Com. v. Beish, M. , 207 A.3d 964 ( 2019 )

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2019 PA Super 111COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW BEISH, :
:
Appellant. : No. 438 WDA 2018
Appeal from the Judgment of Sentence, March 12, 2018,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0004013-2017.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW THOMAS BEISH, :
:
Appellant. : No. 443 WDA 2018
Appeal from the Judgment of Sentence, March 12, 2018,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0004014-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
OPINION BY KUNSELMAN, J.: FILED APRIL 09, 2019
Matthew Thomas Beish, appeals from the judgment of sentence entered
following his guilty plea to criminal trespass and theft by unlawful taking.1
Beish claims the trial court denied him due process at sentencing when it found
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1 18 Pa.C.S.A. § 3503(a)(1)(i) and 18 Pa.C.S.A. § 3921(a), respectively.
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him ineligible for the Recidivism Risk Reduction Incentive (“RRRI”) under 61
Pa.C.S.A. § 4503(5). After careful review, we affirm.
On August 29, 2017, Beish broke into a residence at 143 West 38th
Street, Erie, Pennsylvania. The Commonwealth charged Beish with one count
of criminal trespass. 2 18 Pa.C.S.A. § 3503(a)(i).
Shortly thereafter, on September 3, 2017, Beish took a vehicle from a
convenience store parking lot that did not belong to him. The Commonwealth
charged Beish with one count of theft by unlawful taking. 3 18 Pa.C.S.A. §
3921(a).
Beish pled guilty to both of these charges. When Beish appeared for
sentencing, the trial court inquired about his eligibility for an RRRI sentence.
The probation officer indicated that Beish was ineligible because he was
awaiting trial on two additional charges for burglary. Ultimately, the trial court
sentenced Beish to fifteen (15) months to seven (7) years of imprisonment
for the theft and one (1) to seven (7) years of imprisonment for criminal
trespass, to be served consecutively. Further, the trial court declared Beish
RRRI ineligible, but indicated, however, that it would later reconsider Beish’s
eligibility if he was not convicted on the pending charges.
Beish filed a post-sentence motion at both dockets. Therein, he
asserted that the trial court’s denial of RRRI eligibility “based upon charges
for which he has not yet been convicted and may never be convicted is a
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2 Erie County Docket No. 4014 of 2017.
3 Erie County Docket No. 4013 of 2017.
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violation of [his] right to Federal and State due process.” The trial court
denied his motion without addressing his constitutional claim.
Beish filed timely notices of appeal at each docket. Both Beish and the
trial court complied with Pa.R.A.P. 1925. This Court sua sponte consolidated
these appeals.
Beish presents the following single issue for our review:
1. Did the trial court deny [Beish] due process of law, guaranteed
by both the United States and Pennsylvania Constitutions,
when it complied with statutory authority and declined to find
[Beish] RRRI eligible pursuant to 61 Pa.C.S.A. § 4503 because
of new charges for which he had not been convicted?
See Beish’s Brief at 8.
The RRRI sentencing statute set forth in 61 Pa.C.S.A. § 4505 provides
in pertinent part:
(a) Generally.--At the time of sentencing, the court shall make
a determination whether the defendant is an eligible offender.
***
(b) 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.
61 Pa.C.S.A. § 4505.
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On appeal, Beish challenges the RRRI eligibility provision which
rendered him ineligible for an RRRI sentence. The relevant section provides:
“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:
***
(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.A. § 4503(5). Specifically, Beish argues that subparagraph (5)
violates his constitutional right to due process. Beish’s challenge is both
procedural and substantive in nature.
Beish first contends that subparagraph (5) violates procedural due
process because it precluded his eligibility for an RRRI minimum sentence
without regard for the presumption of innocence and without any requirement
that the Commonwealth establish Beish’s involvement in the charged offense
beyond a reasonable doubt. Beish’s Brief at 18. Beish also contends that
subparagraph (5) violates substantive due process because it deprived him of
his fundamental right to freedom from bodily restraint. Id. at 19-20. Beish
therefore asks this Court to declare 61 Pa.C.S.A § 4503(5) unconstitutional,
to vacate his judgment of sentence, and to remand for imposition of an RRRI
sentence. Id. at 21.
In addressing Beish’s constitutional claims, we are mindful of the
following legal principles:
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All properly enacted statutes enjoy a strong presumption of
constitutionality. Commonwealth v. Bullock, 913 A.2d 207,
211 (2006), cert. denied, 550 U.S. 941 (2007); In re C.C.J., 799
A.2d 116 (Pa. Super. 2002).
Accordingly, a statute will not be declared unconstitutional unless
it clearly, palpably, and plainly violates the Constitution. All
doubts are to be resolved in favor of finding that the legislative
enactment passes constitutional muster. Thus, there is a very
heavy burden of persuasion upon one who challenges the
constitutionality of a statute. Pennsylvanians Against
Gambling Expansion Fund, Inc. et al. v. Commonwealth of
Pennsylvania, et al., 877 A.2d 383, 393 (Pa. 2005) (internal
citations omitted). Appellate review of constitutional challenges to
statutes, disputes over the legality of a sentence, a court's
application of a statute, and general questions of law involve a
plenary scope of review. Commonwealth v. McCoy, 895 A.2d
18, 24 (Pa. Super. 2006), affirmed, 975 A.2d 586 (2009). “As
with all questions of law, the appellate standard of review is de
novo....” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en
banc).
Com. v. Shawver, 18 A.3d 1190, 1193–94 (Pa. Super. 2011).
The Fourteenth Amendment provides in part: “‘nor shall any State
deprive any person of life, liberty, or property, without due process of law,’”
and protects “‘the individual against arbitrary action of government.’”
Commonwealth v. Turner, 80 A.3d 754, 763 (Pa. 2013) (quoting Kentucky
Dept. of Corr. v. Thompson, 490 U.S. 454, 459–60 (1989) (internal
citations omitted)).
Similarly, Article I, Section 9 of the Pennsylvania Constitution
guarantees a criminal defendant the right to due process of law.
Article I, Section 9 of the Pennsylvania Constitution and the
Fourteenth Amendment of the United States Constitution
guarantee a defendant the right to due process of law . . . . [T]he
due process provision of the Pennsylvania Constitution does not
provide greater protections than its federal counterpart. The
constitutional right to due process guarantees more than fair
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process, covering a substantive sphere as well, barring certain
government actions regardless of the fairness of the procedures
used to implement them.
Id. (internal citations and quotations omitted).
The due process clause of the federal and state constitutions protect life,
liberty, and property. However, the interests and rights protected thereby are
not unlimited. See Turner, 80 A.3d at 765. Thus, a due process challenge
necessarily must implicate the deprivation of an interest or right to a particular
thing. In order to determine whether a due process violation has occurred,
as suggested by Beish, we must initially examine whether a protected interest
or right exists. See Wilder v. Department of Corrections, 673 A.2d 30,
32 (Pa. Cmwlth. 1996); Vitek v. Jones, 445 U.S. 480, 487, (1980)
(identifying the threshold question as whether the complained of government
action implicated a liberty interest that is protected by the Due Process
Clause).
Beish suggests that his interest or fundamental right at issue in this
matter is his freedom from bodily restraint. Beish’s Brief at 14. Freedom
“from bodily restraint,” lies “‘at the core of the liberty protected by the Due
Process Clause.’” Turner v. Rogers, 564 U.S. 431, 445 (2011) (quoting
Foucha v. Louisiana, 504 U.S. 71, 80, (1992)). Although, generally, such
an interest or right exists for all individuals, we must consider the specific
interest or right in the context of this case and the statute at issue. Here, we
must determine whether Beish has a liberty interest or right in participating
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in the reduced minimum sentence program established under the RRRI
statute. We conclude that he does not.
Our decision in Commonwealth v. Robinson 7 A.3d 868 (Pa. Super.
2010) is instructive in this matter. There, we examined the RRRI statute in
some detail, in particular what the legislature intended to afford an offender
by its enactment. We stated:
Our review of the RRRI statute reveals that it is a treatment
program established by the legislature with the following purpose:
This chapter seeks to create a program that ensures
appropriate punishment for persons who commit crimes,
encourages inmate participation in evidence-based
programs that reduce the risks of future crime and ensures
the openness and accountability of the criminal justice
process while ensuring fairness to crime victims.
61 Pa.C.S.A. § 4502. The statute specifies that the intent of the
program is as follows:
(b) Intent.—This chapter is intended to encourage eligible
offenders committed to the custody of the department to
participate in and successfully complete evidence-based
programs under this chapter that reduce the likelihood of
recidivism and improve public safety.
61 Pa.C.S.A. § 4504(b). The legislature has defined the term
“program plan” as follows:
“Program plan.” An individualized plan recommended by the
department that contains approved treatment and other
approved programs designed to reduce recidivism risk of a
specific inmate.
61 Pa.C.S.A. § 4503.
The RRRI statute offers, as an incentive for completion of the
program, the opportunity for prisoners to be considered for
parole at the expiration of their RRRI minimum sentence.
61 Pa.C.S.A. § 4506. However, we must also observe that section
4511, which addresses construction of the RRRI statute,
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explicitly enumerates various legal rights which the statute
does not confer.
Robinson, 7 A.3d 868 at 874 (emphasis added). Specifically, section 4511
of the RRRI statute provides in relevant part that:
Notwithstanding any other provision of law, this chapter shall not
be construed to do any of the following:
(2) Confer any legal right on any individual to be released
parole under this chapter.
61 Pa.C.S.A. 4511(2). Our analysis of the RRRI statute in Robinson
continued as follows:
[T]he statute provides a treatment opportunity which is intended
to prevent recidivism. Also, as our Supreme Court explained in
Brittingham, Appellant has no vested “right” to be placed on
parole, because parole is an act of grace, not of right.
Consequently, we conclude that the statute does not increase any
rights due Appellant nor does it impose any legal burden or
additional punishment. Rather, as the Commonwealth notes in its
appellate brief, “[t]he [RRRI] Act extends relief to offenders
‘convicted of a criminal offense who will be committed to
the custody of the department....’ 61 Pa.C.S.A. § 4503.”
Robinson, 7 A.3d at 872–73 (emphasis modified).
Significantly, we observe that the Legislature did not create any
additional rights to convicted offenders by enacting the RRRI statute. We
confirmed this in Robinson. Instead, the Legislature created a special
program for certain offenders as a privilege, and it defined which offenders
were eligible.
Moreover, the RRRI statute does not grant or take away one’s freedom;
it offers an incentive to certain offenders, namely the opportunity to be
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considered for parole at the end of the RRRI minimum sentence. 61
Pa.C.S.A. § 4506. Important to our due process review are the words
“opportunity” and “parole”. First, the act only provides offenders an
opportunity to be considered. Clearly, this language does not afford an
offender the “right” to be released from imprisonment or a guarantee that he
would be. Many factors go into a determination to release an offender upon
serving a minimum sentence. Consequently, one could not have a reasonable
expectation of freedom from restraint under the circumstances attending this
program, even if he were determined to be RRRI eligible.
Second, the opportunity offered under the RRRI statute is parole. We
have stated parole is an act of grace, not of right. Robinson, 7 A.3d at 873.
Therefore, an offender has no vested “right” to be placed on parole. “‘Parole
is nothing more than a possibility, and, when granted, it is nothing more than
a favor granted upon a prisoner by the state as a matter of grace and mercy
shown by the Commonwealth to a convict who has demonstrated a probability
of his ability to function as a law-abiding citizen in society.’” Commonwealth
v. Becker, 172 A.3d 35, 38–39 (Pa. Super. 2017) (quoting Weaver v.
Pennsylvania Bd. of Prob. & Parole, 688 A.2d 766, 770 (Pa. Cmwlth.
1997)).
Consistent with this understanding of parole, it has been held that “a
prisoner petitioning for parole has no present liberty interests at stake because
of [the petitioner’s] state of incarceration.” Rogers v. Pa. Bd. of Prob. &
Parole, 724 A.2d 319, 322 (Pa. 1999); see Greenholtz v. Inmates of
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Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (citing
Meachum v. Fano, 427 U.S. 215, 224 (1976) (“[G]iven a valid conviction,
the criminal defendant has been constitutionally deprived of his liberty.”).
“Undoubtedly, a valid criminal conviction and prison sentence extinguish a
defendant's right to freedom from confinement.” Vitek, 445 U.S. at 493.
Here, Beish was convicted and already subject to the imposition of a
sentence consistent with the sentencing provisions. His liberty was already
duly restrained. Denying Beish RRRI eligibility did not extend his confinement
beyond that which is legally permissible or subject him to any greater restraint
or loss of liberty.
Based upon the foregoing legal principles, we conclude that no
defendant has a constitutional right or interest in participating in the RRRI
program. Thus, we decline to declare 61 Pa.C.S.A. § 4503(5) unconstitutional.
As a result, we further conclude Beish was not deprived of due process, either
procedural or substantive, when the trial court refused to find him RRRI
eligible under 61 Pa.C.S.A. § 4503 based on his pending charges.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2019
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