Com. v. Harvard, J.

J-A05011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN HARVARD :
:
Appellant : No. 1492 WDA 2017

Appeal from the PCRA Order October 12, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007041-2010,
CP-02-CR-0013557-2008, CP-02-CR-0013729-2008,
CP-02-CR-0013730-2008, CP-02-CR-0014215-2008,
CP-02-CR-0014687-2008

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED FEBRUARY 28, 2019

Appellant, John Harvard, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant

counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows. On

September 13, 2010, a jury convicted Appellant of multiple counts of robbery

and related offenses, in connection with a string of armed robberies that took

place in the summer of 2008. The court also convicted Appellant of two counts

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
J-A05011-19

of persons not to possess firearms. The court sentenced Appellant on

December 8, 2010, to an aggregate term of 65 to 280 years’ imprisonment.

Two of Appellant’s robbery convictions included mandatory minimum

sentences under 42 Pa.C.S.A. § 9714(a)(2) (providing for mandatory

minimum 25-year sentence for defendant convicted of crime of violence, if at

time of commission of current offense, defendant had previously been

convicted of two or more crimes of violence). This Court affirmed the

judgment of sentence on March 25, 2013, and our Supreme Court denied

allowance of appeal on October 10, 2013. See Commonwealth v. Harvard,

64 A.3d 690 (Pa.Super. 2013), appeal denied, 621 Pa. 687, 77 A.3d 636

(2013).

On October 9, 2014, Appellant timely filed a pro se PCRA petition

challenging imposition of the mandatory minimum sentences under Alleyne

v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

(holding any fact increasing mandatory minimum sentence for crime is

considered element of crime to be submitted to fact-finder and found beyond

reasonable doubt). The court appointed counsel, who filed an amended PCRA

petition on March 13, 2017. On September 12, 2017, the court issued notice

of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907.

Appellant did not respond. The court denied PCRA relief on October 12, 2017.

On October 16, 2017, Appellant timely filed a notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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J-A05011-19

Preliminarily, appellate counsel has filed a motion to withdraw as

counsel and an accompanying brief pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw

from representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file a “no-merit” brief or letter pursuant to Turner and Finley.

Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or with

privately retained counsel. Id. “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel filed a motion to withdraw as counsel and a

Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issues lack merit. Counsel’s brief also demonstrates he

reviewed the certified record and found no meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

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J-A05011-19

Counsel raises the following issues on Appellant’s behalf:

WHETHER [APPELLANT’S] SENTENCE IS ILLEGAL—IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND/OR ARTICLE
I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION—
WHERE THE FACTS TRIGGERING APPLICATION OF THE
MANDATORY MINIMUM SENTENCE UNDER 42 PA.C.S. §
9714 WERE FOUND BY THE COURT, RATHER THAN A JURY,
AND FOUND BY A PREPONDERANCE OF THE EVIDENCE,
RATHER THAN BEYOND A REASONABLE DOUBT?

WHETHER [APPELLANT’S] SENTENCE IS ILLEGAL—IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND/OR ARTICLE
I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION—
WHERE THE FACTS AUTHORIZING INCREASE OF THE
MAXIMUM SENTENCE BEYOND THE STATUTORY MAXIMUM
OF 20 YEARS WERE, [THROUGH] APPLICATION OF 42
PA.C.S. § 9714, FOUND BY THE COURT, RATHER THAN A
JURY, AND FOUND BY A PREPONDERANCE OF THE
EVIDENCE, RATHER THAN BEYOND A REASONABLE DOUBT?

(Turner/Finley Brief at 2).2

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Harold F. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa.

779, 959 A.2d 319 (2008). This Court grants great deference to the findings

of the PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

____________________________________________

2 Appellant has not responded to the Turner/Finley brief pro se or with newly
retained private counsel.

-4-
J-A05011-19

593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to

the court’s legal conclusions. Commonwealth v. Junius Maurice Ford, 44

A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable David R.

Cashman, we conclude Appellant’s issues merit no relief. The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. (See PCRA Court Opinion, filed October 23, 2018, at 5-14)

(finding: relevant legal precedent has already rejected Appellant’s claims; fact

of prior conviction is not element of crime requiring proof beyond reasonable

doubt; Alleyne decision made clear that fact of prior conviction constituted

exception to Alleyne Court’s holding; mandatory minimum sentences for

recidivists in these circumstances are not illegal under Alleyne). Accordingly,

we affirm based on the PCRA court’s opinion. Following an independent review

of the record, we grant counsel’s petition to withdraw.

Order affirmed; counsel’s petition to withdraw is granted.

-5-
J-A05011-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2019

-6-
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IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY

COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
CCNos.200813557;200814215
vs. 200813729;200814687;
200813730;201007041
JOHN HARVARD Superior Court No. 1492WDA2017

OPINION

JUDGE DAVID R. CASHMAN
308 Courthouse
436 Grant Street
Pittsburgh, PA 15219
(412) 350-3905

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 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
vs. ) CC No. 200813557; 200814215
) 200813729 200814687
) 200813730 201007041
JOHN HARVARD, DK2326 )

OPINION

The appellant, John Harvard, (hereinafter referred to as "Harvard"), has filed the

instant appeal as a result of the denial of his petition for post-conviction relief on the

basis that the legal issues that he attempted to raise had no merit. In August of 2008,

Harvard was charged at five separate complaints with the crimes of burglary, robbery,

criminal conspiracy, receiving stolen property, person not to possess a firearm, carrying

a firearm without a license, terroristic threats, and recklessly endangering another

person. In 2010, Harvard was charged with risking a catastrophe and possession of an

offensive weapon. The Commonwealth moved to .consolidate all of these cases for the

purpose of trial, which motion was granted. Harvard requested a Jury trial on all of the

charges filed against him but also requested that the charges of person not to possess a

firearm be severed from all of the other charges, which motion was granted.

Harvard proceeded with a jury trial on all of the charges but the Person not to

Possess a Firearm on September 7, 2010. Following the conclusion of the

Commonwealth's case, this Court granted Harvard's motion for judgment of acquittal

with respect to the charges of carrying a firearm without a license. On September 13,

2010, the jury convicted Harvard of all of the remaining charges and this Court found

him guilty of the charges of person not to possess a firearm. A presentence report was

2
ordered and on December 8, 2010, Harvard was sentenced to an aggregate sentence of

not less than sixty-five nor more than two hundred eighty years. Harvard filed timely

post-sentence motions which were denied by this Court on March 22, 2011. Harvard

filed a timely appeal to the Superior Court and on March 25, 2013, the Superior Court

affirmed the judgment of sentence imposed upon Harvard. Harvard then filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which denied

that petition on October 10, 2013. Harvard did not file a petition for writ of certiorari

with the United States Supreme Court and, accordingly, his judgment of sentence

became final ninety days from the date of the Pennsylvania Supreme Court's denial of

his petition for allocator, which meant that his judgment of sentence became final on

January 9, 2014.

Harvard filed a petition for post-conviction relief on October 14, 2014, and on

March 16, 2015, this Court appointed counsel for him to represent him in connection

with this petition. On November 9, 2016, Harvard's appointed counsel sought to

withdraw and this Court granted that motion and appointed his current appellate

counsel in connection with his petition. On March 13, 2017, his second counsel filed an

amended petition alleging that his sentences were illegal.

The facts of Harvard's cases are immaterial to the disposition of the claims he has

raised in his petition for post-conviction relief since they are illegal sentence claims and

do not implicate any of the factual issues involved in any of the proceedings. For the

purpose of this record, the facts are set forth in this Court's original Opinion in

connection with Harvard's direct appeal are incorporated herewith. In Harvard's

petition for post-conviction relief he maintains that his sentences are illegal in that there

were facts triggering the application of a mandatory minimum sentence that were

found by the Court rather than by the jury and found by the preponderance of the

3
evidence rather than beyond a reasonable doubt. The second claim of the illegality of

his sentence is in essence a repeat of the first claim, the difference being that the alleged

illegality is based upon the statute increasing the maximum sentence beyond the

statutory maximum of twenty years. Again, Harvard maintains that the sentence was

illegal since it was found by the Court by the preponderance of the evidence and not by

the jury beyond a reasonable doubt.

The time for filing a petition for post-conviction relief is set forth in 42 Pa.C.S.A.

9545(b), which provides as follows:

(b) Time for filing petition. -

(1) Any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final, unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim in violation of the
Constitution orlaws of this Commonwealth or the Constitution or laws of the
United States;

(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence; or

(iii) the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania
after the time period provided in this section and has been held by that court
to apply retroactively.

(2) Any petition invoking an exception provided in paragraph (1) shall be filed
within 60 days of the date the claim could have been presented.

(3) For purposes of this subchapter, a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.

4
 (4) For purposes of this subchapter, "government officials" shall not include
defense counsel, whether appointed or retained.

These time limitations are jurisdictional in nature and cannot be waived by the Court in

an attempt to resolve the underlying claim. Commonwealth v. Fahy, 558 Pa. 313, 737

A.2d 214 (1999). In viewing Harvard's petition for post-conviction relief in light of these

time limitations, it is clear that his petition was timely filed since his judgment of

sentence became final on January 9, 2014, and his petition was filed within that one-year

period on October 14, 2014.

Harvard's two claims of error are predicated upon the use of 42 Pa.CS.A. §9714,

which provides as follows:

(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 or 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).

(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.

5
Harvard maintains that the use of this sentencing statute violates the decision of the

United States Supreme Court in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151,

186 L.ed.2d 314 (2013). That Court made the determination that any fact that constitutes

an an element or ingredient of the charge had to be determined by a jury using the

standard of beyond a reasonable doubt.

The touchstone for determining whether a fact must be found by a jury
beyond a reasonable doubt is whether the fact constitutes an "element" or
"ingredient" of the charged offense. United States v. O'Brien, 560 U.S. 218, -
-, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010); Apprendi, supra, at 483, n. 10,
120 S.Ct. 2348; J. Archbold, Pleading and Evidence in Criminal Cases 52 (5th
Am. ed. 1846) (hereinafter Archbold). In Apprendi, we held that a fact is by
definition an element of the offense and must be submitted to the jury if it
increases the punishment above what is otherwise legally prescribed. 530
U.S., at 483, n. 10, 120 S.Ct. 2348. While Harris declined to extend this
principle to facts increasing mandatory minimum sentences, Apprendi 's
definition of "elements" necessarily includes not only facts that increase the
ceiling, but also those that increase the floor. Both kinds of facts alter the
prescribed range of sentences to which a defendant is exposed and do so in a
manner that aggravates the punishment. 530 U.S., at 483, n. 10, 120 S.Ct.
2348; Harris, supra, at 579, 122 S.Ct. 2406 (THOMAS, J., dissenting). Facts
that increase the mandatory minimum sentence are therefore elements and
must be submitted to the jury and found beyond a reasonable doubt.

Alleyne v. United States, supra., 570 at 107-108.

The decision in Alleyne, supra. acknowledged that it did not overrule its prior decision

in the case of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct.1219, 140

L.Ed.2d 350 (1998). That case held that a legislature can define recidivism as a

sentencing factor instead of an element of a crime without violating due process or

other constitutional limitations. In a footnote in the Alleyne Opinion it acknowledged

that the decision of Almendarez-Torres was a narrow exception .

. . . we recognized a narrow exception to this general rule for the fact of a prior
conviction. Because the parties do not contest that decision's
I
vitality, we do

6
 not revisit it for purposes of our decision today.

In Almendarez-Torres, supra, the Court was faced with the question as to

whether or not the question of recidivism was an element of the crime or a

sentencing factor.

We turn then to the case upon which petitioner must primarily rely,
McMillan v. Pennsylvania. The Court there considered a Pennsylvania
statute that set forth a sentencing factor-"visibly possessing a firearm"-the
presence of which required the judge to impose a minimum prison term of
five years. The Court held that the Constitution did not require the State to
treat the factor as an element of the crime. In so holding, the Court said that
the State's "link[ing] the 'severity of punishment' to 'the presence or absence
of an identified fact'" did not automatically make of that fact an "element."
Id., at 84, 106 S.Ct., at 2415 (quoting Patterson v. New York, supra, at 214, 97
S.Ct., at 2329). It said, citing Patterson, that "the state legislature's definition
of the elements of the offense is usually dispositive." 477 U.S., at 85, 106
S.Ct., at 2415. It said that it would not "define precisely the constitutional
limits" of a legislature's power to define the elements of an offense. Id., at 86,
106 S.Ct., at 2416. And it held that, whatever those limits might be, the State
had not exceeded them. Ibid. Petitioner must therefore concede that "firearm
possession" (in respect to a mandatory minimum sentence) does not violate
those limits. And he must argue that, nonetheless, "recidivism" (in respect to
an authorized maximum) does violate those limits.
In assessing petitioner's claim, we have examined McMillan to determine the
various features of the case upon which the Court's conclusion arguably
turned. The McMillan Court pointed out: (1) that the statute plainly "does
not transgress the limits expressly set out in Patterson," ibid; (2) that the
defendant (unlike Mullaney 's defendant) did not face" 'a differential in
sentencing ranging from a nominal fine to a mandatory life sentence,'" 477
U.S., at 87, 106 S.Ct., at 2417 (quoting Mullaney, 421 U.S., at 700, 95 S.Ct.,
at 1890); (3) that the statute did not "alte[r] the maximum penalty for the
crime" but "operates solely to limit the sentencing court's discretion in
selecting a penalty within the range already available to it," 477 U.S., at 87-
88, 106 S.Ct., at 2417; (4) that the statute did not "creat[e] a separate offense
calling for a separate penalty," id., at 88, 106 S.Ct., at 2417; and (5) that the
statute gave "no impression of having been tailored to permit the visible
possession finding to be a tail which wags the dog of the substantive offense,"
but, to the contrary, "simply took one factor that has always been considered
by sentencing courts to bear on punishment ... and dictated the precise

7
weight to be given that factor," id., at 88, 89-90, 106 S.Ct., at 2417, 2418.
This case resembles McMillan in respect to most of these factors. But it is
different in respect to the third factor, for it does "alte[r] the maximum
penalty for the crime," id., at 87, 106 S.Ct., at 2417; and it also creates a
wider range of appropriate punishments than did the statute in McMillan.
We nonetheless conclude that these differences do not change the
constitutional outcome for several basic reasons.
First, the sentencing factor at issue here-recidivism-is a traditional, if not
the most traditional, basis for a sentencing court's increasing an offender's
sentence. See, e.g., Parke v. Raley, 506 U.S. 20, 26, 113 S.Ct. 517, 521-522,
121 L.Ed.2d 391 (1992) (Recidivism laws "have a long tradition in this
country that dates back to colonial times" and currently are in effect in all 50
States); U.S. Dept. of Justice, Office of Justice Programs, Statutes Requiring
the Use of Criminal History Record Information 17-41 (June 1991) (50-state
survey); USSG §§ 4Al.1, 4Al.2 (Nov. 1997) (requiring sentencing court to
consider defendant's prior record in every case). Consistent with this
tradition, the Court said long ago that a State need not allege a defendant's
prior conviction in the indictment or information that alleges the elements of
an underlying crime, even though the conviction was "necessary to bring the
case within the statute." Graham v. West Virginia, 224 U.S. 616, 624, 32
S.Ct. 583, 585-86, 56 L.Ed. 917 (1912). That conclusion followed, the Court
said, from "the distinct nature of the issue," and the fact that recidivism "does
not relate to the commission of the offense, but goes to the punishment only,
and therefore ... may be subsequently decided." Id., at 629, 32 S.Ct., at 588
(emphasis added). The Court has not deviated from this view. See Oyler v.
Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503-504, 7 L.Ed.2d 446 (1962) (due
process does not require advance notice that trial for substantive offense will
be followed by accusation that the defendant is a habitual offender); Parke,
supra, at 27, 113 S.Ct., at 522 ("[A] charge under a recidivism statute does
not state a separate offense, but goes to punishment only''). And, as we said
before, supra, at 1224, Congress, reflecting this tradition, has never, to our
knowledge, made a defendant's recidivism an element of an offense where the
conduct proscribed is otherwise unlawful. See United States v. Jackson, 824
F.2d 21, 25, and n. 6 (C.A.D.C.1987) (opinion of R. Ginsburg, J.) (referring to
fact that few, if any, federal statutes make "prior criminal convictions ...
elements of another criminal offense to be proved before the jury'). Although
these precedents do not foreclose petitioner's claim (because, for example, the
state statute at issue in Graham and Oyler provided for a jury determination
of disputed prior convictions), to hold that the Constitution requires that
recidivism be deemed an "element" of petitioner's offense would mark an
abrupt departure from a longstanding tradition of treating recidivism as
"go[ing] to the punishment only." Graham, supra, at 629, 32 S.Ct., at 587-
588.

8
Second, the major difference between this case and McMillan consists of the
circumstance that the sentencing factor at issue here (the prior conviction)
triggers an increase in the maximum permissive sentence, while the
sentencing factor at issue in McMillan triggered a mandatory minimum
sentence. Yet that difference-between a permissive maximum and a
mandatory minimum-does not systematically, or normally, work to the
disadvantage of a criminal defendant. To the contrary, a statutory minimum
binds a sentencing judge; a statutory maximum does not. A mandatory
minimum can, as Justice STEVENS dissenting in McMillan pointed out,
"mandate a minimum sentence of imprisonment more than twice as severe as
the maximum the trial judge would otherwise have imposed." 477 U.S., at 95,
106 S.Ct., at 2421. It can eliminate a sentencing judge's discretion in its
entirety. See, e.g., 18 U.S.C. § 2241(c) (authorizing maximum term oflife
imprisonment for sexual abuse of children; mandating life imprisonment for
second offense). And it can produce unfairly disproportionate impacts on
certain kinds of offenders. See United States Sentencing Commission,
Mandatory Minimum Penalties in the Federal Criminal Justice System 26-
34 (Aug. 1991) (discussing "tariff' and "cliff' effects of mandatory minimums).
In sum, the risk of unfairness to a particular defendant is no less, and may
well be greater, when a mandatory minimum sentence, rather than a
permissive maximum sentence, is at issue.
Although McMillan pointed to a difference between mandatory minimums
and higher authorized maximums, it neither "rested its judgment" on that
difference, nor "rejected" the above analysis, as the dissent contends, post, at
1236. Rather, McMillan said that the petitioners' argument in that case
would have had "more superficial appeal" if the sentencing fact "exposed
them to greater or additional punishment." 477 U.S., at 88, 106 S.Ct., at 2417
(emphasis added). For the reasons just given, and in light of the particular
sentencing factor at issue in this case-recidivism-we should take
McMillan's statement to mean no more than it said, and therefore not to
make a determinative difference here.
Third, the statute's broad permissive sentencing range does not itself create
significantly greater unfairness. Judges (and parole boards) have typically
exercised their discretion within broad statutory ranges. See, e.g., supra, at
1225, 1227 (statutory examples); National Institute of Justice, Sentencing
Reform in the United States (Aug. 1985) (survey of sentencing laws in the 50
States); L. Friedman, Crime and Punishment in American History 159-163
(1993) history of indeterminate sentencing). And the Sentencing Guidelines
have recently sought to channel that discretion using "sentencing factors"
which no one here claims that the Constitution thereby makes "elements" of a
crime.
Finally, the remaining McMillan factors support the conclusion that

9
 Congress has the constitutional power to treat the feature before us-prior
conviction of an aggravated felony-as a sentencing factor for this particular
offense (illegal entry after deportation). The relevant statutory provisions do
not change a pre-existing definition of a well-established crime, nor is there
any more reason here, than in McMillan, to think Congress intended to
"evade" the Constitution, either by "presuming" guilt or "restructuring" the
elements of an offense. Cf. McMillan, supra, at 86-87, 89-90, 106 S.Ct., at
2416-2417,2417-2418.
For these reasons, we cannot find in McMillan (a case holding that the
Constitution permits a legislature to require a longer sentence for gun
possession) significant support for the proposition that the Constitution
forbids a legislature to authorize a longer sentence for recidivism.

Almandarez-Torres v. United States, supra; 523 U.S. at 242-246.

In Commonwealth v. Reid, 117 A.3d 777, 784-786 (Pa. Super. 2015), the

Pennsylvania Superior Court was confronted with the same claim that Alleyne

required that to increase a mandatory minimum sentence that the. facts had to be

submitted to a jury and proven beyond a reasonable doubt. In rejecting that claim,

the Court made the following observation.

In Alleyne, the Supreme Court of the United States held that the Sixth
Amendment requires that any fact=-other than a prior conviction-that
increases a mandatory minimum sentence for an offense must be submitted
to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did
not overturn prior precedent that prior convictions are sentencing factors and
not elements of offenses. Alleyne, 133 S.Ct. at 2160 n. 1; see also
Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219,
1230-31, 140 L.Ed.2d 350 (1998).
Section 9714 increases mandatory minimum sentences based on prior
convictions. See 42 Pa.C.S. § 9714(a)(l). Accordingly, this section is not
unconstitutional under Alleyne. See Alleyne, supra; see also Commonwealth v.
Akbar, 91 A.3d 227, 239 n. 9 (Pa.Super.2014), appeal granted and order
vacated on other grounds, -Pa.--, 111 A.3d 168 (2015).
Here, at his guilty plea hearing, Appellant acknowledged that his cases
involved "mandatory sentences [that would] be imposed by the [trial c]ourt

10
[.]" N.T. 3/21/2011, p. 8. At sentencing, the court characterized the instant
matter as a "second strike case{,]" without objection from Appellant.13 See
N.T. 1/16/2014, pp. 4-6. The trial court then imposed a section 9714
mandatory minimum sentence on the attempted murder conviction. This
sentence was legal.
14 Appellant also challenges the application of the 20-year mandatory
minimum sentence imposed on his conviction for assault of a law enforcement
officer in the first degree. Regarding sentences for offenses committed against
law enforcement officers, the Sentencing Code provides, in relevant part:
(a) Mandatory sentence.-A person convicted of the following
offense shall be sentenced to a mandatory term of imprisonment as
follows:
18 Pa.C.S. § 2702.l(a) (relating to assault of law enforcement officer)
-not less than 20 years.
42 Pa.C.S. § 9719.1.

This mandatory sentence provision does not implicate Alleyne. Section 9719.1
does not require proof of any additional elements beyond those already
required to convict a defendant of assault of a law enforcement officer in the
first degree under 18 Pa.C.S. § 2702.l(a). Nor does section 9719.1 follow the
statutory scheme that allowed a trial court to apply a mandatory minimum
sentence if the Commonwealth established the triggering fact for the
mandatory minimum by a preponderance of the evidence, which this Court
found unconstitutional under Alleyne. See, i.e., 18 Pa.C.S. § 6317(b) (relating
to sentencing for drug crimes committed in school zones), 18 Pa.C.S. § 7508(b)
(relating to sentencing for drug trafficking); 42 Pa.C.S. § 9712(b) (relating to
sentences for offenses committed with firearms), 42 Pa.C.S. § 9712.l(c)
(relating to sentences for certain drug offenses committed with firearms), 42
Pa.C.S. § 9713(c) (relating to sentences for offenses committed on public
transportation), and 42 Pa.C.S. § 9718(c) (relating to sentences for offenses
against infant persons). Instead, section 9719.1 simply describes the
legislatively-required sentence for an offender convicted of assaulting a law
enforcement officer pursuant to section 2702. l(a). Because it does not require
proof of facts that increase a mandatory minimum sentence, and does not
follow the statutory construction that allowed trial courts to find such facts
by a preponderance of the evidence at sentencing, section 9719.1 is not
unconstitutional under Alleyne or its Pennsylvania progeny.

In Commonwealth v. Furness, 153 A.9d 397, 406 (Pa. Super. 2016), the

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Superior Court was confronted with the same question as in the case of the Reid

supra., and dismissed that challenge of the illegality of his sentence on the basis

that imposition of the mandatory sentence was a proper legislative concern and was

not an element of the crime.

In his final claim, Furness argues that the mandatory minimum sentence
imposed for his attempted burglary conviction, pursuant to 42 Pa.C.S.A. §
9714, is illegal, and he raises two sub-issues in support of his argument.4
Brief for Appellant at 31. First, citing the United States Supreme Court's
decision in Alleyne v. United States, - U.S.--, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013),5 Furness claims that his sentence is illegal because the
jury did not find beyond a reasonable doubt all facts necessary to require
imposition of a mandatory minimum sentence. Id. at 32-34. Furness argues
that the fact triggering the imposition of a mandatory minimum sentence,
i.e., a prior conviction for a crime of violence, had not been found by the jury
beyond a reasonable doubt. Id. at 35. Additionally, Furness noted that in the
Alleyne decision, United States Supreme Court "declined to address whether
the fact triggering a mandatory minimum sentence is to be considered an
element of the crime (and thus submitted to the jury and proven beyond a
reasonable doubt with prior notice to a defendant) if that fact is a prior
conviction." Id.; see also Alleyne, 133 S.Ct. at 2151 n.1. Second, Furness
argues that even if Section 9714 is constitutional under the Alleyne holding,
there is a "good faith argument for change in existing law based upon the
reasoning and rule set forth in Alleyne and the shaky underpinnings of
Almendarez-Torres v. United States[, 523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998)6 [." Brief for Appellant at 36-37. Furness contends that
Almendarez-Torres cannot alone support the constitutionality of Section
9714 because the Almendarez-Torres decision relied on prior decisions that
either do not support the holding, or have subsequently been overruled. Id. at
38-39.
Section 9714 of the Sentencing Code provides, in relevant part, as follows:
§ 9714. Sentences for second and subsequent offenses
(a) Mandatory sentence.-
(I) Any person who is convicted in any court of this Commonwealth of a crime
of violencel'Zl 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 or other statute to the contrary. Upon a

12
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 ....

***
(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 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 ....
42 Pa.C.S.A. § 9714(a), (d) (footnote and emphasis added).
Furness's claim challenges the legality of his sentence. Commonwealth v.
Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014). "Issues relating to the legality
of a sentence are questions of law. Our standard of review over such
questions is de novo and our scope of review is plenary." Commonwealth v.
Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014) (citations, brackets and ellipses
omitted).
Initially, in Alleyne, the United States Supreme Court recognized the narrow
exception set forth in Almendarez-Torres, regarding the fact of a prior
conviction. Alleyne, 133 S.Ct. at 2151 n.l (declining to revisit the issue, as it
had not been raised by the parties). Because the United States Supreme
Court did not overturn the Almendarez-Torres exception, the Alleyne rule
includes the prior conviction exception. See id.; see also Almendarez-
Torres, 523 U.S. at 243-44, 118 S.Ct. 1219.
This Court specifically considered the constitutionality of Section 9714 in
Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015). In Reid, this
Court acknow ledged that the Alleyne decision retained the exception for
prior convictions. Reid, 117 A.3d at 784. The Reid Court held that Section
9714 is not unconstitutional because it increases mandatory minimum
sentences based on prior convictions. Reid, 117 A.3d at 785.8

It is clear that the claims of illegality of Harvard's sentence have previously

13
••

been litigated and resolved against him. Based upon the holdings in Almendarez-

Torres v. United States, supra.; Commonwealth v. Reid, supra. and

Commonwealth v. Furness, supra., it is abundantly clear that the facts that

Harvard sought to be elements of the crimes for which he was convicted were

sentencing factors and not elements of the crimes. Based upon this decision, it was

clear that there was no merit to the claims asserted by Harvard as to the illegality

of the sentence and, accordingly, his petition for post-conviction relief was denied

without a hearing.

BY THE COURT:

a�-- ,A·�.J.

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