J-S02043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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”
____________________________________________


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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