Not All Burglaries Are Created Equal: Burglaries Are Not Necessarily Disqualifying For RRRI (Recidivism Risk Reduction Incentive) Consideration

In the recent case of Com. v. Abraham Gonzalez (687 EDA 2009 (PA Superior Ct., Dec. 13, 2010), a panel of the Superior Court ruled that burglaries on the record of an individual being sentenced to a state sentence are not necessarily disqualifying under the “past violent behavior” disability of the Recidivism Risk Reduction Incentive (RRRI) Statute (61 Pa.C.S.A. 4501 et seq.). The RRRI Act permits the sentencing judge to declare an individual RRRI eligible, thus enabling him to reduce the term of his minimum sentence if he complied with all the obligations of certain rehabilitative programs. For an individual to be eligible

  1. that a sentencing court must designate a sentence as an RRRI sentence whenever the defendant is eligible for that designation,3 and
  2. that 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, quoting 61 Pa.C.S.A. 4503.

In this case, Gonzalez had pled guilty to possession of a controlled substance with intent to deliver and was held to be disqualified for receiving RRRI consideration by the sentencing court because Gonzalez had an F-2 burglary on his record.

The panel stated that it was not clear that the legislature had intended to lump all burglaries together as constituting evidence of “present or past violent behavior.” In fact, in section 9714(g)of the Sentencing Code, addressing sentencing of recidivist offenders, the General Assembly seemed to indicate that only burglaries of the “home invasion” type would qualify, specifically because someone was present when it was committed.

Even though this case does not specifically address F-1 home burglaries in which no one was present, the underlying rationale of the case seems to indicate that for this panel of the Superior Court, all burglaries are not created equal for designating individuals eligible for RRRI consideration.

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