
Victims Act, certain sexual offenses, and specific drug offenses. See id.
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law that burglary is a crime of violence as a matter of law,
signifying that first-degree burglary necessarily constitutes
violent behavior in all contexts, including under Section
4503(1) [of the RRRI statute]. Indeed, …burglary has
been treated as a crime of violence dating back to the
common law of England, which defined burglary as a
forcible invasion into the home with the intent to commit a
felony therein, and punished burglars with death because
of the great public policy involved in shielding the citizenry
from being attacked in their homes and in preserving
domestic tranquility. Based upon those same motivations,
and wishing to protect people from the threat of violence
in other situations, our legislature expanded the common
law scope of burglary when it drafted the Crimes Code,
including within its definition various types of buildings and
structures in addition to the home, and extending the
definition to encompass both daytime and nighttime
intrusions.
We continue to view burglary as a crime of violence today
based upon the well settled notion that non-privileged
entry…poses a threat of violence to persons. …
Moreover, the Crimes Code treats first-degree burglary
distinctly from second-degree burglary, as first-degree
burglary contemplates the potential for
confrontation, whereas second-degree burglary does not.
At the time [a]ppellant was charged, the burglary statute
distinguished first-degree burglary from second-degree
burglary based upon whether the building or structure
entered was adapted for overnight accommodation and
whether an individual was present at the time of entry.
Only if neither of these conditions [was] true—i.e., that
there was no risk of confrontation—was the entry a
second-degree burglary. Thus, in light of Pennsylvania’s
long-standing view of burglary as a violent crime, as well
as the fact that first-degree burglary is treated distinctly,
and more severely, under Pennsylvania law, we have no
hesitancy in concluding a conviction for first-degree
burglary constitutes “violent behavior” under Section
4503(1).
Furthermore, while [a]ppellant contends his first-degree
burglary conviction was not “violent behavior” because he
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did not employ violence during the burglary, it is an
offender’s non-privileged entry, which invites
dangerous resistance and, thus, the possibility of the
use of deadly force against either the offender or the
victim, that renders burglary a violent crime, not the
behavior that is actually exhibited during the
burglary. Thus, the fact that [a]ppellant did not actually
engage in any violent acts while committing first-degree
burglary does not render that crime “non-violent.”
Similarly, we decline to accept the invitation…to depart
from our well established case law—finding burglaries to
be violent by their very nature—to instead engage in a
case-by-case evaluation into whether a particular burglary
conviction constitutes “violent behavior” under Section
4503(1). Thus, …a conviction for first-degree burglary, a
crime of violence, constitutes violent behavior for purposes
of Section 4503(1).
Id. at ___, 101 A.3d at 64-65 (internal citations, quotation marks, and
footnotes omitted) (emphasis added).
The relevant version of the burglary statute at the time of Appellant’s
offenses provided:
§ 3502. Burglary
(a) Offense defined.―A person commits the offense
of burglary if, with the intent to commit a crime therein,
the person:
(1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the
time of the offense any person is present;
(2) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the
time of the offense no person is present;
(3) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
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not adapted for overnight accommodations in which at
the time of the offense any person is present; or
(4) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
not adapted for overnight accommodations in which at
the time of the offense no person is present;
* * *
(c) Grading.―
(1) Except as provided in paragraph (2), burglary
is a felony of the first degree.
(2) An offense under subsection (a)(4) is a felony
of the second degree.
* * *
18 Pa.C.S.A. § 3502(a), (c).4
Instantly, the trial court explained:
Appellant alleges this [c]ourt erred in determining
Appellant is not eligible for a RRRI sentence based upon
his F1 Burglary conviction[s]. However, this [c]ourt
respectfully disagrees. This [c]ourt considered numerous
factors in sentencing Appellant and determined that
Appellant was not eligible for a RRRI sentence. One of the
factors this [c]ourt considered was Appellant’s Pre-
Sentence Investigation (“PSI”) [report]. The PSI revealed
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4
The legislature amended the burglary statute on December 23, 2013
(effective February 21, 2014). Consistent with the version in effect at the
time of Appellant’s offenses, the current burglary statute classifies all
burglaries as first-degree felonies, with the exception of those burglaries
where the defendant enters a building or occupied structure not adapted for
overnight accommodations, and no person is present, which are second-
degree felonies (unless the actor’s intent is to commit theft of a controlled
substance, in which case, the burglary is a first-degree felony). See 18
Pa.C.S.A. § 3502(a)(4), (c) (as amended).
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that Appellant has a serious criminal history which included
three previous Burglary offenses and one of the Burglary
offenses was a F1 Burglary. Additionally, the Burglary
offenses Appellant pled guilty to in this matter were also
graded as F1 Burglaries. Although such crimes are not
considered personal injury crimes, convictions of multiple
F1 Burglaries demonstrate that Appellant has a history of
violent behavior as well as presently continues to exhibit
that behavior. Therefore, because of Appellant’s history of
present and past violent behavior he was not eligible for a
RRRI sentence and we continue to stand by our decision.
Finally, Appellant alleges this [c]ourt’s holding that
Appellant is ineligible for the RRRI sentence is contrary to
the holding in Commonwealth v. Gonzalez, 10 A.3d
1260 (Pa.Super. 2010)[, appeal denied, 610 Pa. 616, 21
A.3d 1190 (2011)]. This [c]ourt respectfully disagrees.
The Superior Court’s holding was specifically related to a
F2 Burglary which by definition does not involve the risk of
violence, or injury to another person. [Id. at 1262.]
Here, Appellant pled guilty to two Counts of F1 Burglary.
Although no one was present there still existed a risk of
injury or violence to another person had someone been
home. Therefore, this [c]ourt’s holding was not contrary
to Gonzalez and we continue to stand by our decision.
(Trial Court Opinion, filed August 26, 2014, at 3-4).5 We accept the court’s
analysis.6 See Chester, supra; Pruitt, supra.
Our Supreme Court’s decision in Chester controls. Appellant’s
unprivileged entry into a home, where people are likely to be found,
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5
The trial court did not have the benefit of our Supreme Court’s decision in
Chester when it issued its Rule 1925(a) opinion.
6
The certified record does not contain Appellant’s PSI report, so we are
unable to verify the details of his criminal history. Nevertheless, the record
confirms that Appellant has a prior record. Additionally, Appellant does not
contest on appeal the trial court’s statements regarding his PSI report.
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constituted a threat to the safety of others. See Chester, supra; Pruitt,
supra. Appellant attempts to distinguish Chester by emphasizing that the
defendant in Chester committed a burglary of a home where someone was
present; importantly, the Supreme Court’s analysis focused on the
defendant’s intrusion into a home, which by its nature, contemplates the
potential for confrontation, regardless of whether someone is present.
See id. Likewise, the burglary statute classifies an intrusion into a home as
a first-degree felony, regardless of whether a person is present.7 See 18
Pa.C.S.A. § 3502(a)(1), (a)(2), (c). Because the circumstances of
Appellant’s case evidenced prohibited violent behavior for RRRI purposes,
the court properly deemed Appellant ineligible for RRRI sentencing. See 61
Pa.C.S.A. §§ 4503, 4505. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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7
Appellant’s other attempts to distinguish his case from Chester are equally
unavailing.
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