Com. v. Arvelo, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TONY RAY ARVELO
Appellant No. 1668 EDA 2014
Appeal from the Judgment of Sentence of March 14, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No.: CP-48-CR-0001560-2013
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 17, 2015
Tony Ray Arvelo appeals the May 20, 2014 judgment of sentence. We
affirm.
Following a jury trial, Arvelo was convicted of one count each of
aggravated assault, simple assault, and possession of instrument of crime,
and two counts of recklessly endangering another person.1 Sentencing was
scheduled for May 14, 2014. Approximately one week prior to sentencing,
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1
See 18 Pa.C.S. §§ 2701(a)(1), 2702(a)(2), 907, and 2705,
respectively. Arvelo was acquitted of one count each of attempted murder,
18 Pa.C.S. § 901 (18 Pa.C.S. § 2501), aggravated assault, and simple
assault.
Neither the parties nor the trial court set forth a summary of the facts
underlying Arvelo’s convictions. Presumably, they have declined to do so
because Arvelo’s present challenges concern only Arvelo’s sentence. For
that reason, the facts of this case are immaterial to our disposition, and we,
like the parties, discern no need to detail those facts here.
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the assistant district attorney informed counsel for Arvelo that the
Commonwealth intended to invoke the ten-year mandatory minimum
sentence that was applicable to Arvelo as a second strike offender pursuant
to Pennsylvania’s Three Strikes Law, 42 Pa.C.S. § 9714(a)(1), (d). Notes of
Testimony (“N.T.”), 3/14/2014, at 2. Two days before sentencing, the
assistant district attorney informed defense counsel for the second time that
the Commonwealth intended to pursue the mandatory minimum sentence.
Id. Defense counsel confirmed at sentencing that he had twice received the
Commonwealth’s notice. Id. Nonetheless, at sentencing, defense counsel
objected to the imposition of the second-strike mandatory minimum
sentence. Id. at 2-4. The trial court overruled the objection, and, on March
14, 2014, sentenced Arvelo in accordance with § 9714(a)(1) to ten to
twenty years’ incarceration on the aggravated assault count. The trial court
also sentenced Arvelo to fourteen to twenty-eight months’ incarceration on
the possession of instrument of a crime count, and twelve to twenty-four
months’ incarceration on the recklessly endangering another person count.
The court ordered that the sentences run consecutively to each other,
resulting in an aggregate sentence of twelve years and two months to
twenty-four years and four months’ incarceration.
On March 24, 2014, Arvelo filed a motion for reconsideration of his
sentence. Following a hearing, the trial court denied Arvelo’s motion. On
June 4, 2014, Arvelo filed a timely notice of appeal. In response, the trial
court directed Arvelo to file a concise statement of errors complained of on
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appeal pursuant to Pa.R.A.P. 1925(b). On June 19, 2014, Arvelo filed a
timely concise statement. On June 26, 2014, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Arvelo presents the following question for our review:
Did the trial court abuse its discretion and sentence [Arvelo]
excessively and improperly in allowing the Commonwealth to
seek the mandatory second strike when they failed to give notice
to defense counsel and [Arvelo], where the first case occurred
when [Arvelo] was seventeen years old and when the mandatory
minimum statutes have been ruled unconstitutional?
Brief for Arvelo at 7. Although Arvelo presents a single statement of the
question presented in this appeal, he actually raises three distinct questions
that we must review: (1) whether the Commonwealth gave reasonable
notice of their intent to pursue the second strike mandatory minimum
sentence, id. at 10; (2) whether Arvelo’s first violent felony conviction
should be considered a first strike because it occurred when he was
seventeen years-old, id. at 11; and (3) whether the mandatory minimum
provisions of the Three Strikes Law are constitutional pursuant to the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (U.S. 2013), id. at 11. We take each inquiry in turn.
Although Arvelo structures his claims as challenges to the trial court’s
discretion, challenges involving the application of a mandatory minimum
sentence pursuant to Pennsylvania’s Three Strikes Law are challenges to the
legality of the sentence imposed. See Commonwealth v. Norris, 819 A.2d
568, 571 (Pa. Super. 2003) (citing Commonwealth v. Edrington, 780
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A.2d 721, 723 (Pa. Super. 2001)). Accordingly, our scope of review is
plenary, and our standard of review is limited to ascertaining whether the
trial court committed an error of law. See Commonwealth v. Leverette,
911 A.2d 998, 1002 (Pa. Super. 2006).
Arvelo first maintains that the Commonwealth failed to provide him
with adequate notice of its intent to pursue the second-strike mandatory
minimum sentence pursuant to 42 Pa.C.S. § 9714(d). Arvelo notes that the
Commonwealth’s notice, given mere days before sentencing, was insufficient
to constitute reasonable notice pursuant to § 9714(d). We disagree.
Pursuant to § 9714(a), 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 mandatory minimum sentence of at
least ten years of total confinement. . . .” 42 Pa.C.S. § 9714(a)(1).
Because the provisions of this section are, by statute, not elements of any
particular offense, the Commonwealth is not obligated to provide a
defendant with notice of its intent to pursue the second-strike mandatory
sentence before trial. However, “reasonable notice of the Commonwealth’s
intention to proceed under [§ 9714(a)(1)] shall be provided after conviction
and before sentencing.” Id. § 9714(d) (emphasis added).
Arvelo admits that the Commonwealth notified him of its intent, but
nonetheless contends that the notice was insufficient to trigger the
application of the mandatory sentence because the notice was late in the
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proceedings and because it was given informally instead of in writing.
However, the statute does not require that notice be given in any particular
manner, or at any particular time. Subsection 9714(d) requires only that
the notice be “reasonable” and that it be given after conviction and before
sentencing.
The record confirms that the Commonwealth twice provided Arvelo
with notice, once approximately one week before sentencing and once two
days before sentencing. Our only inquiry at this juncture is whether it was
reasonable to provide notice so close in time to Arvelo’s sentencing. In light
of our binding case law, we hold that the Commonwealth’s notice in this case
was reasonable. For example, in Commonwealth v. Taylor, 831 A.2d 661(Pa. Super. 2003), the Commonwealth notified Taylor by fax at least two,
and as many as three, days before sentencing that it intended to have
Taylor sentenced to the mandatory minimum sentence as a second-strike
offender. Id. at 666-67. We held that the Commonwealth’s notice was
reasonable, even though only two or three days before sentencing, because,
inter alia, Taylor had not indicated at sentencing that he was unprepared to
challenge the application of § 9714(a)(1), nor did he seek a continuance in
order to make such a challenge. Id.; see also Commonwealth v.
Saksek, 522 A.2d 70, 72 (Pa. Super. 1987) (holding that notice given three
days before sentencing was reasonable for purposes of applying the
mandatory minimum sentence).
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Here, Arvelo received notice within the same general timeframe as
occurred in Taylor. Additionally, Arvelo was prepared to challenge the
application of the mandatory sentence and he did not request, nor indicate
that he needed, more time to prepare such a challenge. Thus, pursuant to
Taylor and Saksek, supra, Arvelo is not entitled to relief.
In his second contention, Arvelo contends that his first conviction for a
violent crime should not be considered a first strike for purposes of
subsection 9714(a)(1) because he “was not an adult when the first crime of
violence occurred and yet he was sentenced as a second strike violent felony
which gave him 10 to 20 years in a state prison.” Brief for Arvelo at 11.
This statement constitutes the entirety of Arvelo’s argument on this point.
Conspicuously absent is any reference to case law or statutory law
supporting the contention that an act committed while a juvenile cannot
constitute a first strike for purposes of subsection 9714(a)(1). See
Pa.R.A.P. 2119(a) (“The argument shall be . . . followed by such discussion
and citation of authorities as are deemed pertinent.”).
Regardless of Arvelo’s briefing inadequacies, his claim does not merit
relief. To be a first strike, a prior conviction must be a “crime of violence,”
which is defined as follows:
As used in this section, the term “crime of violence” means
murder of the third degree, voluntary manslaughter,
manslaughter of a law enforcement officer as defined in 18
Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law
enforcement officer), murder of the third degree involving an
unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to
murder of unborn child), aggravated assault of an unborn child
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as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault
of unborn child), aggravated assault as defined in 18 Pa.C.S. §
2702(a)(1) or (2) (relating to aggravated assault), assault of law
enforcement officer as defined in 18 Pa.C.S. § 2702.1 (relating
to assault of law enforcement officer), use of weapons of mass
destruction as defined in 18 Pa.C.S. § 2716(b) (relating to
weapons of mass destruction), terrorism as defined in 18 Pa.C.S.
§ 2717(b)(2) (relating to terrorism), trafficking of persons when
the offense is graded as a felony of the first degree as provided
in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape,
involuntary deviate sexual intercourse, aggravated indecent
assault, incest, sexual assault, arson endangering persons or
aggravated arson as defined in 18 Pa.C.S. § 3301(a) or (a.1)
(relating to arson and related offenses), ecoterrorism as
classified in 18 Pa.C.S. § 3311(b)(3) (relating to ecoterrorism),
kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1)
(relating to burglary), robbery as defined in 18 Pa.C.S. §
3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a
motor vehicle, drug delivery resulting in death as defined in 18
Pa.C.S. § 2506(a) (relating to drug delivery resulting in death),
or criminal attempt, criminal conspiracy or criminal solicitation to
commit murder or any of the offenses listed above, or an
equivalent crime under the laws of this Commonwealth in effect
at the time of the commission of that offense or an equivalent
crime in another jurisdiction.
42 Pa.C.S. § 9714(g). Notably, the definition of a crime of violence does not
include a provision that requires the delineated crimes to be committed only
by those over the age of eighteen. Had Arvelo been adjudicated delinquent
as a juvenile on his prior robbery, that adjudication would not be considered
a first strike. See Commonwealth v. Thomas, 743 A.2d 460, 468 (Pa.
Super. 1999). But that was not the case. Arvelo was tried and convicted as
an adult for the crime of robbery. So long as Arvelo was convicted as an
adult, the fact that he was seventeen at the time that he committed the
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offense is immaterial to determining whether his robbery constituted a first
strike. Arvelo’s second argument has no merit.
In his final contention, Arvelo argues that the mandatory sentencing
provisions of the Three Strikes Law are unconstitutional pursuant to the
United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151 (U.S. 2013). Recently, in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014), and progeny, this Court has declared various
mandatory minimum sentence statutes to be unconstitutional in light of
Alleyne.2 Arvelo contends that the mandatory sentencing provisions in the
Three Strikes Law must meet the same unconstitutional fate as those
provisions that we have recently struck down under Alleyne. We disagree.
In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), we
presented the relevant portion of the Alleyne Court’s rationale as follows:
In Alleyne, the Supreme Court held that “facts that increase
mandatory minimum sentences must be submitted to the jury”
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2
In Newman, we struck down as unconstitutional the mandatory
minimum sentence that was applicable to a convicted drug offender when a
firearm is found on a drug dealer, an accomplice, or in the vicinity of the
contraband pursuant to 42 Pa.C.S. § 9712.1. See Newman, 99 A.3d at 98,
101-02. In Commonwealth v. Valentino, 101 A.3d 801 (Pa. Super.
2014), we held that, pursuant to Newman and Alleyne, the mandatory
minimum sentences set forth at 42 Pa.C.S. § 9712 (pertaining to the
commission of certain crimes with a firearm) and § 9713 (pertaining to
crimes committed on public transportation), also were unconstitutional. Id.
at 812. See also Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa.
Super. 2014) (applying Alleyne and recognizing that the mandatory
minimum sentences associated with the weight of narcotics possessed by a
drug dealer pursuant to 42 Pa.C.S. § 7508 are unconstitutional).
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and must be found beyond a reasonable doubt. Alleyne, supra
at 2163. Alleyne is an extension of the Supreme Court’s line of
cases beginning with Apprendi v. New Jersey, 530 U.S. 466(2000). In Alleyne, the Court overruled Harris v. United
States, 536 U.S. 545 (2002), in which the Court had reached
the opposite conclusion, explaining that there is no constitutional
distinction between judicial fact[-]finding which raises the
minimum sentence and that which raises the maximum
sentence.
It is impossible to dissociate the floor of a sentencing
range from the penalty affixed to the crime. Indeed,
criminal statutes have long specified both the floor and
ceiling of sentence ranges, which is evidence that both
define the legally prescribed penalty. This historical
practice allowed those who violated the law to know, ex
ante, the contours of the penalty that the legislature
affixed to the crime—and comports with the obvious truth
that the floor of a mandatory range is as relevant to
wrongdoers as the ceiling. A fact that increases a
sentencing floor, thus, forms an essential ingredient of the
offense.
Moreover, it is impossible to dispute that facts increasing
the legally prescribed floor aggravate the punishment.
Elevating the low-end of a sentencing range heightens the
loss of liberty associated with the crime: the defendant’s
expected punishment has increased as a result of the
narrowed range and the prosecution is empowered, by
invoking the mandatory minimum, to require the judge to
impose a higher punishment than he might wish. Why
else would Congress link an increased mandatory
minimum to a particular aggravating fact other than to
heighten the consequences for that behavior? This reality
demonstrates that the core crime and the fact triggering
the mandatory minimum sentence together constitute a
new, aggravated crime, each element of which must be
submitted to the jury.
Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and
citations omitted).
Miller, 102 A.3d at 994-95 (citations modified).
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As noted in Miller, Alleyne is an extension of the Supreme Court’s
decision in Apprendi, wherein the Court held that any fact that increased a
penalty beyond a statutory maximum must be submitted to a jury and
proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Critically,
the Apprendi Court specifically exempted the fact of a prior conviction from
its holding. Id. Thus, the existence of a prior conviction does not need to
be presented to a jury and proven beyond a reasonable doubt before a trial
court may impose a mandatory sentence based upon that conviction. See
Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2013) (“Prior
convictions are the remaining exception to [Apprendi and Alleyne], insofar
as a fact-finder is not required to determine disputed convictions beyond a
reasonable doubt to comport with the Sixth Amendment jury trial right.”).
Because the application of the mandatory sentence for a second strike is
trigged exclusively by the existence of a prior conviction, see 42 Pa.C.S. §
9714(a) and (g), Alleyne has no application herein. The trial court’s
imposition of a mandatory minimum sentence on Arvelo as a second strike
offender was not unconstitutional.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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