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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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