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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


                                     -2-
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

                                      -3-
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-
