J-S27020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HOLLY ANN WOLF
Appellant No. 2342 EDA 2014
Appeal from the Judgments of Sentence entered August 1, 2014
In the Court of Common Pleas of Chester County
Criminal Division at Nos:
CP-15-CR-0001224-2014
CP-15-CR-0001357-2014
CP-15-CR-0001850-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 15, 2015
Appellant, Holly Ann Wolf, appeals from the judgments of sentence
entered for her convictions of burglary and other crimes. She challenges the
trial court’s refusal to make her eligible for a reduced minimum sentence
under the Recidivism Risk Reduction Incentive (RRRI) Act.1 We hold that the
trial court correctly refused to make Appellant RRRI eligible, based on her
two convictions of first-degree burglary, which constitute a history of violent
behavior.
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*
Former Justice specially assigned to the Superior Court.
1
61 Pa.C.S.A. §§ 4501-12.
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On August 1, 2014, Appellant entered guilty pleas in the three cases
subject of this appeal, and admitted to violating her probation in a fourth
case. Notably, she pled guilty to two counts of first-degree burglary. 18
Pa.C.S.A. § 3502(a)(1) and (2).2 Under the negotiated plea, Appellant
received an aggregate sentence of four to ten years in prison followed by
five years of probation. Appellant requested to be made RRRI eligible, under
which her minimum sentence of incarceration would instead have been 40
months. The Commonwealth objected, arguing that Appellant’s first-degree
burglary convictions rendered her ineligible for RRRI. The trial court agreed,
and denied Appellant’s request. This appeal followed.
The issue on appeal is whether Appellant’s two convictions of first-
degree burglary constitute a “history of present or past violent behavior”
making her ineligible for RRRI. See Appellant’s Brief at 4. “It is legal error
to fail to impose a RRRI minimum [sentence] on an eligible offender.”
Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa. Super. 2014).
Sentencing legality issues cannot be waived and may be raised by this Court
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2
Burglary is either a first- or second-degree felony. First-degree burglary is
any burglary committed where at least one of the following is present (i) the
burglarized structure is adapted for overnight accommodation; (ii) a person
is present inside the burglarized structure at the time of the burglary; or (iii)
the burglar intends to commit theft of a controlled substance or designer
drug. 18 Pa.C.S.A. § 3502(a) and (c).
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sua sponte.3 Commonwealth v. Robinson, 7 A.3d 868, 870-71 (Pa.
Super. 2010). The legality of a sentence is a question of law.
Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013). Issues
of statutory construction are also questions of law. Commonwealth ex rel.
District Attorney of Blair County (In re Buchanan), 880 A.2d 568, 570
(Pa. 2005). Because Appellant raises only questions of law, our standard of
review is de novo, and our scope of review is plenary. See
Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014).
Under the RRRI Act, the sentencing judge must determine whether the
defendant is an “eligible offender.” 61 Pa.C.S.A. § 4505(a); see 42
Pa.C.S.A. § 9756(b.1). If the defendant is RRRI-eligible, or the
Commonwealth waives eligibility, the defendant receives an RRRI-minimum
sentence, which is 3/4 of the minimum sentence if the minimum sentence is
three years or less, or 5/6 of the minimum sentence if (as here) the
minimum sentence is greater than three years. 61 Pa.C.S.A. § 4505(a)-(c).
Among other requirements not relevant in this case, the RRRI Act
defines eligible offender as an offender who “(1) [d]oes not demonstrate a
history of present or past violent behavior.” Id. § 4503. In Chester, our
Supreme Court held that a conviction of first-degree burglary is “violent
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3
Curiously, the Commonwealth claims Appellant waived her argument.
Robinson, 7 A.3d at 870-71 (holding RRRI-eligibility claims are not subject
to waiver), originated in the same county as this case.
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behavior” as a matter of law. Chester, 101 A.3d at 63-65 (explaining that
common-law burglary was, and first-degree burglary is, viewed as a violent
crime). It further held that “multiple first-degree burglary convictions are
more than sufficient to form a ‘history’ of ‘violent behavior’ under [61
Pa.C.S.A. §] 4503(1).” Id. at 65 (emphasis in original).
Chester is legally indistinguishable from this case. Therefore, we hold
that Appellant’s two first-degree burglary convictions constitute a “history”
of “violent behavior.” In other words, § 4503(1) unambiguously excludes
Appellant from the definition of “eligible offender.” In arguing that the word
“history” contemplates a temporal lapse between multiple events of violent
behavior, Appellant would have us create ambiguity where there is none. In
addition, she fails to distinguish Chester, which held that, at a minimum,
multiple prior events constitute a “history.” Chester, 101 A.3d at 65.
Appellant’s two convictions of first-degree burglary constitute multiple
events and, therefore, a history.
Appellant contends further that we should interpret the RRRI Act
broadly in her favor to advance the RRRI Act’s “main objective”—prevention
of recidivism. Appellant’s Brief at 12. This Court, however, must apply the
statute as written, and we cannot disregard unambiguous language in favor
of pursuing policy objectives. See 1 Pa.C.S.A. § 1921(b); see also
Commonwealth v. Cahill, 95 A.3d 298, 303 (Pa. Super. 2013) (“We may
not arrogate to ourselves some magical power judicially to ‘improve’ the
work done by the legislature.”). Also, because § 4503(1) is unambiguous,
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we decline Appellant’s invitation to apply the rule of lenity, id. § 1928(b)(1).
The rule of lenity does not supersede the “more general principle that the
words of a statute must be construed according to their common and
approved usage.” Commonwealth v. Wilgus, 40 A.3d 1201, 1210 (Pa.
2012) (quotation omitted); accord Salinas v. United States, 522 U.S. 52,
66 (1997) (“The rule [of lenity] does not apply when a statute is
unambiguous or when invoked to engraft an illogical requirement to its
text.”).
Appellant’s two convictions of first-degree burglary constitute a
“history” of “violent behavior,” and hence, the trial court did not err in
finding her ineligible for RRRI. For these reasons, we affirm the judgments
of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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