Com. v. Mack, A., Jr.

• Court: Superior Court of Pennsylvania
• Decided: February 3, 2020
• Docket: 1212 MDA 2019
• Status: Unpublished

Opinion

J-S65020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMOS MACK, JR. : : Appellant : No. 1212 MDA 2019

Appeal from the Judgment of Sentence Entered, May 1, 2019, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0001040-2017.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMOS MACK, JR. : : Appellant : No. 1213 MDA 2019

Appeal from the Judgment of Sentence Entered, May 1, 2019, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0000575-2018.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMOS MACK, JR. : : Appellant : No. 1214 MDA 2019

Appeal from the Judgment of Sentence Entered May 1, 2019 J-S65020-19

in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0000576-2018.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMOS MACK, JR. : : Appellant : No. 1215 MDA 2019

Appeal from the Judgment of Sentence Entered, May 1, 2019, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0001375-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 3, 2020

Amos Mack, Jr., appeals from the judgment of sentence entered

following his negotiated plea. Mack claims that the trial court erred in

concluding that he was ineligible for an RRRI (Recidivism Risk Reduction

Incentive) minimum sentence.1 Upon review, we affirm.

On May 1, 2019, Mack pled guilty to numerous and varied charges, the

details of which are not relevant to this appeal. Following his plea, the trial

court sentenced him to an aggregate sentence of 3 to 12 years of

incarceration. Mack asked the court to designate his sentence as RRRI

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 61 Pa.C.S.A. § 4501 et seq.

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eligible, but the court denied the request based upon Mack’s 2005 plea to

common law/strong arm robbery in South Carolina. Mack filed a post-trial

motion raising only the issue of his RRRI eligibility, which the trial court again

denied.

Mack timely appealed. Both Mack and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Mack raises the following single issue:

1) Did the trial court err by making [Mack] ineligible for RRRI based on a South Carolina robbery conviction which was classified as “non-violent?”

Mack’s Brief at 4.

A challenge to a court's failure to impose an RRRI sentence implicates

the legality of the sentence. Commonwealth v. Tobin, 89 A.3d 663, 670

(Pa. Super. 2014). “It is legal error to fail to impose an RRRI minimum

sentence on an eligible [person].” Id. “Our standard of review over such

questions is de novo and our scope of review is plenary.” Commonwealth v

Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014).

A person who has been convicted of certain “personal injury crimes,” as

defined under the Crime Victims Act, “or an equivalent offense under the laws

of . . . possessions, another state,” is not eligible for an RRRI sentence. 61

Pa.C.S.A. § 4503(3). Under that Act, robbery is such an offense. See 18 P.S.

§ 11.103 (definitions).

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When deciding whether a conviction from another state is equivalent

to an offense listed under the Crime Victims Act, the court must compare

the statute or law from the other state that defines the offense with the

Pennsylvania statute defining the same offense to determine whether the

two laws are “substantially equivalent.” Commonwealth v. Barbaro, 94

A.3d 389, 393 (Pa. Super. 2014). If they are not, then the court should

not consider the out of state conviction in determining RRRI eligibility. Id.

When comparing statutes, “the court must consider the elements of the

foreign offense in terms of classification of the conduct proscribed, its

definition of the offense, and the requirements for culpability.” Id. at 394

(emphasis omitted). Courts should not focus on the facts of the underlying

conviction “but rather the statute that triggered the conviction.”

Commonwealth v. Northrip, 985 A.2d 734, 741-42 (Pa. 2009).

Mack argues that the trial court should have imposed an RRRI minimum

sentence in accordance with 61 Pa.C.S.A. § 4505. Specifically, he argues that,

although South Carolina’s offense of common law/strong arm robbery is very

similar to robbery in Pennsylvania, Mack’s South Carolina sentencing order

indicated that his conduct, leading to the charge of this offense, was

considered non-violent, thereby distinguishing it from the Pennsylvania

robbery statute. Mack’s Brief at 9. According to Mack, Pennsylvania law

requires that a robbery include some sort of violent conduct or the threat of

violence. Id. at 10. Because robbery in South Carolina can be classified as

non-violent, it is not substantially equivalent to the Pennsylvania statute.

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Thus, Mack contends the trial court should not have considered this offense

when it held he was ineligible for an RRRI minimum sentence. Id.

As required, the trial court compared the Pennsylvania statute of

robbery, specifically 18 Pa.C.S.A. § 3701(a)(1)(v), to the South Carolina

offense of common law/strong arm robbery, SC ST 16-11–325.2 The trial

court concluded that they were substantially equivalent. Trial Court Opinion,

6/24/19, at 3-4.

Based upon our review, we agree with the trial court that the two

offenses are substantially equivalent. The trial court, in its opinion following

Mack’s post-trial motion, cogently analyzed the law and the applicability of the

South Carolina common law/strong arm robbery offense under the RRRI

statute. Accordingly, we adopt the trial court’s opinion regarding Mack’s RRRI

eligibility entered on June 24, 2019 as our own.3

We further note that South Carolina’s designation of Mack’s offense as

non-violent does not affect our conclusion. Contrary to Mack’s contention, the

Pennsylvania statute does not necessarily require that the robbery be violent.

Although some types of robbery set forth in 18 Pa.C.S.A. § 3701 contemplate

violent or threatening behavior, 18 Pa.C.S.A. § 3701(a)(1)(v) does not.

Instead, it only requires that the robbery have been committed by the use of

2As the trial court observed, this offense is not defined by statute but rather case law as it is a common law offense in South Carolina.

3 In the event of further proceedings, the litigants shall attach a copy of the trial court’s opinion to this memorandum.

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force, however slight, similar to Mack’s underlying conviction for common

law/strong robbery. See 18 Pa.C.S.A. § 3701(a)(1)(v); State v. Brown, 260

S.E.2d 719, 720 (S.C. 1979) (explaining that the common-law offense of

robbery is essentially the commission of larceny with force.”). This type of

robbery is not excluded from the definition of “personal injury crime” under

the Crime Victims Act, and therefore precludes an individual from being

eligible for an RRRI sentence.

Moreover, we observe that the use of force, which are elements of both

the Pennsylvania and South Carolina offenses, does not necessarily need to

be violent. “Violent” is a type of force which is uncontrolled, strong, rough or

intense.4 Again, the critical consideration is the comparison of the elements

of each offense, not the facts or circumstances of the particular incident. See

Northrip, supra. Thus, we agree with the trial court that Mack’s South

Carolina conviction renders him ineligible for an RRRI sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

4 “violent.” Dictionary.com. https://www.dictionary.com (last visited 1/14/20).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date:02/03/2020

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