Com. v. Ciccanti, A.

J-S21019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARCHIE DOMINIC CICCANTI :
:
Appellant : No. 1459 MDA 2021

Appeal from the PCRA Order Entered October 21, 2021,
n the Court of Common Pleas of Schuylkill County,
Criminal Division at No(s): CP-54-CR-0000889-2019.

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 09, 2022

Archie Dominic Ciccanti appeals from the order denying his first petition

filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

9546. Ciccanti claims that the PCRA court committed an error of law when it

determined that he is ineligible for a reduced sentence pursuant to the

Recidivism Risk Reduction Incentive (“RRRI”) Act. 61 Pa.C.S.A. §§ 4501-

4512. We vacate Ciccanti’s judgment of sentence and remand for

resentencing.

On February 11, 2020, a jury convicted Ciccanti of burglary, conspiracy,

and related charges after he and two other men entered an unoccupied home

in Pottsville and removed items from inside. Important to this appeal, Ciccanti

was convicted of burglary under Section 6502(a)(2), graded as a felony of the
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* Retired Senior Judge assigned to the Superior Court.
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first degree. 18 Pa.C.S.A § 3502(c)(1). On March 11, 2020, the trial court

imposed an aggregate term of 57 to 180 months of imprisonment. At

sentencing, the trial court accepted the Commonwealth’s argument that

Ciccanti was ineligible for a RRRI sentence. Although Ciccanti filed a timely

appeal to this Court, he later discontinued it.

Ciccanti filed a timely, counseled PCRA petition on July 16, 2021. In this

petition, Ciccanti averred that his sentence was illegal because the trial court

“found he that he was RRRI ineligible based on a single conviction involving a

crime of violence.” PCRA Petition, 7/16/21, at 4. By order entered October

21, 2021, the PCRA court denied Ciccanti’s petition.1 Ciccanti filed a timely

appeal. Both he and the PCRA court have complied with Pa.R.A.P. 1925.

Ciccanti phrases his sole issue on appeal as follows: “Did the PCRA

Court err when it denied [Ciccanti’s] PCRA petition that sought to correct his

illegal sentence?” Ciccanti’s Brief at 2. In his supporting argument, Ciccanti

reiterates his claim that the trial court erred when it found he was RRRI

ineligible based on a single crime of violence.

Our review of the dismissal of a PCRA petition is limited to the

examination of “whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

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1 The Commonwealth asserts that a hearing was held on October 7, 2021.
Commonwealth’s Brief at 2. Although the certified record indicates several
continuances of a video conference hearing, the last of which was scheduled
for that date, the certified record does not confirm that a hearing was held.

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992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation

omitted). We review the PCRA court’s legal conclusions de novo. Miller, 102

A.3d at 992.

“The [RRRI] Act is intended to encourage eligible offenders to complete

Department of Corrections programs that are designed to reduce recidivism.

Eligible offenders may also be able to take advantage of a reduced sentence.”

Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1240 (Pa. 2017)(citations

omitted). The RRRI Act requires the trial court to determine at the time of

sentencing whether the defendant is an “eligible offender.” 61 Pa.C.S.A. §

4505(a); see also 42 Pa.C.S.A. 9756(b.1) (requiring the sentencing court to

impose a RRRI minimum sentence if the defendant is eligible). A trial court’s

failure to provide an eligible defendant with an RRRI minimum sentence is a

non-waivable sentencing claim and is reviewable under the PCRA.

Commonwealth v. Finnecy, 249 A.3d 903, 911-13 (Pa. 2021).

An “eligible offender” is defined under the RRRI Act, in pertinent 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:

(1) Does not demonstrate a history of present or past
violent behavior.

***

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(3) Has not been found guilty of or previously
convicted of or adjudicated delinquent for . . . a crime of
violence as defined in 42 Pa.C.S.A. 9714(g)[.]

***

61 Pa.C.S.A. § 4503(1).2

In Cullen-Doyle, supra, the defendant pled guilty to several counts of

conspiracy and one count of burglary. The trial court found him ineligible for

an RRRI sentence. On appeal, this Court affirmed, concluding that he was

ineligible for the RRRI program based solely on his present conviction for

burglary. Commonwealth v. Cullen-Doyle, 133 A.2d 14 (Pa. Super. 2016).

Our Supreme Court granted review to determine whether the

defendant’s single burglary conviction demonstrated a “history” of present or

past violent behavior under Section 4503(1). The Court found the pertinent

statutory language ambiguous and therefore looked to the rules of statutory

construction. Id. at 1242. Further, our high court acknowledged that the

stated purpose of the RRRI program was to encourage eligible offenders’

participation in programs that would reduce the likelihood of recidivism, as

well as the “commonly accepted corollary . . . that first-time offenders are

usually more amenable to reform than inmates who have persisted in criminal

conduct.” Id. (footnote omitted).

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2 An eligible offender also cannot be convicted of certain other enumerated
offenses. None of those offenses are involved in the present appeal.

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Given these considerations, our Supreme Court interpreted Section

4503(1) as follows:

[U]se of the word “history” assumes greater significance
because it evidences an intent to render ineligible
individuals with an “established record or pattern” of violent
behavior. Indeed, we believe this understanding engenders
the most cogent and natural interpretation of the statute,
since it permits a sentencing court to assess whether an
offender has an established record or pattern of past or
present violent behavior. As such, it can be fairly inferred
that, in aiming to reduce recidivism, the Legislature sought
to offer greater reform opportunities for first-time offenders
than for repeat offenders.

Id. at 1243 (citation omitted). Therefore, our high court held that “the single,

present conviction for a violent crime does not constitute a history of violent

behavior. Id. at 1244 (emphasis added). As such, Cullen-Doyle was RRRI

eligible.

Among the issues raised on direct appeal in Commonwealth v.

Finnecy, 135 A.3d 1028 (Pa. Super. 2016), appeal denied, 159 A.3d 935 (Pa.

2016), was a claim that the trial court erred in finding that Finnecy was

ineligible for a RRRI sentence because he had single, previous conviction for

resisting arrest. Specifically, Finnecy challenged the trial court’s classification

of resisting arrest as a “violent crime,” thereby excluding him from eligibility

for an RRRI sentence.3

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3 In a footnote, this Court stated that, although the appellant had not
challenged whether his sole conviction for resisting arrest was sufficient to
establish a history of violence, the panel recognized that this Court had
(Footnote Continued Next Page)

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In resolving this issue, this Court looked to Commonwealth v.

Chester, 101 A.3d 56 (Pa. 2014), which involved whether a conviction for

first-degree burglary demonstrated “violent behavior” as a matter of law. We

noted that, in Chester, our high court construed Section 4503(1) as a broad,

“catchall” provision that included “violent behaviors not otherwise identified in

the RRRI Act’s definition of ‘eligible offender.’” Chester, 101 A.3d at 63.

“In light of the guidance from Chester,” this Court considered “whether

a prior conviction for resisting arrest [fell] within the meaning of ‘violent

behavior’ as used in Section 4503(1), rendering an offender ineligible for

RRRI.” Finnecy, 135 A.3d at 1034-35. After defining the elements of the

crime and discussing cases which acknowledged the alternative bases for

liability, as well as pertinent federal decisions, this Court concluded that

Finnecy’s “prior conviction for resisting arrest demonstrate[d] ‘a history of

present or past violent behavior’ for the purposes determining RRRI eligibility.”

Finnecy, 135 A.3d at 1037. We therefore affirmed the trial court’s

determination that Finnecy was ineligible for a RRRI sentence.

In 2017, Finnecy filed a pro se PCRA petition, in which he asserted that

the Pennsylvania Supreme Court’s reversal in Cullen-Doyle rendered him

eligible for an RRRI sentence. After a hearing, the PCRA court concluded that

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recently held that “one instance of misconduct may constitute a ‘history’ for
RRRI purposes.” Finnecy, 135 A.3d at 1033 n.2 (citing Commonwealth v.
Cullen-Doyle, 133 A.3d 14 (Pa. Super. 2016). As discussed supra, our
Supreme Court reversed this Court’s Cullen-Doyle decision.

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the Cullen-Doyle holding, see supra, did not apply to Finnecy’s case.

Thereafter, Finnecy filed a pro se appeal to this Court in which he argued that

our high court’s holding that a singular, violent, present conviction for a crime

not listed in the Section 4503(1) should be extended to a singular, past violent

conviction for a crime not listed in that section.

In finding no merit to this claim, we agreed with the PCRA court’s

rationale for distinguishing Cullen-Doyle, and further agreed with the court’s

conclusion that Finnecy’s prior conviction for resisting arrest demonstrated “a

history of present or past behavior” that rendered him ineligible for an RRRI

sentence. Commonwealth v. Finnecy, 216 A.3d 404 (Pa. Super. 2019) non-

precedential decision at *5. In addition, we concluded that the record

demonstrated that Finnecy was not the type of “first-time offender” whom the

Cullen Doyle court identified as potentially eligible for the RRRI program. Id.

Thus, we affirmed the court’s order denying Finnecy post-conviction relief.

Our Supreme Court granted Finnecy’s petition for allowance of appeal

to determine whether “a single, past conviction for a violate crime constitute

a ‘history of present or past violent behavior’ for purposes” of RRRI eligibility.

Commonwealth v. Finnecy, 224 A.3d 1260 (Pa. 2020) (per curiam). Our

high court then reviewed its previous decision in Cullen-Doyle, and

concluded:

While the present circumstances are slightly different
than those in Cullen-Doyle in that [Finnecy’s] ineligibility
for a sentence under the RRRI Act was based on a single
prior conviction for a crime demonstrating violent behavior
as opposed to a single present conviction for a crime

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demonstrating violent behavior, we nonetheless find its
reasoning determinative. [Finnecy’s] criminal history,
which reflects several previous convictions, only one of
which demonstrates violent behavior, does not render him
ineligible for a sentence under the RRRI Act.

Commonwealth v. Finnecy, 249 A.3d 903, 915 (Pa. 2021). Thus, the

Pennsylvania Supreme Court reversed this Court’s decision, and held that “a

single prior conviction for a non-enumerated crime demonstrating violent

behavior does not qualify as a history of past violent behavior under [] Section

4503 of the RRRI Act.” Id. at 906. Like Cullen-Doyle, Finnecy was also RRRI

eligible.

Summarizing, our Supreme Court’s decisions in Cullen-Doyle and

Finnecy, a single present or past conviction for a non-enumerated crime of

violence does not render a criminal defendant ineligible to receive a RRRI

sentence. Here, Ciccanti contends that the circumstances “are identical” to

those presented in Finnecy.

The PCRA court disagreed. The court explained:

Ciccanti’s case did not involve a single prior conviction
for a non-enumerated crime under the [RRRI] Act. He had
a prior conviction of resisting arrest and a present conviction
of first[-]degree burglary, which has been determined to be
a crime demonstrating violent behavior. Commonwealth
v. Chester, 627 Pa. 429, 101 A.3d 56 (Pa. 2014).

The presence of both a prior and present conviction of
non-enumerated crimes demonstrating violent behavior
constitutes a history of present or past violent behavior
making Ciccanti ineligible for a sentence under the RRRI Act.

PCRA Court Opinion, 10/21/21, at 4-5.

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Here, the PCRA court’s reliance on Chester is misplaced, given the

current pertinent versions of the burglary statute and the RRRI Act. Although

our high court decided Chester in 2014, Chester was convicted under the

prior burglary statute, which made no distinction between whether the

building was adapted for overnight accommodation or whether a person was

present. The prior statute provided that all burglaries were first-degree

felonies unless “the building, structure or portion entered is not adapted for

overnight accommodation and if no individual is present at the time of

entry[.]” Chester, 101 A.3d at 58 n.1. In that circumstance, burglary was

graded as a second-degree felony.

As our Supreme Court recognized in Chester, however, the

Pennsylvania Legislature amended the burglary statute in 2012, and provided

different subsections based on whether the place burgled was adapted for

overnight accommodation and/or whether a person was present. Id. The

burglary statute now reads as follows:

(a) Offense defined.—A person is guilty of burglary if, with the
intent to commit a crime therein, the person:

(1)(i) enters a building or an 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 and the person
commits, attempts to commit a bodily injury crime therein;

(ii) 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 and person is present;

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(2) enters a building or occupied structure, or separately
secured 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 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 no person
is present.

18 Pa.C.S.A. § 3502(a). Like the prior version, subsections (a)(1) –(a)(3) are

graded as first-degree felonies. 18 Pa.C.S.A. § 3502(c)(1).4

As noted above, to be eligible for a reduced sentence, the RRRI Act

specifically provides that a criminal defendant cannot have a present or past

conviction for “a crime of violence” as defined in 42 Pa.C.S.A. section 9714(g).

Section 9714(g) lists numerous offenses that are crimes of violence, including

burglary under “42 Pa.C.S. § 3502(a)(1).” RRRI eligibility is only denied to

persons convicted of burglary when the structure is adapted for overnight

accommodation and a person is present.

Here, Ciccanti was charged and convicted of burglary pursuant to

Section 3502(a)(2). Although the grading of the offense remains a first-

degree felony, entering a building “adapted for overnight accommodations in

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4 Unless the perpetrator entered a building to steal drugs, a Section
3502(a)(4) conviction is graded as a second-degree felony. 18 Pa.C.S.A. §
3502(c)(2).

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which at the time of the offense no person is present” is not considered a

“crime of violence,” under Section 9714(g), and, therefore, does not affect an

individual’s eligibility for a reduced sentence pursuant to the RRRI Act.

Thus, Ciccanti’s present burglary crime is not a “crime of violence.” He

is correct when he asserts that, like Finnecy, his single past conviction for a

crime of violence does not render him ineligible for a RRRI sentence. We,

therefore, vacate his judgment of sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded proceedings consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/09/2022

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