HomeMy WebLinkAbout99-0268 criminal appeal]. A25013/00
COMMONWEALTH OF PENNSYLVANIA,
Appellee
LOUIS GREENLEY,
Appellant
IN THE SUPERIOR COURT OF
PEN NSYLVANIA
No. 95 MDA 2000
Appeal from the Order Entered October 29, 1999,
In the Court of Common Pleas of Cumberland County,
Criminal, No. 99-0268
BEFORE: McEWEN, P.]., LALLY-GREEN, and HESTER, ]].
MEMORANDUM' 1~ I ~,, I=
AUG 0 ? 2000
This direct appeal has been taken from the judgment of sentence to
serve a term of imprisonment of from 25 years to 50 years, imposed
pursuant to the mandatory sentencing provisions of 42 Pa.C.S. §
9714(a)(2)~ after appellant, Louis Greenley, was found guilty by a jury of
Section 9714(a)(2) of the Sentencing Code provides:
(2) Where the person had at the time of the commission of the
current offense 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
subsequent crime of violence the court may, if it determines that 25
years of total confinement is insufficient to protect the public safety,
sentence the offender to life imprisonment without parole.
42 Pa.C.S. § 9714(a)(2).
3. A25013/00
the offenses of robbery, aggravated assault, simple assault '(three counts),
and theft by unlawful taking or disposition.2 We affirm.
Appellant has provided the following summary of the procedural
history relevant to our review:
On 3uly 2:[, :[999, after a three-day jury trial, defendant
was found guilty of all of the charges.~ Additionally, prior
~ Robbery (18 Pa.C.S. § 3701(a)(i)-(v), aggravated
assault (18 Pa.C.S. § 2702(a)(:[)-(4), simple assault
(3 counts) (18 Pa.C.S. § 2701(a)(1)-(3), theft by
unlawful taking or disposition (:[8 Pa.C.S. § 392:[(a).
to trial, defendant had entered a plea of guilty to the
charge of persons not to possess, use, manufacture,
control, sell or transfer firearms.2 Prior to trial, the
2 18 Pa.C.S. § 6105.
Commonwealth presented defendant with a notice of
mandatory sentence pursuant to 42 Pa.C.S. § 97:[4,
indicating that if the defendant was convicted of robbery3
3 The mandatory sentence may be applicable if the
conviction is for :[8 Pa.C.$. § 3701(a)(:[)(i),(ii) or
(iii), all of which are graded as felonies of the first
degree.
and/or aggravated assault,4 the Commonwealth would
2 The sentence also included the charges of persons not to possess, use,
manufacture, control, sell or transfer firearms to which appellant pleaded
guilty prior to trial.
-2-
3. A25013/00
4 Tf a conviction is for 18 Pa.C.S. § 2702(a)(:L) or (2).
seek a mandatory minimum sentence of 25 years
imprisonment or life. After defendant was convicted, the
trial court set a sentencing date for September 14, 1999.
At the time that the trial court set a sentencing date, it
further directed that if either the defendant or the
Commonwealth believed that a hearing was necessary
prior to sentencing under Section 9714, that party should
inform the court and a hearing would be scheduled prior
to formal sentencing.
On August 19, 1999, defendant filed a motion challenging
the applicability and constitutionality of 42 Pa.C.S. §
9714. Based upon the defendant's challenge, the
sentencing court scheduled a hearing on defendant's
motion for September 21, 1999. At the sentencing
hearing, the Commonwealth presented testimony from
four witnesses. Three of these were police officers who
relayed the circumstances involved in appellant's prior
criminal offenses and the fourth was a customer service
clerk for the Allegheny County Clerk of Court's Office ....
At the conclusion of the sentencing hearing, defendant
argued and subsequently submitted a brief challenging
whether the Commonwealth had proven that appellant
was previously convicted of robbery pursuant to 18
Pa.C.S. § 3701(a)(1)(i),(ii), or (iii). Appellant also
challenged the statutory language of 42 Pa.C.S. §
9714(d) which only required the Commonwealth to prove
the requisite underlying prior convictions by a
preponderance of the evidence. Tn an order of court
dated October 13, 1999, the sentencing court held that
the Commonwealth need only prove appellant's prior
convictions by a preponderance of the evidence and that
the Commonwealth in fact had proven that appellant had
at least two prior convictions for robbery each graded as
felonies of the first degree which required the imposition
of a mandatory 25 year or life sentence.
3. A25013/00
On October 19, 1999, defendant was sentenced to a
cumulative sentence of 25 to 50 years pursuant to the
mandatory sentencing provisions of 42 Pa.C.S. §
9714(a)(2). Appellant filed a motion to modify sentence
on October 28, 1999. Appellant's motion to modify
sentence was denied on October 29, 1999, and this
appeal follows.
Appellant has framed, in his brief, two questions for our review:
Should the Commonwealth be required to prove a
defendant's prior convictions by clear and convincing
evidence in order to justify the imposition of a mandatory
sentence of 25 years or life?
When the court documents presented by the
Commonwealth fail to establish the felony gradings of the
prior robberies to which defendant [pleaded] guilty, did
the Commonwealth prove that defendant had prior
convictions of crimes of violence?
Appellant challenges the constitutionality of 42 Pa.C.S. § 9714(d)
which requires the Commonwealth to prove by a preponderance of the
evidence that the offender has previous convictions which trigger the
mandatory sentencing provisions of Section 9714. Section 9714(d)
provides:
(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
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
-4-
3. A25013/00
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(d) (emphasis supplied). Appellant argues, in his brief,
that "the requirement of the Iow burden of proof of preponderance of the
evidence violates appellant's right to procedural due process under the Fifth
and Fourteenth Amendments of the United States Constitution" and that "the
required burden of proof in order to meet the safeguards of procedural due
process is one of clear and convincing evidence."
We may summarily reject this argument as this Court, in
Commonwealth v. Brown, 741 A.2d 726 (Pa.Super. 1999), has recently
reiterated the holding of Commonwealth v. Allen, 508 Pa. 114, 121, 494
A.2d 1067, 1071 (1985), that the preponderance of the evidence standard
prescribed in 42 Pa.C.S. § 9714 satisfies the minimum requirements of due
process. Commonwealth v. Brown, supra, 741 A.2d at 734.3
3 We note that the recent decision of the United States Supreme Court in
Apprendi v. New .Tersey, 2000 U.S. Lexis 4304, decided .]une 26, 2000, is
not applicable to the issues raised in this appeal since the Court there held
that "[o]ther than the fact of a prior conviction~ any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
-5-
]. A25013/00
Appellant next challenges the sufficiency of the proof offered to
establish his prior convictions. Section 9714(a)(2) provides that, when the
Commonwealth proves that a person has two or more prior convictions for
crimes of violence arising from separate criminal transactions, "the person
shall be sentenced to a minimum sentence of at least 25 years total
confinement .... , 42 Pa.C.S. § 9714(a)(2). A "crime of violence" is defined,
in relevant part, as "robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i),(ii) or
(iii)." 42 Pa.C.S. § 9714(g). Appellant argues that the Commonwealth
failed to sustain its burden of proof because exhibits i and 2 offered by the
Commonwealth failed to establish the charges and grading for each of the
offenses to which appellant pleaded guilty. Appellant also argues that the
Commonwealth's exhibit 3 shows that the judgment of sentence for one of
his prior convictions was vacated. Specifically, appellant argues:
The first two pages of Commonwealth's exhibit i contain
the dispositional information for the case. The third,
fourth and fifth pages consist of the criminal informations
that were filed in the case. The pertinent part on page 1
of Commonwealth's exhibit I states in part, "the
defendant present in open court with counsel, pleads
guilty to the preferred charges in the
within information." Nowhere in this dispositional
information does it indicate to what charge from the
information defendant pled guilty or what was the grading
of the charge. Furthermore, defendant was sentenced to
pay a fine, costs of prosecution, and undergo
submitted to a jury." Xd. at ~43 (emphasis supplied). See: Almendarez-
Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L. Ed.2d 350 (1998)
(holding that a recidivist sentencing enhancement which increased the
permissible maximum sentence to life imprisonment was not
unconstitutional).
-6-
3. A25013/00
imprisonment of no less than two to five years in a state
correctional institution. The sentence imposed by the
court by the stated maximum term of imprisonment in no
way sheds light on whether defendant was sentenced for
a charge of robbery or if he was what was the grading of
the robbery charge. Since the maximum sentence was
five years, the grading of the robbery could have been a
felony of the third degree which would not constitute a
"crime of violence" as defined in Section 9714 of Title 42.
Commonwealth's exhibit 2 relates to charges captioned at
9112070 of the Allegheny Clerk of Court's records. As
with Commonwealth's exhibit 1, the first page of the
exhibit contained the dispositional information for the
case. The second page of the exhibit contained the
criminal information filed in the case. Nowhere on the
first page of the document did it indicate the charge or
the grading of the offense to which defendant pled guilty.
On the first page of Commonwealth's exhibit 2, it states
in part, "the defendant present in open court with counsel
pleads guilty to the preferred charges in
the within information." Defendant was sentenced
merely to pay the costs of prosecution and restitution. As
with the previous case, the sentence imposed by the
court in no way sheds light as to the offense to which
defendant pled guilty or as to the grading of the offense.
Commonwealth's exhibit 3 relates to the case captioned
at 9415215 of the Allegheny County Clerk of Court's
records. The first two pages of Commonwealth's exhibit
3 contain the dispositional information for the case. Page
three through five of Commonwealth's exhibit 3 contain
the criminal informations filed in the case. Nowhere on
the first two pages which contain the dispositional
information does it indicate the grading of the robbery
charge to which defendant pled guilty. Commonwealth's
exhibit 3, unlike Commonwealth's exhibits I and 2, does
specifically refer to the count numbers of the criminal
information to which defendant pled guilty.
Commonwealth's exhibit 3 states in part, "The defendant
present in open court with counsel, pleads guilty to the
preferred charges Cts. #1 and #2 and nollo contendere to
Ct. #3 in the within information" (emphasis added). This
record explicitly stating the charges to which defendant
-7-
].A25013/00
pled guilty sheds light on the complete lack of information
contained in Commonwealth's exhibits i and 2 as to the
charges and grading of the charges to which defendant
pled guilty in those cases. The lines which should have
been filled in as they were in Commonwealth's exhibit 3
are completely blank in Commonwealth's exhibits I and
2.
Although the charges to which defendant pled guilty are
filled in in Commonwealth's exhibit 3, further court
proceedings in that case show that defendant's sentence
was subsequently vacated. On the second page of
Commonwealth's exhibit 3 of the dispositional
information, it states in part,
And now August 11, 1998, after hearing in open
court, defendant's Post Conviction Relief Act petition
is hereby granted, defendant's sentence imposed on
.luly 6, 1995, is hereby vacated and the following is
imposed:
And now August 11, 1998, a judgment of guilt
having been duly entered, the court sentences the
defendant to no further penalty.
County of Allegheny to pay costs.
Bythe Court
Cashman, ].
The vacating of the judgment of sentence from July 6,
1995, obviously acts to essentially erase defendant's
conviction. In the order dated August 11, 1998, the court
states that a judgment of guilt was duly entered.
However, there is no court entry as to the charges for
which a judgment of guilt was entered. Without such
information, it cannot be shown that defendant has a
prior conviction for a crime of violence for the case
captioned at 9415215.
Having carefully reviewed the arguments of appellant in the light of
the sentencing hearing transcript, we are compelled to find that these
-8-
]. A25013/00
arguments are without merit. The Commonwealth's exhibit I included the
criminal complaint at docket #91-12076 reflecting that appellant was
charged with robbery of two individuals, theft by unlawful taking, recklessly
endangering another person, and firearms not to be carried without a
license, in connection with a robbery at Foodland Market. Exhibit i also
included a copy of the Commonwealth's petition for partial nolle prosse
evidencing that the charges against appellant at docket #91-12076 for theft,
recklessly endangering another person, and the violation of Uniform
Firearms Act were nolle prossed. In addition, exhibit i contains the criminal
information setting forth the robbery charge, "Count 1, Robbery, Felony 1"
with a description of the actions of appellant "in violation of ... 18 Pa.C.S. §
3701(a)(1)(i) or (ii)," and "Count 2, Robbery, Felony 1," with a description
of the actions of appellant "in violation of ... 18 Pa.C.S. § 3701(a)(1)(i) or
(ii)." Finally, exhibit i includes the dispositional information for docket #91-
12076, which specifies "Count 1: Robbery (Section 3701), Count 2: Robbery
(Section 3701)", and states that at count 1 appellant was sentenced to a
term of imprisonment of from 2 years to 5 years, and at count 2 to "no
further penalty."
Appellant would have us find this proof insufficient because one
sentence on the dispositional information sheet is left blank, namely, "The
defendant present in open court with counsel, pleads guilty to the preferred
charges in the within information." (emphasis added)
-9-
J. A25013/00
Appellant also argues that the sentence imposed could be consistent with a
third degree felony. We find these arguments to be baseless in light of the
attached criminal information, specifically referenced by the dispositional
page, which identifies two counts of robbery, both first degree felonies
pursuant to 18 Pa.C.S. § 3701(a)(1)(i) or (ii).
Appellant challenges the Commonwealth's exhibit 2 on the same basis
that he challenged Commonwealth's exhibit :[, namely, that the first page of
disposition information for docket #91-12070 does not indicate the charge
or grading of the offense to which he pleaded guilty. However, as the
dispositional information specifically referenced the attached criminal
information, which identifies the charge at docket #91-12070 as "Count 1,
Robbery, Felony 1" and includes a description of the actions of appellant "in
violation of ... 18 Pa.C.S. § 3701(a)(1)(i) or (ii)", we likewise reject this
claim.
Finally, appellant challenges the dispositional information for docket
#94-15215 contained in Commonwealth's exhibit 3. The dispositional
information sheet (:L) specifies "Counts 1-2: Robbery (Section 3701), Count
3: Criminal Conspiracy (Section 903)", (2) reflects that appellant pleaded
guilty on July 6, 1995, to count I and count 2 and nollo contendere to count
3, (3) sets forth appellant's sentence, imposed on July 6, 1995, to serve a
term of imprisonment of from two years to four years, and (4) contains an
order dated August 11, 1998, which states: ["Appellant's] post-conviction
10-
J. A25013/00
relief act petition is hereby granted. [Appellant's] sentence imposed on
July 6, :[995, is hereby vacated and the following is imposed: And now
August :[1, 1998, a judgment of guilt having been duly entered, the court
sentences the defendant to no further penalty." Appellant argues that
contrary to what is stated in the order of August 11, 1998 there is no court
entry as to the charges for which a judgment of guilt was entered, and,
therefore, it' cannot be shown that appellant has a prior conviction for a
crime of violence at docket #94-15215. We disagree. It is clear that the
order of August 11, 1998 is based upon appellant's plea entered July 6,
1995. :in any event, the Commonwealth has proved two prior convictions for
crimes of violence at docket #9:[-12070 and docket #9:[-:[2076 as required
by Section 9714(a)(2), ("two or more such crimes of violence arising from
separate criminal transactions").
Having found the contentions of appellant to be without merit, we thus
affirm the judgment of sentence imposed by the distinguished Judge Edgar
B. Bayley.
Judgment of sentence affirmed.
AUG - ? 2OIJU
Date:
-11-