Com. v. Frye, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARANCE FRYE :
:
Appellant : No. 865 EDA 2021
Appeal from the Judgment of Sentence Entered September 3, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003285-2017
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 11, 2022
Tarance Frye appeals nunc pro tunc from the aggregate judgment of
sentence of five to ten years of incarceration imposed after he pled guilty to
four counts of possession with intent to deliver (“PWID”). We affirm.
Appellant was charged with numerous counts of PWID in connection with
sales of heroin, cocaine, marijuana, and oxycodone, as well as one count of
person not to possess a firearm. After unsuccessfully litigating a suppression
motion, Appellant entered open guilty pleas to four counts of PWID, two for
heroin and two for cocaine. In exchange, the Commonwealth dropped the
remaining fifty-four charges. The trial court ordered a presentence
investigation (“PSI”) that revealed Appellant’s prior convictions for, inter alia,
aggravated assault. See N.T. Sentencing, 9/3/19, at 7. Upon review of the
PSI report and after hearing from Appellant and both attorneys, the trial court
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sentenced Appellant to the term indicated above. The court noted that
Appellant was not eligible for the Recidivism Risk Reduction Incentive (“RRRI”)
program because of the aggravated assault conviction.1 Id. at 36-37.
Appellant, through counsel, filed a timely post-sentence motion
challenging the discretionary aspects of sentencing. Appellant also filed a pro
se motion challenging, inter alia, the trial court’s failure to consider him for a
RRRI sentence. The pro se motion was properly docketed and forwarded to
counsel but not ruled upon by the court in accordance with Pa.R.Crim.P.
576(A)(4).2 The trial court denied the counseled motion. No appeal was filed.
Appellant filed a timely petition pursuant to the Post Conviction Relief
Act that resulted in the reinstatement of his right to take a direct appeal from
his judgment of sentence. See Order, 3/8/21. This timely-filed nunc pro tunc
appeal followed, and both Appellant and the trial court complied with Pa.R.A.P.
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1 In the same hearing, the trial court resentenced Appellant in two other
matters, including the aforementioned aggravated assault case, since the new
conviction in the instant case violated the terms of his release in those cases.
Appellant did not challenge the sentences in those cases. See Trial Court
Opinion, 7/7/21, at 1 n.1.
2 “As hybrid representation is not permitted in the Commonwealth, our courts
will not accept a pro se motion while an appellant is represented by counsel;
indeed, pro se motions have no legal effect and, therefore, are legal nullities.”
Commonwealth v. Williams, 241 A.3d 353, 354 (Pa.Super. 2020) (cleaned
up). When such pro se documents are submitted, “the clerk of courts shall
accept it for filing, time stamp it with the date of receipt and make a docket
entry reflecting the date of receipt, and place the document in the criminal
case file.” Pa.R.Crim.P. 576(A)(4). Further, “[a] copy of the time stamped
document shall be forwarded to the defendant’s attorney and the attorney for
the Commonwealth within 10 days of receipt.” Id.-2-
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1925. Appellant presents one issue for our consideration: “Whether the
sentencing court erred in failing to consider [A]ppellant for, and in failing to
sentence [A]ppellant pursuant to, the [RRRI program,] for which he was
eligible?” Appellant’s brief at 8 (unnecessary capitalization omitted).
Appellant indicates that his claim challenges the discretionary aspects
of his sentence, and that this Court, therefore, applies an abuse of discretion
standard of review. See Appellant’s brief at 5. However, “a trial court’s failure
to sentence an eligible offender pursuant to the RRRI Act implicates
sentencing illegality.” Commonwealth v. Finnecy, 249 A.3d 903, 916 (Pa.
2021). Accordingly, we conduct a de novo, plenary review. See, e.g.,
Commonwealth v. Given, 244 A.3d 508, 510 (Pa.Super. 2020).
We begin by noting the purpose of the RRRI program:
The RRRI legislation “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. Eligibility is
conditioned, in relevant part, upon the absence of a “history of
present or past violent behavior,” although the Act does not define
that phrase.
Commonwealth v. Dozier, 208 A.3d 1101, 1104 (Pa.Super. 2019) (cleaned
up). The RRRI Act defines an “eligible person” as follows:
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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(2) Has not been subject to a sentence the calculation of which
includes an enhancement for the use of a deadly weapon . . . .
(3) Has not been found guilty of or previously convicted
of . . . a personal injury crime as defined under section 103
of the act of November 24, 1998 (P.L. 882, No. 111), known
as the Crime Victims Act, except for an offense under 18
Pa.C.S. § 2701 (relating to simple assault) when the offense is
a misdemeanor of the third degree . . . .
(4) Has not been found guilty or previously convicted or
adjudicated delinquent for violating any [enumerated statutes
concerning certain sexual and drug offenses].
(5) Is not awaiting trial or sentencing for additional criminal
charges, if a conviction or sentence on the additional charges
would cause the defendant to become ineligible under this
definition.
61 Pa.C.S. § 4503 (emphases added). The referenced definition for “personal
injury crime” is “an act, attempt, or threat to commit an act which would
constitute a misdemeanor or felony under the following: . . . 18 Pa.C.S. Ch.
27 (relating to assault).” 18 P.S. § 11.103.
The trial court held that Appellant was ineligible for an RRRI sentence.
Specifically, the trial court stated at sentencing that Appellant was “not RRRI
eligible because I believe there’s an aggravated assault in his background.”
N.T. Sentencing, 9/3/19, at 36-37. In its Pa.R.A.P. 1925(a) opinion, the trial
court further elucidated that Appellant had a “history of past violent conduct
based upon his past conviction of aggravated assault upon a police officer” in
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2005 at case number CP-15-CR-0004034-2004.3 Trial Court Opinion, 7/7/21,
at 14.
As such, to the extent that Appellant contends that the trial court failed
to consider him for the RRRI program, the record belies his claim. The trial
court plainly considered whether the RRRI program was appropriate but
concluded that Appellant was not eligible.
The main thrust of Appellant’s argument is that the trial court erred in
determining that he was ineligible. Appellant posits that our Supreme Court’s
decisions in Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017)
(“Cullen-Doyle II”), and Finnecy, supra, stand for the proposition that the
RRRI statute “requires more than one conviction for a crime of violence to
render a defendant ineligible for a[n] RRRI sentence.” Appellant’s brief at 14.
Appellant’s claim is meritless.
The defendant in Cullen-Doyle II was sentenced on a burglary
conviction, and the trial court held that the present conviction rendered him
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3 The trial court indicates that Appellant was convicted of aggravated assault
for violating subsection (a)(3) of the statute, which indicates that a person is
guilty of aggravated assault if he “attempts to cause or intentionally or
knowingly causes bodily injury to” inter alia, a police officer. 18 Pa.C.S.
§ 2702(a)(3). However, the publicly-available docket for CP-15-CR-0004034-
2004 indicates Appellant, then going by the name of Terrance Roskins, was
convicted and sentenced pursuant to subsection (a)(6), which involves the
attempt “by physical menace to put any [police officer,] while in the
performance of duty, in fear of imminent serious bodily injury.” 18 Pa.C.S.
§ 2702(a)(6). As either of these second-degree felonies codified in Chapter
27 of the Crimes Code is a “personal injury crime” as defined by 18 P.S.
§ 11.103, we need not resolve the discrepancy.
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ineligible for an RRRI sentence. This Court agreed, holding as follows: “The
legislature’s use of general terms to describe the disqualifying conduct set
forth in § 4503(1) persuades us that a single conviction for first-degree
burglary, an admittedly violent act under long-standing Pennsylvania law, is
sufficient to establish a present history of violent behavior.” Commonwealth
v. Cullen-Doyle, 133 A.3d 14, 22 (Pa.Super. 2016) (“Cullen-Doyle I”),
vacated by Cullen-Doyle II, supra.
Our High Court granted review to address whether the defendant was
disqualified from the RRRI program “based solely on his present conviction for
a crime of violence.” Cullen-Doyle II, supra at 1241. Finding § 4503(1)’s
reference to a history of present violent behavior ambiguous, it turned to the
tools of statutory construction. The Court considered the purpose of the
statute, namely to reduce the likelihood of recidivism, and noted that first-
time offenders are more amenable to reform. As such, it reasoned that
purpose would be somewhat thwarted by excluding “a large number of
individuals who could potentially reform through participation in RRRI
programming[.]” Id. at 1243. The Court further noted that “the rule of lenity
bolsters the conclusion that the single, present conviction for a violent crime
does not constitute a history of violent behavior.” Id. at 1244.
The Court additionally observed as follows:
We acknowledge that [§] 4503 prescribes that individuals who
have been convicted of certain enumerated offenses are ineligible
for participation in the program. See 61 Pa.C.S. § 4503 (listing
disqualifying offenses including: the use of a deadly weapon;
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personal injury crimes as set forth in the Crime Victims Act,
18 P.S. § 11.103; crimes requiring registration as a sex offender
or involving incest, open lewdness, or internet child pornography;
and certain violations of the Controlled Substances, Drug, Device
and Cosmetic Act). Significantly, however, [§] 4503's list of
disqualifying offenses—which include both violent and potentially
non-violent crimes—does not include burglary. Hence, application
of the statutory-interpretation principle that the inclusion of
specific matters in a statute implies the exclusion of other matters
suggests the Legislature did not intend for all crimes of violence
to be disqualifying in and of themselves.
Id. at 1243-44 (cleaned up, emphasis added).
Thereafter, in Finnecy, our Supreme Court considered whether a
defendant who had a single past conviction for a crime of violence was RRRI-
ineligible pursuant to § 4503(1). Applying the reasoning of Cullen-Doyle II,
the Court 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 [§] 4503 of the RRRI Act.” Finnecy, supra at 916 (emphasis
added). However, the Court confirmed the meaning of the plain language of
§ 4503(3): that enumerated offenses “automatically preclude an offender
from being eligible to receive a sentence under the RRRI Act.” Id. at 915.
Stated plainly, the holdings of Cullen-Doyle II and Finnecy have no
bearing on the validity of Appellant’s sentence. Appellant was not determined
to be ineligible based upon a single conviction of a crime of violence pursuant
to the general history-of-past-violent-behavior requirement of § 4503(1).
Rather, Appellant was disqualified based upon his prior conviction for an
enumerated offense, which our Legislature expressly did intend to make
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disqualifying in and of itself through § 4503(3). The enumerated offenses
“automatically preclude an offender from being eligible to receive a sentence
under the RRRI Act.” Finnecy, supra at 915.
Accordingly, our de novo review has confirmed that the trial court
properly held that Appellant’s prior aggravated assault conviction rendered
him RRRI-ineligible. We therefore affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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