Commonwealth v. Gonzales

BROSKY, Judge,

concurring and dissenting.

I am in agreement with my colleagues’ disposition on all issues save the last.

As his final issue, appellant maintains that the sentencing court erred in applying the mandatory recidivist sentencing provisions of 42 Pa.C.S.A. § 9715(a). This section requires the court to impose a term of life imprisonment upon one *576who has been convicted of murder in the third degree who has been previously convicted of murder or voluntary manslaughter at any time. Appellant concedes that he has a previous conviction for murder in the third degree. He contends, however, that the imposition of sentence under Section 9715(a) is improper in this case because he had not yet been convicted of the previous homicide when he committed the instant offense. Because the jurisprudence currently prevailing in this Commonwealth supports appellant's position, I would be inclined to vacate the judgment of sentence of life imprisonment imposed pursuant to Section 9715(a) and remand for resentencing. Section 9715(a) reads, in relevant part, as follows:

§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment.— ... [A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

Emphasis supplied. Appellant was previously convicted of murder in the third degree in July 1989. The instant offense was committed on December 2, 1988. Neither the trial court nor the Commonwealth has challenged the existence of the previous conviction or the fact that the instant offense was committed before conviction for the previous homicide had obtained.

In Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), this court was faced with a similar issue concerning the interpretation of the recidivist penalty provisions of 42 Pa.C.S.A. § 9714(b)(2). Section 9714 provides for the imposition of a mandatory minimum sentence of five years’ imprisonment for a person who has been convicted of, inter alia, third-degree murder who had been previously convicted of any one of a number of crimes of violence set *577forth in subsection (b)(1) of the statute. Section 9714(b) reads, in part, as follows:

(b) Prior convictions for crimes of violence.—For the purposes of subsection (a) [the penalty provision], an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
(1) [Sets forth the specific crimes of violence for which the offender must have been previously convicted in order to invoke the mandatory recidivist penalty provisions of subsection (a)]
(2) The previous conviction occurred within seven years of the date of the commission of the instant offense____ A previous conviction shall include any conviction, whether or not litigation is pending concerning that conviction.

Emphasis supplied. The Dickerson court held that for the purpose of invoking this recidivist penalty statute, the previous conviction referred to in subsections (b)(1) and (2) must have antedated the commission of the current offense within the seven-year prescribed period. Appellant relies upon this court’s decision in Commonwealth v. Dickerson, supra, to support his argument that the application of the mandatory recidivist penalty provision of Section 9715(a) to him was erroneous as he had not yet been convicted of the first homicide at the time when he committed the instant offense.

The trial court in the case at bar stated in its Opinion: “Section 9715 applied to ‘any person ... who has previously been convicted at any time of murder----’” At 17; emphasis supplied by the trial court. However, the court provided no reasoning or analysis for its conclusion that Section 9715 applied instantly except to note that its “language is clear and unambiguous, [sic] and by its plain meaning applies to this [appellant].” Id. Appellant theorizes in his Brief to this court that the trial court interpreted the emphasized portion of the above statute to mean that the order of occurrence of a previous conviction and a current offense is irrelevant. In other words, the court *578interpreted the words “at any time” to mean “in any order.” In this regard, appellant further argues that the trial court was without the benefit of our decision in Commonwealth v. Dickerson, supra, in making its determination that Section 9715 applied to him.

I do not believe that the trial court’s cognizance of the Dickerson case would have altered its decision. I agree with appellant that the court interpreted the “at any time” language of Section 9715(a) to mean “in any order” to contrast the open-ended time period in that statute with the seven-year previous conviction period set forth in Section 9714(b)(2). This seven-year time period, however, does not direct the order in which convictions must occur to invoke the recidivist penalty provisions of Section 9714(a). Rather, it merely formulates a time frame or a “look-back” period within which a prior conviction may be considered for the purpose of invoking the recidivist provisions of the statute. Cf Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987) (seven-year period for application of recidivist penalty provision of 75 Pa.C.S.A. § 3731(e) measured from date of prior conviction to date of commission of second offense; second offense must occur within seven-year period of previous conviction).

The “at any time” language appearing in Section 9715(a), on the other hand, does not call for an unstructured, seesaw approach in determining if a prior conviction exists for the purpose of invoking the recidivist provisions of the statute. The purpose of this language is not to permit a court to determine whether a prior conviction exists without regard to the order in which a prior conviction and the commission of a current offense occurred. Rather, it allows for an unlimited time frame or “look-back” period between commission of the instant offense and conviction for the prior offense for the purpose of determining the applicability of the recidivist penalty provision to a particular case. It does not do away with the requirement that the prior conviction predate the commission of the current *579offense. In essence, this language, without more, merely extends the “look back” period.

In conjunction with the phrase “at any time”, the statute refers to “previous convictions”, id., subsection (b), and to one “who has previously been convicted at any time”, id., subsection (a). Our supreme court has stated: “When the term ‘conviction’ is used in a statute, it means ‘the ascertainment of the guilt of the accused and judgment thereon by the court’ ”. Commonwealth v. Kimmel, 523 Pa. 107, 113, 565 A.2d 426, 428 (1989), citing Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565 (1915). Similarly, “ ‘[violating’ in the common usage of the term refers to the time when the offensive conduct takes place, and it should not be confused with the point where the judicial process judges a violator to be accountable and then administers its punishment in accordance with due process.” Id. Hence, it is apparent from the foregoing definitions that a previous conviction implicates a finding of guilt on the record. Therefore, I would agree with appellant that the mandatory recidivist penalty provisions of Section 9715(a) were improperly applied in this case. At the time of the commission of the instant offense, appellant had not yet earned the status of recidivist offender, for he had not yet met the threshold requirement of this distinction, i.e., a previous conviction for an earlier committed homicide.

This interpretation, moreover, is in accord with the jurisprudence currently prevailing in our appellate courts on the subject of recidivist penalties. See Commonwealth v. Kimmel, supra (recidivist penalty provisions of 75 Pa.C.S.A. 3731(e) which calls for mandatory enhanced sentence for one convicted of driving under the influence who has been previously convicted of violating Section 3731 requires that previous conviction antedate commission of current offense). Accord Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc); Commonwealth v. Ashton, — Pa.Super.-, 607 A.2d 1120 (1992) (en banc judgment order); Commonwealth v. Turner, — Pa.Super. -, 607 A.2d 1127 (1992) (en banc judgment order); Com*580monwealth v. Smith, — Pa.Super. -, 607 A.2d 1126 (1992) (en banc judgment order); Commonwealth v. Eck, 411 Pa.Super. 465, 601 A.2d 1261 (1992) (en banc); Commonwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992) (en banc); Commonwealth v. Kearns, supra. See also Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc) (previous conviction must antedate current offense for purpose of application of enhanced prior record score of Sentencing Guidelines).

I would vacate the judgment of sentence entered in this case and remand for resentencing.