J-S44031-22
2023 PA Super 20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFRED C. CARRERA II :
:
Appellant : No. 694 MDA 2022
Appeal from the PCRA Order Entered April 6, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000132-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: FEBRUARY 8, 2023
Alfred C. Carrera II (Carrera) appeals from the order of the Court of
Common Pleas of Dauphin County (PCRA court) denying his first petition filed
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
He argues that the court erred in denying his petition because his sentence
was illegal where it was based on Pennsylvania’s Three Strikes Law.1 We
affirm and grant counsel’s motion for leave to withdraw.
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* Retired Senior Judge assigned to the Superior Court.
1 Section 9714 of the Sentencing Code, Sentences for Second and Subsequent
Offenses, provides, in pertinent part:
…
(2) Where the person had at the time of the commission of
the current offense previously been convicted of two or more such
(Footnote Continued Next Page)
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We take the relevant factual background and procedural history from
the PCRA court’s April 4, 2018 memorandum opinion and our independent
review of the record.
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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. …
…
(d) Proof at 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. …
…
(g) Definition.—As used in this section, the term “crime of
violence” means … aggravated indecent assault … robbery … or
robbery of a motor vehicle ….
42 Pa.C.S. § 9714(a)(2), (d), (g) (emphasis in original).
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I.
On November 17, 2016, the Middletown Police Department charged
Carrera with one count each of robbery of a motor vehicle, 18 Pa.C.S.
§ 3702(a), and terroristic threats, 18 Pa.C.S. § 2706(a)(1).2 The charges
stemmed from a November 13, 2016 incident at the Hardee’s in Middletown.
That night, Doris Louey was driving a 2006 Dodge Durango when she stopped
to get food at the restaurant. Ms. Louey was sitting with her keys and wallet
on the table in front of her. Carrera and his ex-fiancé, Lisa Dawn Smith
(Smith), were at the table behind Ms. Louey. Carrera rushed over, grabbed
the keys and wallet and he and Smith ran out of the Hardees and got into Ms.
Louey’s car, with Carrera in the driver’s seat and Smith in the passenger’s
seat.
Ms. Louey ran after them and grabbed the passenger side door, telling
the couple they could not take her car. Carrera yelled at Ms. Louey to get
away or he would shoot her. Ms. Louey did not see a gun but saw Carrera
motioning toward his side as if reaching for one. He and Smith then sped
away.
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2 A charge of theft by unlawful taking, 18 Pa.C.S. § 3921(a), was later
withdrawn.
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Police recovered the damaged Dodge Durango, which Ms. Louey was
able to identify. She also identified Carrera and Smith in a photo array from
her recollection of what had happened.
At trial, Carrera testified that he and Smith were high on crack on the
day of the incident and, before Ms. Louey came into the Hardees, were joking
about needing a car. When they saw Ms. Louey, Carrera decided to take her
vehicle. He admitted that he “did everything [he was] accused of except for
threaten her. That’s the only thing I didn’t do. Everything else I did.” (N.T.
Trial, 12/04/17, at 145).
On December 5, 2017, a jury convicted Carrera with one count each of
robbery of a motor vehicle and terroristic threats.3 In his January 16, 2018
sentencing memorandum, Carrera maintained that the Commonwealth
informed him prior to trial that the robbery conviction was his third strike.
Carrera argued that the robbery conviction should not be considered a third
strike because: (1) his 1996 aggravated indecent assault conviction was not
included in the Three Strikes legislation until 2000; (2) the Commonwealth
waived the personal injury elements from a 2014 robbery conviction; and (3)
Carrera was not given notice of his first or second strike and was not
sentenced to a second strike.
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3 Smith pleaded guilty to charges related to the incident.
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On January 31, 2018, the court sentenced Carrera to not less than 25
nor more than 50 years’ incarceration on the robbery conviction as a third-
time offender pursuant to the Three Strikes Law, and five years’ probation on
the terroristic threat’s conviction. Carrera filed a direct appeal challenging the
sufficiency and weight of the evidence and the legality of his sentence due to
the court’s application of the Three Strikes Law, raising the same arguments
as he did in his sentencing memorandum. (See Commonwealth v. Carrera,
2018 WL 4844711, unreported memorandum, at *4-*7 (Pa. Super. filed Oct.
5, 2018)). This Court affirmed,4 and the Pennsylvania Supreme Court denied
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4 In pertinent part, this Court found:
The imposition of a mandatory minimum sentence pursuant
to Section 9714, which counts a conviction that occurred before
the enactment of the statute as a strike, is not an unlawful
retroactive application of law. Commonwealth v. Ford, 947
A.2d 1251 (Pa. Super. 2008) (citing Commonwealth v. Smith,
866 A.2d 1138 (Pa. Super. 2005)). Therefore, [Carrera]’s 1996
aggravated-indecent-assault conviction was correctly counted as
a strike pursuant to Section 9714, and [Carrera]’s argument to
the contrary is meritless.
…
In 2014, [Carrera] pleaded guilty to and was convicted of
committing robbery under 18 Pa.C.S. § 3701(a)(1)(ii), an offense
enumerated as a strike under 42 Pa.C.S. § 9714(g). Nothing in
the record reveals that the Commonwealth waived an element of
the 2014 robbery making it a nonviolent crime; rather, the
Commonwealth waived the crime-of-violence prohibition for
sentencing purposes and [Carrera]’s ineligibility for State
Intermediate Punishment. Accordingly, we conclude that
(Footnote Continued Next Page)
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further review on April 17, 2019. (See id. appeal denied, 206 A.3d 1030 (Pa.
2019)).
Carrera filed a timely5 pro se PCRA petition on March 23, 2020, raising
eight claims of trial counsel ineffectiveness, including, in pertinent part,
counsel’s failure to argue in his direct appeal that Pennsylvania’s Three Strikes
Law violated his Constitutional rights pursuant to Apprendi v. New Jersey,
530 U.S. 466 (2000), which held that, with the exception of a prior conviction,
“any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi,
530 U.S. at 491. Appointed counsel filed an
amended petition on January 5, 2021.
The amended petition addressed all the pro se ineffectiveness claims,
declining to advance most of them further because they lacked merit. (See
Supplemental Petition Pursuant to the PCRA, 1/05/21, at ¶¶ 57-96). It raised
two issues. First, it argued that counsel was ineffective for failing to challenge
the weight of the evidence, thus waiving it for appellate review. (See id. at
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[Carrera]’s 2014 robbery conviction counted as a strike under
Section 9714.
(Carrera, 2018 WL 4844711, at *6).
5 There is no argument that Carrera’s petition was untimely because he filed
it within one year of the date his judgment became final. See 42 Pa.C.S.
§ 9545(b)(1), (3).
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¶¶ 41-56). Second, it conceded that trial counsel was not ineffective for failing
to argue Apprendi on appeal because settled Pennsylvania law was stated
that the Three Strikes Law was constitutional and Apprendi did not apply
where a defendant’s prior criminal history provided the basis for a sentence
higher than that ordinarily applicable. (See Supplemental Petition Pursuant
to the PCRA, 1/05/21, at ¶ 96); see also Apprendi, 530 U.S. at 491.
However, the amended petition argued that Carrera’s sentence is now
illegal because, since his sentencing, the federal district court decided Roselli
v. Smith, 2020 WL 6449267, unpublished memorandum, at *1 (E.D. Pa. filed
Nov. 2, 2020), which held that the imposition of a sentence under the Three
Strikes Law does implicate Apprendi, comparing it to the federal court’s
consideration of the Armed Career Criminal Act (ACCA), and, therefore, it was
for the jury to determine, beyond a reasonable doubt, whether his prior
convictions were crimes of violence. (See Supplemental Petition, at ¶¶ 97-
99); see also Roselli,
2020 WL 6449267, at *4-5. Carrera requested the
court vacate his illegal sentence and hold a new sentencing hearing without
application of the Three Strikes Law. (See Supplemental Petition, at ¶ 100).
On December 29, 2021, the PCRA court issued Rule 907 notice of its
intent to dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1).
The court explained, in pertinent part, that Roselli is a non-binding district
court case and that, “therefore, this court stands by its evaluation of the third
strike issue as presented in [Carrera]’s direct appeal and found meritless by
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both this court and the Pennsylvania Superior Court.” (Memorandum Opinion,
12/19/21, at 6) (unnecessary capitalization omitted). Carrera did not respond
to the Rule 907 notice, and the court formally dismissed the petition on April
6, 2022. Carrera timely appealed6 and complied with the PCRA court’s order
that he file a statement of errors complained of on appeal. See Pa.R.A.P.
1925(b).
Carrera raises one issue for our review: “Whether the [PCRA] court
erred by denying [his] resentencing based upon the unconstitutionality of
Pennsylvania’s Three Strikes Law?” (Carrera’s Brief, at 4).7
II.
Carrera argues that the court erred in denying his PCRA petition because
the Pennsylvania Three Strikes Law is unconstitutional as applied to him, and
because he challenged “the legal and factual basis for [its] imposition,” 8 the
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6 In reviewing the denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s factual determinations and
whether its decision is free of legal error. See Commonwealth v. Lopez,
249 A.3d 993, 998 (Pa. 2021). “The determination as to whether the trial
court imposed an illegal sentence is a question of law; our standard of review
in cases dealing with questions of law is plenary.” Commonwealth v.
Atanasio,
997 A.2d 1181, 1183 (Pa. Super. 2010).
7 To be eligible for PCRA relief, an appellant must prove by a preponderance
of the evidence: “That the conviction or sentence resulted from one or more
of the following: … the imposition of a sentence greater than the lawful
maximum.” 42 Pa.C.S. § 9543(a)(2)(vii).
8We disagree with Carrera’s statement that his challenge is one of fact.
Whether a 1996 conviction for aggravated indecent assault is properly
(Footnote Continued Next Page)
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jury should have made the determination about whether his predicate offenses
were “crimes of violence” to which it applied. (See id. at 10, 12-17). In
support of his claim, he relies on Roselli, an unpublished federal district court
decision.9 (See id.).
To understand Roselli’s federal habeas corpus case on which Carrera
relies, we provide the following limited background.
A.
In his direct appeal to this Court, Roselli argued that the Three Strikes
Law violates Alleyne v. United States, 570 U.S. 99 (2013),10 and is
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included as a predicate offense under the Three Strikes statute where it was
not included in the legislation until 2000 is a question of law; as is whether
Carrera’s 2014 robbery conviction was a strike under the statute where the
Commonwealth waived the crime of violence prohibition for sentencing
purposes only. See Commonwealth v. Andrews,
173 A.3d 1219, 1221 (Pa.
Super. 2017) (interpretation of statute “implicates a question of law.”).
9 We agree with the Commonwealth and the PCRA court that Carrera’s claim
fails because Roselli, a trial level federal district court decision, is not binding
on this Court. (See Commonwealth’s Brief, at 11); (PCRA Ct. Op., 12/29/21,
at 6); see also NASDAQ OMX PHLX, Inc. v. PennMont Sec.,
52 A.3d 296,
303 (Pa. Super. 2012) (“federal court decisions do not control the
determinations of the Superior Court. Our law clearly states that, absent a
United States Supreme Court pronouncement, the decisions of federal courts
are not binding on Pennsylvania state courts[.]”). Carrera is unable to identify
any state cases, binding or otherwise, which have applied Roselli.
10 Alleyne held that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Alleyne, 99 U.S. at 103. “The
Alleyne decision ... renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior convictions
constitutionally infirm insofar as they permit a judge to automatically increase
a defendant’s sentence based on a preponderance of the evidence standard.”
(Footnote Continued Next Page)
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unconstitutional (facially and as-applied) because it “permits an automatic
increase of a defendant’s sentence beyond the statutory maximum, without
notice and without a jury finding beyond a reasonable doubt for its
application.” Commonwealth v. Roselli, 2015 WL 7722264, unpublished
memorandum, at *2 (Pa. Super. filed Jan. 13, 2015). He argued that his
predicate burglary offenses were only qualifying offenses under the Three
Strikes Law if the intruder enters a building or structure while another person
is present and if the building or structure is adapted for overnight
accommodations. See 42 Pa.C.S. § 9714(g). However, we observed that
Alleyne was inapplicable because it did not overrule the narrow exception for
the fact of a prior conviction. After setting forth the language of Section 9714,
the Court found that the jury was not required to make this decision for
sentencing purposes. We explained:
[T]he [Three Strikes] law requires that the trial court must
make a determination, based upon evidence before it, whether
the defendant has previous convictions for crimes of violence as
defined by subsection (g). At sentencing in the present case, the
Commonwealth offered a certified copy of Roselli’s conviction of
first-degree felony burglary from 1989 in Delaware County and a
copy of the affidavit of probable cause associated with that
conviction. The Commonwealth similarly offered a certified copy
of Roselli’s 1998 first-degree felony burglary conviction from
Dauphin County as well as the affidavit of probable cause in that
matter. Roselli objected to the affidavits (which were the only
documents stating that another person was present in the home
at the time Roselli burglarized them) as hearsay. The trial court
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Commonwealth v. Valentine, 101 A.3d 801, 804 n.2 (Pa. Super. 2014)
(emphasis added).
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overruled Roselli’s objection upon its rationalization that it is not
bound by the rules of evidence in a sentencing proceeding, and
further that the documents presented by the Commonwealth were
“self-certifying, reliable documents.” We can see no error in that
determination.
Id. at *6 (record citations omitted). We concluded that Roselli’s facial
constitutional challenge failed because the Three Strikes statute’s directive
that the sentencing court and not the jury shall determine whether the
mandatory minimum is applicable and does not violate Alleyne or the
constitution. The Commonwealth established probable cause to support the
sentence by offering proof in the form of the convictions and the affidavits of
probable cause that showed he had been convicted for crimes of violence
enumerated in the statute. We also concluded that his as-applied challenge
lacked merit because a jury is not required to find a crime of violence, so its
failure to do so in his case was constitutional. See id. at *8. We affirmed the
trial court and the Pennsylvania Supreme Court denied further review.11
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11 Judge Strassburger concurred in the result, stating:
We are dealing with an issue of what the convictions involve, i.e.,
were the burglary convictions crimes of violence because the
buildings were occupied. Certainly an argument can be made that
this issue involves a factual question that requires a jury to decide
it beyond a reasonable doubt. Unfortunately for Roselli, that
argument has been repeatedly rejected by the courts. See U.S.
v. Blair, 734 F.3d 218, 227-28 (3rd Cir. 2013):
Blair’s arguments fail, however, because Almendarez–
Torres has not been narrowed and remains the law.
Alleyne, [560 U.S. at 111] n.1. Descamps and Alleyne do
(Footnote Continued Next Page)
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B.
Roselli then filed a federal writ of habeas corpus raising the same issues.
He argued that his predicate convictions for burglary were only qualifying
offenses under subsection (g) of the Three Strikes law only if the intruder
enters a building or structure while another person is present and if the
building or structure is adapted for overnight accommodations. He argued
that the application of § 9714 in his case is unconstitutional because the jury
did not make the finding that he has two prior convictions for crimes of
violence. Having rejected his claim that the jury was required to make this
finding, this issue fails.
The district court found that the federal “categorical approach” utilized
to determine when an out-of-state conviction may serve as a predicate offense
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nothing to restrict the established exception under
Almendarez–Torres that allows judges to consider prior
convictions. When the pertinent documents show, as they do
in this case, that the prior convictions are for separate crimes
against separate victims at separate times, Alleyne does not
somehow muddy the record and convert the separateness
issue into a jury question. Alleyne was written against the
backdrop of Almendarez–Torres and existing ACCA
jurisprudence. Had the Supreme Court meant to say that all
details related to prior convictions are beyond judicial notice,
it would have said so plainly, as that would have been a
marked departure from existing law.
Roselli, 2015 WL 7722264, at *9.
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for the ACCA, 18 U.S.C. § 924(e),12 should be applied to considerations of
whether a prior conviction was a “crime of violence” for Third Strike purposes.
Pursuant to this approach, “the underlying state’s statute’s elements must be
the same as or narrower than those of the generic offense. According to
Roselli, in conducting this analysis, the sentencing court must ignore the
particular facts of the case and focus solely on whether the elements of the
convicted crime sufficiently match the elements of the generic offense.
Roselli observed that there is only one circumstance in which a court
may depart from the categorical approach and, there, a court may consult
“the terms of the charging document, the terms of a plea agreement or
transcript of a colloquy between judge and defendant in which the factual
basis was confirmed by the defendant, or some comparable judicial record of
information.” Should any further evidence be required, it should be
considered by a jury. Because the sentencing court had to rely on material
that was extrinsic to the crime itself, i.e., whether the building was occupied,
to which the defendant did not confirm, the district court held that we erred
in not upholding the as-applied challenge.
Now back to this appeal.
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12 The ACCA requires imposition of a mandatory minimum 15-year term of
imprisonment for recidivists convicted of prohibited possession of a firearm
under 18 U.S.C. § 922(g), who have three prior state or federal convictions
for violent felonies or serious drug offenses.
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C.
At the outset, we note that Roselli is not binding on this Court. It
conflicts with our decisions that it is the sentencing court that makes the
decision whether a prior crime is a crime of violence for purposes of the
statute, and “the court may receive any relevant information for the purposes
of determining the proper penalty.” Commonwealth v. Maroney, 193 A.2d
640, 642 (Pa. Super. 1963).
[T]he Supreme Court explicitly exempted the existence of prior
convictions from the mandate of jury consideration when
sentencing enhancement is an issue. When considering the
propriety of a sentencing enhancement in the wake of Apprendi,
supra, this Court has determined that it is appropriate to employ
a multi-part analysis. Commonwealth v. Lowery, 784 A.2d
795, 799 (Pa. Super. 2001). First, we must ascertain whether the
enhanced sentence exceeded the statutory maximum for the
crime for which the defendant was convicted. If it did, the next
question is whether the enhanced sentence was based upon the
fact of a prior conviction. If it was, then the sentence is
constitutional. If it was not, then the sentence is unconstitutional.
Id. (citing United States v. Williams,
235 F.3d 858, 863 n. 4
(3d Cir.2000)).
Commonwealth v. Harris, 888 A.2d 862, 872 (Pa. Super. 2005).
Moreover, even if Roselli applied, the facts here are significantly
different in that no extrinsic evidence was needed to determine whether
Carrera committed three enumerated crimes that made the Third Strike
sentencing enhancement applicable. At sentencing, the Commonwealth
produced a sealed and certified file from the clerk of courts that evidenced
that Carrera pleaded guilty to aggravated indecent assault, 18 Pa.C.S.
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§ 3125(1),13 on February 6, 1996, and a sealed and certified docket that
reflected Carrera pled guilty to robbery, 18 Pa.C.S. § 3701(a)(1)(ii),14 on
August 29, 2014. (See N.T. Sentencing, 1/31/18, at 3-4). Both exhibits were
moved into the record as self-authenticating, and the convictions were for
enumerated crimes of violence under the Three Strikes legislation. (See id.
at 4); 42 Pa.C.S. § 9714(g). No extrinsic evidence such as an affidavit of
probable cause was used in determining whether any of the crimes were
qualifying crimes in applying the enhancement.
As this Court explained in his direct appeal, the sentencing court
properly found that his 1996 conviction for aggravated indecent assault was
a first strike despite it not being included in the Three Strikes Law until 2000,
and the Commonwealth did not waive the personal injury element of his 2014
robbery; therefore, it was a second strike. (See Carrera, 2018 WL 4844711,
at *6). Carrera’s reliance on Roselli is neither legally binding nor persuasive.
Moreover, even if Roselli was either, the application of the enhancement was
constitutional. Unlike in that case, Carrera’s sentencing as a third-strike
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13 18 Pa.C.S. § 3125(1) provides, in pertinent part, that “a person who
engages in penetration, however slight, of the genitals or anus of a
complainant with a part of the person’s body for any purpose other than good
faith medical, hygienic or law enforcement procedures commits aggravated
indecent assault if: (1) the person does so without the complainant’s
consent[.] …”
14 18 Pa.C.S. § 3701(a)(1)(ii)(1) provides that “A person is guilty of robbery
if, in the course of committing theft, he: … (ii) threatens another with or
intentionally puts him in fear of immediate serious bodily injury[.] …”.
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offender was based on his prior convictions, without the use of any extrinsic
evidence such as a probable cause affidavit, making the enhancement
constitutional even if Roselli was applicable.
Accordingly, because Carrera’s sentencing as a third-strike offender was
based on the fact of his prior convictions, which were offenses enumerated in
the Three Strikes Law, the enhancement was constitutional. See Harris, 888
A.2d at 872. For all these reasons, we affirm the order of the PCRA court
dismissing his petition. The motion for leave to withdraw of Amanda A. Batz,
Esq. is granted and the trial court is directed to appoint new counsel for any
further appellate proceedings.
Order affirmed. Motion for leave to withdraw is granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2023
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