J-S74008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
JUSTIN DIPANFILO                       :
                                       :
                  Appellant            :    No. 1004 EDA 2017

          Appeal from the Judgment of Sentence March 23, 2017
 In the Court of Common Pleas of Montgomery County Criminal Division at
                    No(s): CP-46-CR-0009378-2012


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 15, 2018

     Justin DiPanfilo appeals from the judgment of sentence of eleven to

twenty-two years incarceration plus five years probation, imposed following

a bench trial wherein he was convicted of burglary, his second such crime of

violence, criminal trespass, simple assault, theft by unlawful taking,

receiving stolen property, possessing an instrument of crime, and attempted

theft by unlawful taking. We affirm.

     On November 13, 2012, Appellant was released from a term of one to

three years imprisonment at the Montgomery County Correctional Facility for

an offense unrelated to this matter.       At approximately 2:30 p.m., on

November 14, 2012, Janette Kauffman returned to her home in Montgomery

Township, Montgomery County. Upon pulling her car into the garage, Ms.

Kauffman observed that a door leading from the garage into her laundry

room was ajar. She saw Appellant within her laundry room, and after Ms.
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Kauffman asked who he was, Appellant replied that he was there to rob her.

After Appellant attempted and failed to close the garage door intending to

trap Ms. Kauffman within, he assaulted her. At the same time, a landscaper,

Matthew Young, working nearby, overheard Ms. Kauffman screaming.         Mr.

Young proceeded to Ms. Kauffman’s driveway, where he witnessed a scuffle

between Appellant and Ms. Kauffman.       He immediately called the police.

Subsequently, Appellant fled from the area, followed closely by Mr. Young,

who remained on the line with emergency services detailing Appellant’s

whereabouts.

     Shortly thereafter, police officers arrived, located Appellant, and

arrested him. During a search incident to arrest, the officers discovered on

Appellant’s person an iPod and gold necklace belonging to Ms. Kauffman. A

detective then drove Ms. Kauffman to the scene of the arrest, where she

positively identified Appellant as the individual she encountered in her

garage. Detectives also investigated the interior of Ms. Kauffman’s house,

wherein they found evidence of a forced entry through a rear kitchen

window and a large amount of personal property, which had been sorted and

placed into piles and pillowcases. Numerous rooms were ransacked.

     Based on the foregoing, Appellant was charged with the above-

enumerated offenses and other related crimes. Trial was delayed until the

court determined that Appellant was mentally fit for trial. Following a bench

trial on December 14, 2015, Appellant was convicted of the crimes noted

above. On December 18, 2015, the Commonwealth filed its notice of intent

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to seek a mandatory sentence pursuant to 42 Pa.C.S. § 9714, based on

Appellant’s prior conviction for a crime of violence.1 On March 23, 2016, the

court, utilizing, in part, a mandatory minimum sentence of ten to twenty

years incarceration resulting from Appellant’s second conviction for a crime

of violence, imposed an aggregate sentence of eleven to twenty-two years

imprisonment, followed by five years probation.

       At this point, the procedural history becomes somewhat convoluted.

Of import herein, on February 7, 2017, the trial court filed an order

reinstating Appellant’s post-sentence motion and direct appeal rights

following Appellant’s successful petition filed pursuant to the Post-Conviction

Relief Act.   Appellant filed a post-sentence motion, which, after a hearing,

the trial court denied. He filed a timely notice of appeal, and complied with

the trial court’s order to file a 1925(b) concise statement of errors

complained of on appeal. The trial court authored its Rule 1925(a) opinion,

and this matter is now ready for our review.

       Appellant raises a single question for our consideration: “Did the Trial

Court err in sentencing [Appellant] as a multiple ‘strike’ offender when

[Appellant] had not been released from incarceration for a sufficient time to

have benefited from rehabilitation opportunities?” Appellant’s brief at 5.

____________________________________________


1 On November 7, 2003, Appellant pled guilty to one count of burglary and
one count of recklessly endangering another person, for which he received a
sentence of one and one-half to three years incarceration, plus two years
probation.



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      Appellant’s issue challenges the legality of his sentence. We observe,

      The scope and standard of review applied to determine the
      legality of a sentence are well[-]established. If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. In evaluating a trial court’s
      application of a statute, our standard of review is plenary and is
      limited to determining whether the trial court committed an error
      of law.

Commonwealth v. Armstrong, 74 A.3d 228, 239 (Pa.Super. 2013)

(citation omitted).

      The Sentencing Code provides, in pertinent 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 of 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).

42 Pa.C.S. § 9714(a).

      First, Appellant notes that, in the past nine years, he has remained

incarcerated for all but seventeen days in June to July of 2009. Moreover,

he spent the vast majority of time between 2003 and 2009 incarcerated.

Relying on Commonwealth v. Laverette, 911 A.2d 998, 1004 (Pa.Super.

2006), he maintains that a person must have an “opportunity to reform”



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before the mandatory minimum provisions contained within § 9714 can be

applied.   Appellant asserts that such an opportunity to reform must occur

“outside of supervision or incarceration[.]”       Appellant’s brief at 12.

Specifically, he contends that the trial court erred in finding that he had

sufficient time to reform his behavior for the purposes of § 9714 while he

was in prison. In this vein, he argues that the court’s presumption that a

person with significant mental health issues “is somehow capable of being

reformed while incarcerated is simply unjust and not in keeping with the

recidivist philosophy outlined in [Leverette, supra.]” Id. at 12-13. Rather,

Appellant continues, “[t]he rationale for the imposition of the mandatory

sentencing scheme is to punish people more stringently if they have had a

chance to resolve their behavior and have failed to do so.” Id. at 13.

      Appellant also assails the trial court’s reliance on Commonwealth v.

Fields, 107 A.3d 738 (Pa. 2014). In Fields, our Supreme Court noted that,

for the purposes of § 9714, “[r]eform opportunities, in this setting, are

periods where the defendant serves a term of incarceration and is then

released.” Appellant’s brief at 13 (citing Fields, supra at 635). He argues

that, since his crimes were committed less than twenty-four hours after his

release, he was not “meaningfully ‘released’ with time to reform in between

his first and second strikes.” Appellant’s brief at 14. Essentially, Appellant

claims that a person must have some significant, but unstated, opportunity

to reform while not incarcerated before a mandatory minimum sentence can


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be applied. Hence, since he committed a second crime of violence less than

twenty-four hours after being released from prison, and he was not afforded

that opportunity, the trial court erred in imposing a mandatory minimum

sentence pursuant to § 9714.

        Instantly, we find that the case law interpreting § 9714 does not

require that a person be afforded an opportunity to reform outside of prison

before the application of a second strike mandatory minimum sentence.

Rather, we find that the term of imprisonment is itself the opportunity to

reform contemplated by the Sentencing Code.

        As noted by Appellant, this Court in Leverette, supra, held that an

individual must be provided an “opportunity to reform” between his first and

second convictions in order for his sentence to be enhanced under § 9714.

Leverette, supra at 1004. However, the missed opportunity to reform in

Leverette resulted from the trial court’s imposition of a third-strike

sentence under 42 Pa.C.S. § 9714(a)(2),2 without the defendant having first

____________________________________________


2   In this regard, the Sentencing Code reads:

        (2) Where the person had at the time of the commission of the
        current offense the person had previously been convicted of two
        or more such crimes of violence arising from separate criminal
        transactions, the person shall be sentenced to a minimum
        sentence of at least 25 years of total confinement,
        notwithstanding any other provision of this title or other statute
        to the contrary. Proof that the offender received notice of or
        otherwise knew or should have known of the penalties under this
        paragraph shall not be required. Upon conviction for a third or
(Footnote Continued Next Page)


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been sentenced to a second strike term of imprisonment under §

9714(a)(1).

      In Leverette, this Court held that the trial court could not apply a

third-strike mandatory minimum sentence without the defendant having first

been sentenced for a second strike offense and its concomitant opportunity

to reform.    The lost opportunity to reform implicated by Leverette spoke

more directly to rehabilitation undertaken while incarcerated without

expressly finding, as Appellant would have us find, that rehabilitation must

be undertaken outside of confinement before § 9714 may be applied.

Indeed, we observed, “[a]s to the recidivist philosophy, this and other

Pennsylvania appellate courts have repeatedly recognized that, ‘the point of

sentence enhancements is to punish more severely offenders who have

persevered in criminal activity despite the theoretically beneficial effects of

penal discipline.’” Leverette, supra at 1003 (citing Commonwealth v.

Shiffler, 879 A.2d 185, 195 (Pa. 2005) (emphasis added)).


(Footnote Continued) _______________________

      subsequent crime of violence the court may, if it determines that
      25 years or total confinement is insufficient to protect the public
      safety, sentence the offender to life imprisonment without
      parole.

42 Pa.C.S. § 9714(a)(2). The Supreme Court affirmed a decision by this
Court holding that the mandatory minimum sentencing provisions contained
within § 9714 were constitutional. See Commonwealth v. Bragg, 133
A.3d 328 (Pa.Super. 2016) affirmed, 179 A.3d 1024 (Pa. 2017).




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       In addition, our High Court in Fields, supra, which held that a

defendant was subject to an enhanced sentence for each crime of violence

committed during a single criminal transaction, discussed the opportunity to

reform, stating

       Nor is our reading of subsection (a)(1) in substantial conflict with
       the recidivist-philosophy overlay that has been judicially
       superimposed onto Section 9714(a). Pursuant to that overlay,
       progressively harsher punishments are appropriate to one who,
       after being reproved and having a chance for reform, continues
       to engage in criminal activity. Reform opportunities, in this
       setting, are periods where the defendant serves a term of
       confinement and is then released.

Fields, supra at 635 (citations omitted).3       Elsewhere, the Supreme Court

has delineated the temporal framework applicable to § 9714, explaining,

“[i]n cases of recidivism, we expect the following sequence of events: first

offense, first conviction, first sentencing, second offense, second conviction,

second sentencing.”        Shiffler, supra at 192 (citing Commonwealth v.

Dickerson, 590 A.2d 766, 771 (Pa.Super. 1991)).             This is exactly the

sequence of events we face now, despite Appellant’s protestations to the

contrary.

____________________________________________


3  Our conclusion that the opportunity to reform contemplated by § 9714
refers to the time an individual spends in prison is further bolstered by the
philosophic    underpinnings    of  our    system     of   criminal   justice.
Commonwealth v. Williams, 652 A.2d 283, 285 n.1 (Pa. 1994) (noting
“five broad purposes of the penal system: protection of society, general
deterrence . . ., individual deterrence, rehabilitation, and retribution.”
(emphasis added)).




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      We find that the application of § 9714 to Appellant’s 2012 conviction

does not run afoul of the framework provided above. It is undisputed that

Appellant committed a first strike offense in 2003. He was initially released

from his term sentence in 2006.        After violating his probation, he was

resentenced to a term of imprisonment, from which he was ultimately

released in 2009. Appellant then served additional time in prison from 2009

to 2012 for an unrelated offense that did not constitute a crime of violence

under § 9714. Following his release from prison for the unrelated offense,

Appellant committed the second strike offense at issue herein.          That

Appellant committed this offense within twenty-four hours of his release is

irrelevant, as he enjoyed ample time while incarcerated between 2003 and

2012 to take advantage of the rehabilitative opportunities open to him. As

such, we find the trial court did not err in imposing a sentence of ten to

twenty years incarceration after it convicted Appellant of burglary, his

second crime of violence. No relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/18


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