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Commonwealth v. Barbaro

Superior Court of Pennsylvania

June 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN PATRICK BARBARO, Appellant

Submitted March 17, 2014.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Adams County, Criminal Division, No. CP-01-CR-0000469-2013. Before GEORGE, J.

Kristin L. Rice, Gettysburg, for appellant.

Robert A. Bain, II, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

BEFORE: PANELLA, DONOHUE and MUNDY, JJ.

OPINION

Page 390

DONOHUE, J.:

Appellant, John Patrick Barbaro (" Barbaro" ), appeals from the judgment of sentence entered on August 8, 2013 by the Court of Common Pleas, Adams County, Criminal Division, following his guilty plea to charges of theft by deception and conspiracy to commit theft by deception.[1] Barbaro challenges the trial court's ruling that he is ineligible for sentencing pursuant to the Recidivism Risk Reduction Incentive Act, 61 Pa.C.S.A. § § 4501, et seq., (" the RRRI Act" ). After consideration of the arguments of the parties and our review of the record, the opinion of the trial court and relevant case law, we affirm.

The trial court aptly summarized the facts and procedural history in this case as follows:

[Barbaro] was charged by Criminal Complaint filed January 5, 2011 with theft by deception as a felony of the third degree, conspiracy to commit theft by deception as a felony of the third degree, conspiracy to issue bad checks as a misdemeanor of the first degree, [18 Pa.C.S.A. § 903(a),] and approximately 80 counts of issuing bad checks[,] [18 Pa.C.S.A § 4105]. That same date, an arrest warrant was issued for [Barbaro]'s arrest. On May 15, 2013, [Barbaro] was produced before a magisterial district judge and committed to the Adams County Prison on bail in the amount of $2,500. [Barbaro] was produced for arraignment on June 14, 2013. On August 5, 2013, he appeared before the Court and entered counseled pleas of guilty to theft by deception as a felony of the third degree and conspiracy to commit theft[,] also graded as a felony of the third degree. Pursuant to a negotiated plea agreement which was accepted by the Court, [Barbaro] was sentenced on the theft charge to serve no less than three years nor more than seven years in a state correctional institution followed by a consecutive three year probationary sentence imposed on the conspiracy conviction. [Barbaro] was determined to be ineligible for the Recidivism Risk Reduction Incentive (RRRI), 61 Pa. C.S.A. § 4503, due to prior convictions for arson in the third degree and attempted arson in the third degree in the state of New York. On August 15, 2013, [Barbaro] filed a Post[-]Sentence Motion challenging his ineligibility for RRRI. That motion was denied without hearing by Order dated August 20, 2013. [...]

Page 391

Trial Court Opinion, 11/7/13, at 1-2 (footnotes omitted).

After the trial court denied Barbaro's untimely motion for reconsideration on September 9, 2013, he filed this appeal on September 16, 2013. On appeal, Barbaro raises the following issue for our review:[2]

1. Was it an error or law to deny [Barbaro]'s Post-Sentence Motion to determine him RRRI-eligible in spite of prior convictions in New York State for arson and attempted arson in the third degree?

Barbaro contends that the trial court committed an error of law when it denied his post-sentence motion to classify him as RRRI eligible based on his prior arson conviction in New York. Barbaro's Brief at 9-14. Barbaro argues that his previous conviction in New York for arson in the third degree, N.Y. Penal Law § 150.10, should not exclude him from the RRRI program because the crime of arson in the third degree in New York is a non-violent crime. Id. at 9-10. Accordingly, Barbaro asserts that to deny him RRRI eligibility would frustrate the legislative intent of enacting the RRRI program, which was to ensure that non-violent offenders receive the appropriate punishment for their crimes and participate in the non-recidivist sentencing program. Id. at 10, 13.

This issue presents a question of statutory construction and implicates the legality of the sentence imposed. Therefore, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Northrip, 603 Pa. 544, 985 A.2d 734, 736 (Pa. 2009) (citations omitted).

The RRRI Act

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; see Commonwealth v. Gonzalez, 2010 PA Super. 229, 10 A.3d 1260, 1262 (Pa. Super. 2010), appeal denied, 610 Pa. 606, 21 A.3d 1190 (Pa. 2011). Under the RRRI Act:

(1) . . . a sentencing court must designate a sentence as an RRRI sentence whenever the defendant is eligible for that designation, and (2) . . . a defendant is eligible for that designation if he has not been previously convicted of certain enumerated offenses and " [d]oes not demonstrate a history of present or past violent behavior."

Gonzalez, 10 A.3d at 1262 (quoting 61 Pa.C.S.A. § 4503; footnote omitted; emphasis in original). Therefore, the RRRI Act requires the sentencing court to determine whether the defendant is an " eligible offender." 61 Pa.C.S.A. § 4505(a). The RRRI Act defines an " eligible offender," in part, as:

"Eligible Offender."

A defendant or inmate convicted of a criminal offense who will be committed to the custody of

Page 392

the department and who meets all of the following ...

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