J-S76017-18

2019 PA Super 111

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW BEISH, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

MATTHEW THOMAS BEISH, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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