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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AARON WALTER ROBINSON :
:
Appellant : No. 2 MDA 2020
Appeal from the Judgment of Sentence Entered April 18, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001681-2012
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 24, 2020
Aaron Walter Robinson (Appellant) appeals from the judgment of
sentence imposed following resentencing that occurred pursuant to our
decision in Appellant’s prior appeal. See Commonwealth v. Robinson, 852
MDA 2017 (Pa. Super. Jan. 24, 2018) (unpublished memorandum). Appellant
challenges the legality of his sentence following remand. We affirm.
We previously summarized:
This case arose out of multiple armed robberies and
kidnappings of Leroy Freeman in December of 2011 by Appellant
and a co-defendant. The Commonwealth charged Appellant with
three counts of robbery, two counts of kidnapping to facilitate a
felony, criminal conspiracy, theft by extortion, and unlawful
restraint/risking serious injury.[1] Appellant absconded, but the
United States Marshal’s Fugitive Task Force eventually
apprehended him on February 2, 2012, in Richmond, Virginia.
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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2901(a)(2), 903(a)(1), 3923(a)(1), and
2902(a)(1).
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Following a three-day trial, a jury convicted Appellant of the
foregoing offenses on January 18, 2013. Prior to sentencing, the
Commonwealth filed two notices of its intent to seek mandatory
minimum sentences: a minimum of ten years of incarceration
because Appellant had a prior conviction for a crime of violence in
1993, and a minimum of five years of incarceration pursuant to
42 Pa.C.S. § 9712(a) because Appellant committed the instant
offenses with a firearm.
The trial court sentenced Appellant on April 2, 2013, to
incarceration for an aggregate term of thirty-six to seventy-two
years. Appellant filed post-sentence motions, which the trial court
denied on July 9, 2013. We affirmed Appellant’s judgment of
sentence, and the Pennsylvania Supreme Court denied allowance
of appeal. Commonwealth v. Robinson, 104 A.3d 60, 1281
MDA 2013 (Pa. Super. Filed May 27, 2014) (unpublished
memorandum), appeal denied, 104 A.3d 525, 446 MAL 2014 (Pa.
filed December 10, 2014).
Appellant filed a timely pro se [Post Conviction Relief Act]
PCRA petition, challenging the effectiveness of trial and appellate
counsel and the imposition of mandatory minimum sentences.
Petition, 7/24/15, at ¶ 6. The PCRA court appointed counsel and
granted leave to file an amended petition. Following two
extensions for review of Appellant’s collateral claims, PCRA
counsel concluded that Appellant’s petition did not present any
issues of arguable merit. Consequently, counsel filed a no-merit
letter pursuant to [Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988)] and a petition to withdraw on March 2, 2016. . . .
The PCRA court [] dismissed Appellant’s petition and granted
counsel leave to withdraw. Order, 5/3/17.
Robinson, 852 MDA 2017 at *1-3 (footnotes omitted and footnote added).
Appellant appealed, and on January 24, 2018, we affirmed the PCRA
court’s denial of collateral relief; however, we vacated Appellant’s judgment
of sentence and remanded for resentencing. We determined that the
mandatory sentence Appellant received pursuant to 42 Pa.C.S.A. § 9712 was
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illegal given the United States Supreme Court’s holding in Alleyne v. United
States, 570 U.S. 99 (2013). See also Robinson, 852 MDA 2017 at *8
(“Thus, applying Alleyne, we agree with Appellant that the mandatory
minimum sentence imposed under 42 Pa.C.S. § 9712 is illegal.”).
On April 18, 2019, the trial court resentenced Appellant to an aggregate
sentence of 34 to 68 years of incarceration. Appellant filed this timely appeal.2
Both Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Appellant states his single issue as follows:
This Court remanded [Appellant’s] case for [resentencing]. The
Commonwealth had previously sought, and the [trial] court
imposed several second-strike mandatory sentences. The
Commonwealth did not file a new notice of its intent to seek the
second-strike mandatory sentence before resentencing. Was the
[trial] court’s sentence illegal?
Appellant’s Brief at 4 (trial court’s answer omitted).
Appellant claims his sentence is illegal because the Commonwealth
failed to provide him with reasonable notice that it intended to seek a
mandatory minimum sentence as required by 42 Pa.C.S.A. § 9714(d). See
Appellant’s Brief at 7-9.
____________________________________________
2 On April 24, 2019, Appellant filed a timely notice of appeal from the April 18,
2019 judgment of sentence. However, Appellant’s counsel failed to file a brief
and we dismissed Appellant’s appeal on August 28, 2019. See
Commonwealth v. Robinson, 684 MDA 2019 (per curiam order). On
October 3, 2019, Appellant filed a timely pro se PCRA petition with the trial
court alleging ineffective assistance of counsel. The trial court granted
Appellant’s PCRA petition on December 17, 2019 and reinstated his appellate
rights nunc pro tunc. Appellant filed the instant notice of appeal nunc pro tunc
on December 26, 2019.
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The application of a mandatory sentencing provision implicates the
legality of sentencing. Commonwealth v. Dixon, 53 A.3d 839, 842 (Pa.
Super. 2012) (citation omitted). Therefore, “our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Horning, 193 A.3d
411, 414 (Pa. Super. 2018).
Section 9714 of the Sentencing Code provides in relevant 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 or other statute
to the contrary. . . .
(d) Proof at sentencing.-- . . . [R]easonable notice of the
Commonwealth’s intention to proceed under this section shall be
provided after conviction and before sentencing. . . .
42 Pa.C.S.A. § 9714(a), (d).
While Appellant admits that he “knew that the Commonwealth was
seeking the second-strike mandatory at his original sentencing,” he avers that
the “law regarding resentencing requires the Commonwealth to provide a new
notice of its intent to seek a second-strike mandatory sentence” prior to
resentencing. Appellant’s Brief at 8-9. In response, the Commonwealth
argues that it:
. . . properly complied with 42 Pa.C.S. §[]9714 when it provided
[Appellant] with notice of the applicability of the mandatory
minimum sentence on three separate occasions prior to
sentencing. As a result of the Commonwealth’s numerous notices,
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[Appellant] and his counsel readily acknowledged the applicability
of the mandatory minimum sentence at the time of his
resentencing hearing on April 18, 2019. Finally, the plain
language of 42 Pa.C.S. § 9714 does not distinguish between
sentencing and resentencing in the context of notice. Instead, it
only requires the Commonwealth to provide notice after conviction
and before sentencing.
Commonwealth Brief at 7 (emphasis in original).
The trial court responded emphatically, explaining:
Appellant seeks to argue that the court illegally imposed a
second-strike mandatory sentence pursuant to 42 Pa.C.S.A. §
9714 because the Commonwealth failed to provide notice of the
applicability of that provision. Appellant’s argument is frivolous.
Pursuant to section 9714(a), 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 mandatory minimum sentence of at least ten years of total
confinement. . . .” 42 Pa.C.S.A. § 9714(a)(1). Because of the
provisions of this section are, by statute, not elements of any
particular offense, the Commonwealth is not obligated to provide
a defendant with notice of its intent to pursue the second-strike
mandatory sentence before trial. Id. [at] § 9714(d). However,
“reasonable notice of the Commonwealth’s intention to proceed
under [§ 9714(a)(1)] shall be provided after conviction and before
sentencing.” Id. (emphasis added).
The record in this case clearly establishes that, after
Appellant’s conviction on January 18, 2013, the Commonwealth
notified him, in writing, of its intent to seek a mandatory minimum
sentence of ten years’ incarceration as a result of Appellant’s
conviction for a “crime of violence” in 1993. See Notice of Intent
to Seek Mandatory Sentencing at ¶ 5. Moreover, the Sentencing
Guidelines Worksheet also notified Appellant that he faced a
mandatory minimum term of ten years’ incarceration as a second-
strike offender pursuant to 42 Pa.C.S.A. § 9714(a)(2). Finally,
the Pre-Sentencing Investigation Report, filed on February 7,
2013, stated that Appellant faced the mandatory term of ten
years’ incarceration for a second strike. See Pre-Sentence
Investigation Report at 2. Thus, the record confirms that the
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Commonwealth provided Appellant with notice of the applicability
of the mandatory minimum sentence on three separate occasions
prior to his sentencing. Accordingly this claim lacks merit.
Trial Court Opinion, 1/28/20, at 8-9 (footnotes omitted, emphasis in original).
Upon review, we agree that Appellant’s argument lacks merit. The
record indicates that Appellant received proper notice of the Commonwealth’s
intent to pursue a mandatory minimum sentence under Section 9714(a). The
jury rendered its convictions on January 18, 2013. On April 2, 2013, the
Commonwealth filed with the trial court and served Appellant’s counsel with a
copy of its notice of intent to seek mandatory sentencing.3 See Notice of
Intent to Seek Mandatory Sentencing, 4/2/13, at 1-3 (unnumbered). The
Commonwealth notice provided:
1. On January 18, 2013, [Appellant], was convicted following a jury
trial of [three counts of robbery; criminal conspiracy; two counts
of kidnapping; theft by extortion; and unlawful restraint].
2. Each of the above-referenced offenses occurred on or between
December 11 to December 18, 2011.
3. Each of the above-referenced offenses (excluding the Theft by
Extortion and Unlawful Restraint) constitute “crimes of violence”
as defined by 42 Pa.C.S.A. § 9714(g).
4. [Appellant] has a prior conviction for a “crime of violence”;
specifically, on November 4, 1993, [Appellant] was convicted of
Aggravated Assault (F1) before this Honorable Court. (See
attached copies of Certified Records and statutes).
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3 At the April 2, 2013 sentencing hearing, Appellant’s counsel expressly stated
that “the defense received a copy of the notice of intent to seek mandatory
sentencing this morning. I reviewed it before coming in here this morning.”
N.T., 4/2/13, at 3.
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5. Pursuant to 42 Pa.C.S.A. § 9714, the Commonwealth hereby gives
formal notice to [Appellant] that it intends to seek a sentence of
at least the mandatory minimum of ten (10) years incarceration
for each of the above-referenced offenses. . . .
Id. at 1-2 (unnumbered).
The trial court originally sentenced Appellant on April 2, 2013. After this
Court vacated the sentence and remanded, the trial court resentenced
Appellant on April 18, 2019. We agree with the trial court’s determination
that Appellant was afforded ample and appropriate notice of the
Commonwealth’s intent to seek a mandatory minimum second-strike sentence
at resentencing. Section 9714 does not contain any provision requiring
renewed notice if a defendant is to be resentenced. See 42 Pa.C.S.A. § 9714.
Nor does Appellant cite any case law or other authority to support his
contention that where he previously received notice of the Commonwealth’s
intent, the Commonwealth must “provide a new notice of its intent to seek a
second-strike mandatory sentence.” Appellant’s Brief at 7-9. The record
reveals that the Commonwealth satisfied the mandate of Section 9714(d) by
providing Appellant with notice of its intent to seek a mandatory minimum
sentence following Appellant’s convictions, but before resentencing.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2020
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