Com. v. Giuliano, P. ( 2017 )


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  • J-S06015-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    PAUL E. GIULIANO
    Appellant                  No. 2311 EDA 2016
    Appeal from the Judgment of Sentence June 16, 2016
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0006604-2014
    BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
    MEMORANDUM BY MOULTON, J.:                               FILED JUNE 20, 2017
    Paul E. Giuliano appeals from the June 16, 2016 judgment of sentence
    entered in the Delaware County Court of Common Pleas after a jury
    convicted him of burglary (overnight accommodation and person present)
    and criminal trespass (enter structure).1 We affirm.
    The trial court set forth the following factual and procedural history:
    On September 15, 2014, at 11:05 a.m.[,] Haverford
    Township Police responded to . . . a burglary. The burglar
    fled and [Giuliano] was later taken into custody and
    positively identified by the homeowner. After a two-day
    jury trial, [Giuliano] was found guilty on August 26, 2015.
    On September 28, 2015, this Court sentenced [Giuliano]
    on Count 1, Burglary, to a sentence of 10-20 years[’]
    confinement plus 5 years[’] consecutive probation. On
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S. §§ 3502(a)(1) and 3503(a)(1)(i), respectively.
    J-S06015-17
    October 2, 2015, [Giuliano]’s counsel filed a timely Notice
    of Appeal.
    The sentence was illegal since the aggregate total
    exceeded the twenty-year statutory maximum by a period
    of five years. The attorney for the Commonwealth and
    [Giuliano]’s attorney were in agreement that the case
    should be remanded to the Trial Court for re-sentencing.
    The parties entered a Stipulation requesting that the
    Judgment of Sentence be vacated, and the case remanded
    for re-sentencing. The Court agreed with the parties. On
    April 1, 2016, the Superior Court vacated the Judgment of
    Sentence and remanded the matter.
    On June 16, 2016, [Giuliano] was re-sentenced to an
    aggregate total that did not exceed the twenty-year
    statutory maximum. The Court sentenced [Giuliano]: on
    Count 1, Burglary, to a sentence of 10-20 years SCI, and
    on Count 2, Criminal Trespass, merges with Count 1. The
    Court sentenced [Giuliano] pursuant to 42 Pa.C.S. § 9714
    and notice was properly served upon Defense Counsel, a
    copy which [was] attached to [the] Sentencing Sheet . . . .
    Trial Ct. Op., 8/23/16, at 1-2 (“1925(a) Op.”) (internal citations and
    quotation marks omitted). On July 14, 2016, Giuliano filed a timely notice of
    appeal.
    Giuliano raises the following question on appeal:
    Whether the mandatory sentence imposed pursuant to 42
    Pa.C.S. § 9714 is illegal since that mandatory provision
    and its triggering facts were not charged in the bill of
    information, and because the government was not
    required to prove that it applied, beyond a reasonable
    doubt, to a jury?
    Giuliano’s Br. at 5 (trial court answer omitted).
    Giuliano claims that his mandatory minimum sentence pursuant to
    section 9714 of the Sentencing Code is illegal. Our standard of review on
    such matters is well settled:
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    J-S06015-17
    Generally, a challenge to the application of a mandatory
    minimum sentence is a non-waivable challenge to the
    legality of the sentence. Issues relating to the legality of a
    sentence are questions of law, as are claims raising a
    court’s interpretation of a statute. Our standard of review
    over such questions is de novo and our scope of review is
    plenary.
    Commonwealth v. Hawkins, 
    45 A.3d 1123
    , 1130 (Pa.Super. 2012)
    (quoting Commonwealth v. Brougher, 
    978 A.2d 373
    , 377 (Pa.Super.
    2009)).
    Section 9714 of the Sentencing Code provides, in part:
    (a) Mandatory sentence.--
    (1) Any person who is convicted in any court of this
    Commonwealth of a crime of violence shall, if at the time
    of the commission of the current offense the person had
    previously been convicted of a crime of violence, be
    sentenced to a minimum sentence of at least ten years of
    total confinement, notwithstanding any other provision of
    this title or other statute to the contrary. Upon a second
    conviction for a crime of violence, the court shall give the
    person oral and written notice of the penalties under this
    section for a third conviction for a crime of violence.
    Failure to provide such notice shall not render the offender
    ineligible to be sentenced under paragraph (2).
    (a.1) Mandatory maximum.--An offender sentenced to
    a mandatory minimum sentence under this section shall be
    sentenced to a maximum sentence equal to twice the
    mandatory minimum sentence, notwithstanding 18 Pa.C.S.
    § 1103 (relating to sentence of imprisonment for felony) or
    any other provision of this title or other statute to the
    contrary.
    ...
    (d) Proof at sentencing.--Provisions of this section shall
    not be an element of the crime and notice thereof to the
    defendant shall not be required prior to conviction, but
    reasonable notice of the Commonwealth's intention to
    proceed under this section shall be provided after
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    J-S06015-17
    conviction and before sentencing. The applicability of this
    section shall be determined at sentencing. The sentencing
    court, prior to imposing sentence on an offender under
    subsection (a), shall have a complete record of the
    previous convictions of the offender, copies of which shall
    be furnished to the offender. If the offender or the
    attorney for the Commonwealth contests the accuracy of
    the record, the court shall schedule a hearing and direct
    the offender and the attorney for the Commonwealth to
    submit evidence regarding the previous convictions of the
    offender. The court shall then determine, by a
    preponderance of the evidence, the previous convictions of
    the offender and, if this section is applicable, shall impose
    sentence in accordance with this section. Should a
    previous conviction be vacated and an acquittal or final
    discharge entered subsequent to imposition of sentence
    under this section, the offender shall have the right to
    petition the sentencing court for reconsideration of
    sentence if this section would not have been applicable
    except for the conviction which was vacated.
    42 Pa.C.S. § 9714(a), (a.1), and (d). Robbery is a crime of violence under
    section 9714. Id. § 9714(g).
    First, Giuliano argues that his sentence is illegal because the
    Commonwealth failed to include his prior conviction for robbery in the bill of
    information and never amended the bill of information.
    We conclude that Giuliano’s claim is meritless.      Section 9714 clearly
    states that notice to the defendant that the Commonwealth is seeking a
    mandatory minimum under section 9714 “shall not be required prior to
    conviction, but . . . shall be provided after conviction and before sentencing.”
    42   Pa.C.S.   §   9714(d).    We   agree   with   the   trial   court   that   “the
    Commonwealth has no obligation to provide the defendant notice in the
    charging document,” 1925(a) Op. at 4, and that the Commonwealth
    -4-
    J-S06015-17
    provided the notice required by law, id. at 4-5; see also N.T., 6/16/16, at
    4, 8-9 (trial court and re-sentencing counsel agree that Giuliano received
    notice that the Commonwealth sought a mandatory minimum sentence
    before both his original sentencing and his re-sentencing).2
    Second, Giuliano argues that section 9714 is unconstitutional pursuant
    to the United States Supreme Court’s decision in Alleyne v. United States,
    ____________________________________________
    2
    Giuliano did not challenge the reasonableness of the
    Commonwealth’s notice. Even had Giuliano lodged such a claim, the trial
    court correctly concluded that the Commonwealth’s notice was proper:
    In the case sub judice, the Commonwealth notified
    [Giuliano]’s counsel in writing four (4) days prior to
    sentencing.    The assistant district attorney informed
    [Giuliano]’s counsel that the Commonwealth intended to
    invoke the ten-year mandatory minimum sentence that
    was applicable to [Giuliano] as a second strike offender
    pursuant to [section 9714].      The letter included an
    attachment with a Judgment of Sentence from April 6,
    2004 evidencing [Giuliano]’s prior conviction for robbery.
    The letter was dated September 24, 2015 and sentencing
    was September 28, 2015.
    ...
    The statute does require that the notice be reasonable
    and the question becomes whether four days written
    notice is reasonable. The Pennsylvania Superior Court in
    Commonwealth v. Taylor, 
    831 A.2d 661
     (Pa.Super.
    2003), determined that the Commonwealth notified the
    defendant 2-3 days before sentencing of the intention to
    proceed to sentence the defendant under the mandatory
    minimum sentence as a second-strike offender and the
    Court held such short notice was reasonable.
    1925(a) Op. at 4-5.
    -5-
    J-S06015-17
    
    133 S.Ct. 2151
     (2013), which he contends requires the Commonwealth to
    prove       section   9714’s    “triggering    facts   beyond   a   reasonable   doubt.”
    Giuliano’s Br. at 17.      Giuliano recognizes that this Court has “rejected an
    Alleyne based challenge to [s]ection 9714. . . . [but] invites this court to
    revisit the issue.” Id. at 18.
    We conclude that Giuliano is not entitled to relief. As Giuliano admits,
    this Court has rejected Alleyne-based challenges to section 9714.                   See
    Commonwealth v. Reid, 
    117 A.3d 777
    , 785 (Pa.Super. 2015) (“Alleyne
    did not overturn prior precedent that prior convictions are sentencing factors
    and not elements of offenses. . . . [a]ccordingly, . . . section [9714] is not
    unconstitutional under Alleyne”); see also Commonwealth v. Bragg, 
    133 A.3d 328
    , 333 (Pa.Super.), app. granted in part, 
    143 A.3d 890
     (Pa. 2016)
    (“In . . . Reid, . . . this Court specifically found that [s]ection 9714 is not
    rendered unconstitutional under Alleyne as it provides for mandatory
    minimum sentences based on prior convictions.”). This panel lacks authority
    to revisit this issue.3        Accordingly, we conclude that Giuliano’s mandatory
    minimum sentence, imposed pursuant to section 9714, is legal.
    ____________________________________________
    3
    We recognize that the Pennsylvania Supreme Court has granted
    allowance of appeal in Bragg and three other cases to examine the
    constitutionality of section 9714. See Bragg, 143 A.3d at 890. However,
    until our Supreme Court issues a decision in Bragg, we are bound by this
    Court’s prior conclusion that section 9714 is constitutional.            See
    Commonwealth v. Slocum, 
    86 A.3d 272
    , 278 n.9 (Pa.Super. 2014) (“This
    Court is bound by existing precedent under the doctrine of stare decisis and
    (Footnote Continued Next Page)
    -6-
    J-S06015-17
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/20/2017
    _______________________
    (Footnote Continued)
    continues to follow controlling precedent as long as the decision has not
    been overturned by our Supreme Court.”).
    -7-
    

Document Info

Docket Number: Com. v. Giuliano, P. No. 2311 EDA 2016

Filed Date: 6/20/2017

Precedential Status: Precedential

Modified Date: 6/20/2017