J-S29010-19
2019 PA Super 275
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RASHAN LEMAR DEJARNETTE,
Appellant No. 3211 EDA 2018
Appeal from the Judgment of Sentence Entered July 31, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005645-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 06, 2019
Appellant, Rashan Lemar Dejarnette, appeals from the judgment of
sentence of an aggregate term of 5 to 10 years’ incarceration, followed by 4
years’ probation, imposed after he was convicted of several offenses under 18
Pa.C.S. § 6111 (sale or transfer of firearms). Appellant raises two challenges
to the legality of the court’s imposition of mandatory-minimum sentences
under section 6111(h). After careful review, we affirm.
We need not reproduce the trial court’s detailed recitation of the facts
of Appellant’s case for purposes of this appeal. See Trial Court Opinion (TCO),
1/25/19, at 1-9. We only briefly note that the evidence presented at
Appellant’s trial demonstrated that he went to a gun show with several
companions and made “straw purchases” of two firearms for an individual who
is not legally permitted to possess a gun. For these acts, Appellant was
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convicted, following a jury trial on June 13, 2018, of two counts each of the
following offenses: making materially false written statements, 18 Pa.C.S. §
6111(g)(4)(ii); firearm ownership — duty of other persons, 18 Pa.C.S. §
6111(c); tampering with public records, 18 Pa.C.S. § 4911(a)(1); and false
reports to law enforcement, 18 Pa.C.S. § 4906(b)(1). The jury also found
Appellant guilty of six counts of criminal conspiracy, 18 Pa.C.S. § 903.
On July 31, 2018, the court conducted Appellant’s sentencing hearing,
at the close of which it imposed three mandatory-minimum, five-year terms
of incarceration pursuant to 18 Pa.C.S. § 6111(h) for Appellant’s two counts
of making materially false written statements, and one count of firearm
ownership — duty of other persons. The court also sentenced Appellant to an
aggregate, consecutive term of four years’ probation for his remaining
convictions. Appellant filed a timely post-sentence motion, which the court
denied after a hearing. He then filed a timely notice of appeal, and he also
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court filed its Rule 1925(a)
opinion on January 25, 2019.
Herein, Appellant presents two issues for our review:
I) Whether the mandatory sentences imposed pursuant to 18
Pa.C.S. § 6111(h) for counts seventeen, eighteen, and twenty are
illegal since there is insufficient evidence of record to conclude the
[C]ommonwealth provided Appellant with reasonable notice, prior
to trial, of its intent to pursue these enlarged penalties?
II) Whether the mandatory second-degree felony sentences
imposed pursuant to 18 Pa.C.S. § 6111(h) for counts seventeen,
eighteen, and twenty are illegal since the [C]ommonwealth failed
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to charge this provision, indicate its increased grading, or specify
its triggering facts in the information?
Appellant’s Brief at 6 (emphasis omitted).
Both of Appellant’s issues challenge the legality of the five-year,
mandatory-minimum sentences imposed by the trial court pursuant to 18
Pa.C.S. § 6111(h). That provision states:
(h) Subsequent violation penalty.--
(1) A second or subsequent violation of this section shall be a
felony of the second degree. A person who at the time of
sentencing has been convicted of another offense under this
section shall be sentenced to a mandatory minimum sentence of
imprisonment of five years. A second or subsequent offense shall
also result in permanent revocation of any license to sell, import
or manufacture a firearm.
(2) Notice of the applicability of this subsection to the defendant
and reasonable notice of the Commonwealth’s intention to
proceed under this section shall be provided prior to trial. The
applicability of this section shall be determined at sentencing. The
court shall consider evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to present
necessary additional evidence and shall determine by a
preponderance of the evidence if this section is applicable.
(3) There shall be no authority for a court to impose on a
defendant to which this subsection is applicable a lesser sentence
than provided for in paragraph (1), to place the defendant on
probation or to suspend sentence. Nothing in this section shall
prevent the sentencing court from imposing a sentence greater
than that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing shall
not supersede the mandatory sentences provided in this section.
(4) If a sentencing court refuses to apply this subsection where
applicable, the Commonwealth shall have the right to appellate
review of the action of the sentencing court. The appellate court
shall vacate the sentence and remand the case to the sentencing
court for imposition of a sentence in accordance with this section
if it finds that the sentence was imposed in violation of this
subsection.
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(5) For the purposes of this subsection, a person shall be deemed
to have been convicted of another offense under this section
whether or not judgment of sentence has been imposed for that
violation.
18 Pa.C.S. § 6111(h).
In Appellant’s first issue, he contends that the Commonwealth failed to
provide reasonable notice of its intent to seek application of section
6111(h)(1)’s mandatory-minimum sentence. We disagree. As the trial court
observes, the Commonwealth twice notified Appellant of this fact, in writing,
prior to trial. First, on February 23, 2018, the Commonwealth provided, to
both the court and defense counsel, a pretrial statement in which it declared
its intent to seek five-year mandatory minimum sentences pursuant to 18
Pa.C.S. § 6111(h)(1). See TCO at 21-22; see also Commonwealth’s
Response to Defendant’s Post Sentence and Supplement Post Sentence
Motions (hereinafter “Commonwealth’s Response”), 9/5/18, at Appendix A,
pg. 2 ¶E (the Commonwealth’s Pretrial Statement declaring: “The
Commonwealth is seeking to impose the five (5) year minimum mandatory
sentence pursuant to 18 [Pa.C.S.] § 6111[](h)(1)[.]”). Second, “the
Commonwealth authored a letter to counsel for Appellant on June 12, 2018,
which stated the applicable mandatory[-] minimum….” TCO at 22; see also
Commonwealth’s Response at Appendix B.1
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1 Appellant argues that we should not consider the Commonwealth’s pretrial
statement, or its June 12, 2018 letter to defense counsel, as they “were never
docketed prior to trial….” Appellant’s Brief at 16. However, nothing in section
6111(h)(2) requires the Commonwealth to file notice of its intent to seek the
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Additionally, as the court observes, just prior to the start of trial, the
Commonwealth stated on the record its intent to seek the mandatory-
minimum sentence, and it also noted that it had provided defense counsel
with the letter informing Appellant of this fact. See TCO at 22; N.T. Trial,
6/12/18, at 6 (the prosecutor’s stating: “I just want the record to reflect that
this is [a] mando [sic] case [and] I did indicate that on my pretrial statement.
I have said it numerous times, [defense counsel] is aware. I just gave him a
letter for the record indicating that this is a mando [sic] case and we do seek
to pursue to the mando [sic] if he is convicted of multiple counts. And I have
given the [c]ourt a copy [of] that letter.”) TCO at 22 (quoting N.T. Trial,
6/12/18, at 6 (emphasis added)). Based on this record, we conclude that the
Commonwealth provided reasonable, pre-trial notice of its intent to seek the
mandatory-minimum sentences under section 6111(h)(1). Thus, Appellant’s
first issue is meritless.
Next, Appellant contends that his mandatory-minimum sentences are
illegal because the Commonwealth failed to refer to section 6111(h)(1), or
indicate the increased grading of his offenses required by that provision, in
the criminal information. Appellant insists that “courts may not impose
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mandatory-minimum sentence. Rather, the statute requires only that the
Commonwealth provide to the defendant reasonable notice of this fact. When
Appellant challenged the adequacy of the Commonwealth’s notice in his post-sentence motion, the Commonwealth attached to its response the notification
documents that it had provided to Appellant prior to trial. We discern nothing
improper about the trial court’s, or this Court’s, considering those record
documents in assessing the reasonableness and adequacy of the
Commonwealth’s notice.
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enlarged penalties if the charging document fails to specify which facts support
the increased range of potential sentences.” Appellant’s Brief at 18 (citations
omitted). He complains that here, “the charging document … did not specify
which facts supported enlarged sentencing[,]” and the information “did not
reference [s]ection 6111(h), or explain which of the counts charged could
expose [Appellant] to its five-year mandatory minimum and felony-two
grading.” Id. at 20.
In support of his argument, Appellant relies on several cases, including
Commonwealth v. Moses, 271 A.2d 339 (Pa. 1970), Commonwealth v.
Longo, 410 A.d 368 (Pa. Super. 1979), Commonwealth v. Campbell,
417
A.2d 712 (Pa. Super. 1980), and Commonwealth v. Gibson,
668 A.2d 552
(Pa. Super. 1995). In each of these cases, we reversed the trial court’s
imposition of enhanced sentences based on prior convictions that were known
to the Commonwealth before it filed the criminal information. Here, however,
Appellant did not have prior convictions that triggered the enhanced
sentencing provisions of section 6111(h)(1) until he was convicted of the
crimes alleged in this criminal information. As the Commonwealth explains:
In this case, the criminal informations clearly charged
[A]ppellant with multiple offenses under 18 Pa.C.S. [§] 6111[;]
however, prior to trial, [A]ppellant had not yet been convicted of
any offenses under that section. Therefore, there were no dates
of prior convictions to set forth in a criminal information. Also,
until [A]ppellant was found guilty of multiple offenses under
[section] 6111, there was nothing for the trial court or [A]ppellant
to be put on notice of in terms of an actual prior offense which
might trigger the mandatory minimum sentencing provisions of
[section] 6111(h).
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Commonwealth’s Brief at 24. We agree with the Commonwealth that the
circumstances of this case make it distinguishable from those on which
Appellant relies.
Moreover, as the Commonwealth observes, “[t]he purpose of a criminal
information is to provide a defendant with timely notice of the facts and the
charges against him and to provide him with the time and opportunity to
prepare a defense.” Commonwealth’s Brief at 25 (citations omitted); see
Commonwealth v. Bickerstaff, 204 A.3d 988, 995 (Pa. Super. 2019)
(“[Informations] must be read in a common sense manner and are not to be
construed in an overly technical sense. The purpose of the [information] is to
provide the accused with sufficient notice to prepare a defense, and to
[ensure] that he will not be tried twice for the same act.”) (citation omitted).
In this case, the fact invoking the application of section 6111(h)(1) — i.e.,
Appellant’s prior conviction for a crime under that section — was not an
element that was required to be submitted to the fact-finder and proven
beyond a reasonable doubt. See Commonwealth v. Miller,
102 A.3d 988,
995 n.5 (Pa. Super. 2014) (noting that the holding of Alleyne v. United
States,
570 U.S. 99, 106 (2013), that “facts that increase mandatory
minimum sentences must be submitted to the jury” and found beyond a
reasonable doubt does not apply to a prior conviction). Additionally, as
discussed above, the Commonwealth could not have alleged the applicability
of section 6111(h)(1) in the criminal information, as that provision did not
apply until Appellant was convicted of the crimes charged in this case. The
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Commonwealth did, however, provide reasonable notice to Appellant of its
intent to invoke that mandatory-minimum sentence, were he to be convicted
of multiple section 6111 offenses. Thus, although the criminal information did
not reference the applicability of section 6111(h), we discern no illegality in
the court’s imposing Appellant’s mandatory-minimum sentences under that
provision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/19
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