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HomeMy WebLinkAboutCP-21-CR-0000739-2014 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : DANIEL ALFREDO : CP-21-CR-0739-2014 NEGRON-ROSARIO : IN RE: POST-SENTENCE MOTION TO MODIFY SENTENCE ORDER and OPINION Defendant Daniel Negron-Rosario files this Post-Sentence Motion to Modify Sentence following his conviction for Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705, two counts of Aggravated Assault, 18 Pa.C.S.A. § 2702, Assault of a Law Enforcement Officer, 18 Pa.C.S.A. § 2702.1(A), and Criminal Attempt to Commit Criminal Homicide, 18 Pa.C.S.A. § 2502. Defendant was sentenced to an aggregate term of confinement of twenty (20) to forty (40) years. At issue before this Court is Defendant’s allegation that the Court erred in sentencing Defendant to the mandatory minimum pursuant to 42 Pa.C.S.A. § 9719.1 for his violation of 18 Pa.C.S.A. 2702.1(A), Assault of a Law Enforcement Officer. Defendant contends the Commonwealth failed to provide Defendant with written notice that the mandatory minimum would be imposed prior to sentencing. The Commonwealth argues that no notice is required or, in the alternative, the informal verbal notice during plea negotiations was sufficient. (N.T. at 6). The Defendant relies on Commonwealth v. Rizzo, 523 A.2d 809 (Pa. Super. Ct. 1987), in support of his contention that the Commonwealth is required to provide notice prior to the imposition of a mandatory minimum sentence. (N.T. at 4). The defendant in Commonwealth v. Rizzo was convicted of Aggravated Assault. Rizzo, 523 A.2d 810. At sentencing the Commonwealth attempted to impose the mandatory minimum pursuant to 42 Pa.C.S.A. § 9717, Sentences for Offenses Against Elderly Persons, without having provided notice to the defendant. Id. The trial court refused to impose the minimum sentence due to the fact that the age of the victim was not alleged in the information. In addition, the trial court reasoned that because the Commonwealth had not provided Rizzo with reasonable notice, Rizzo was unable to adequately prepare a defense to the Commonwealth’s assertion that the victim was over the age of 60. Id. However, the Superior Court noted that the age of the victim was not an element of aggravated assault and therefore did not need to be alleged in the information. Rizzo, 523 A.2d 811. Instead, the Rizzo court based its decision on Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985), which held that the defendant’s visible possession of a firearm during the commission of the offense, though not an element of the underlying crime to be proven at trial, could be established at sentencing. The Rizzo court went on to hold, however, that notice by the Commonwealth one day prior to sentencing was not reasonable. Id. Therefore the imposition of the mandatory sentence was improper. Recently, the premise underlying Wright, and therefore Rizzo, was held unconstitutional in Alleyne v. U.S., 570 U.S. __ (2013), and a series of cases as it has been applied to Pennsylvania law. See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014); Commonwealth v. Bizzel, 107 A.3d 102, 111-12 (Pa. Super. Ct. 2014). Sentencing enhancement factors must now be found beyond a reasonable doubt at trial, not by the preponderance of the evidence at sentencing. Newman, 99 A.3d 86. Presumably, the enhancement factors become elements which must now be established before a jury. 2 In this case, unlike the statutes at issue in Rizzo, supra, and Wright, supra, the elements necessary for the imposition of a mandatory minimum sentence are the same as the elements of the crime for which Defendant was convicted. The statutes in Rizzo and Wright required a court to determine the age of the victim or whether the defendant visibly possessed a firearm at sentencing. Here, enforcing 42 Pa.C.S.A. § 9719.1 imposes no greater burden of proof or finding of fact than finding the defendant guilty under 18 Pa.C.S.A. § 2702.1(A). That offense is made out where a person … attempts to cause or intentionally or knowingly causes bodily injury to a law enforcement officer, while in the performance of duty and with knowledge that the victim is a law enforcement officer, by discharging a firearm. 42 Pa. C.S.A. § 9719.1 provides the mandatory term of imprisonment for a violation of 18 Pa.C.S.A.§ 2702.1(A) without adding any other elements to be proven at the time of sentencing. Moreover, this section does not provide that any notice need be given by the Commonwealth. ORDER th AND NOW, this 16 day of April, 2015, upon consideration of Defendant’s Post- Sentence Motion to Modify Sentence, and after hearing, it is hereby ORDERED that the DENIED Defendant’s Post-Sentence Motion to Modify Sentence is . BY THE COURT: __________________________ Kevin A. Hess, P.J. 3 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : DANIEL ALFREDO : CP-21-CR-0739-2014 NEGRON-ROSARIO : IN RE: POST-SENTENCE MOTION TO MODIFY SENTENCE ORDER th AND NOW, this 16 day of April, 2015, upon consideration of Defendant’s Post- Sentence Motion to Modify Sentence, and after hearing, it is hereby ORDERED that the DENIED Defendant’s Post-Sentence Motion to Modify Sentence is . BY THE COURT: __________________________ Kevin A. Hess, P.J. Matthew P. Smith, Esquire Chief Deputy District Attorney Sean M. Owen, Esquire Assistant Public Defender :rlm