March 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
KENNETH PRYSOCK, Appellant
Appeal from the PCRA Order April 16, 2012, Court of Common Pleas, Allegheny County, Criminal Division at No(s): CP-02-CR-0001401-2007, CP-02-CR-0003062-2006, CP-02-CR-0014464-2006, CP-02-CR-0015363-2006, CP-02-CR-0015557-2006, CP-02-CR-0015558-2006 and CP-02-CR-0015559-2006.
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*] , JJ.
Kenneth Prysock ("Prysock") appeals from the order of court dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. For the following reasons, we vacate the order and remand for further proceedings.
Following a jury trial in 2009, Prysock was convicted of robbery of a motor vehicle, robbery – serious bodily injury, criminal trespass, forgery, theft by deception, and receiving stolen property. The Commonwealth gave notice of its intent to seek the imposition of a mandatory minimum sentence of 25 years pursuant to 42 Pa.C.S.A. § 9714(a)(2) on the basis that Prysock's robbery conviction constituted a "third strike." Citing a 1991 conviction of burglary and a 1992 conviction of robbery, the trial court found that the mandatory minimum sentence applied and sentenced Prysock to 25 years to life imprisonment on the robbery conviction. It also imposed lesser sentences of imprisonment on the remaining convictions, the terms of which are not relevant to this appeal. This Court affirmed the judgment of sentence, and the Supreme Court of Pennsylvania denied Prysock's petition for allowance of appeal.
Prysock filed a timely pro se PCRA petition on October 8, 2011, alleging, inter alia, that he could not receive a "third strike" sentence under 42 Pa.C.S.A. § 9714(a)(2) because he has never been sentenced as a "second strike" offender. The PCRA court appointed counsel, who then filed a petition seeking permission to withdraw pursuant to Turner/Finley. The PCRA court issued notice of its intent to dismiss Prysock's petition without a hearing pursuant to Pa.R.Crim.P. 907. Prysock filed a response to this notice, but to no avail. The PCRA court dismissed his PCRA petition on April 16, 2012 and granted counsel's petition to withdraw. This timely pro se appeal follows.
We begin with our standard of review:
Our review of a PCRA court's grant or denial of relief is limited to examining whether the court's determination is supported by the evidence and whether it is free of legal error. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. The findings of a post-conviction court will not be disturbed unless they have no support in the record.
Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (internal citations omitted).
Prysock challenges the legality of his sentence claiming that the PCRA court erred in imposing a sentence for a "third strike" under § 9714(a)(2) because he never received a "second strike" sentence. Appellant's Brief at 7. The case he cites in support of his position holds that there must be a temporal spacing between the crimes categorized as prior strikes, as the defendant must have been afforded a chance to reform himself or herself before being subject to the harsh recidivist provisions of § 9714. See Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005). Indeed, as the Pennsylvania Supreme Court stated in that case,
As to the recidivist philosophy, this and other Pennsylvania appellate courts have repeatedly recognized that, '[t]he point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline, ' [Commonwealth v.] Dickerson, [533 Pa. 294, 298-99, ] 621 A.2d [990, ] 992 (emphasis added) (collecting cases). Particularly salient here is the implicit link between enhanced punishment and behavioral reform, and the notion that the former should correspondingly increase along with a defendant's foregone opportunities for the latter. Any other conception would ignore the rationale underlying the recidivist philosophy, i.e., that the most culpable defendant is 'one, who after being reproved, 'still hardeneth his neck.' Id. Just as the second-time offender enhancement under subsection (a)(1) is meant to punish a defendant more severely when that defendant has offended before and has been afforded an opportunity to reform, so too is the third-time offender enhancement under subsection (a)(2), which increases the minimum punishment to twenty-five years, obviously meant to punish a defendant more severely when he has already foregone two opportunities to reform himself. The generally recognized purpose of such graduated sentencing laws is to punish offenses more severely when the defendant has exhibited an unwillingness to reform his miscreant ways and to conform his life according to the law.
Id. at 494, 879 A.2d at 195 (emphasis in the original).
The record in this case reveals only that Prysock committed the first prior "strike" on August 15, 1991 and plead guilty to that offense on August 24, 1992. N.T. 5/20/09, at 38. The record does not indicate when Prysock committed the second offense relied upon as a prior "strike", but it reveals that he pled guilty to it November 26, 1991 - almost a year before he pled guilty to the August 15, 1991 offense. Id. There is nothing in the record about the timing of sentencing on either of these prior "strikes." From this tight timeline and the limited information in the record, we cannot discern whether there was temporal spacing between the prior offenses such that Prysock was given two opportunities to reform, as is required before the third-strike enhancement of § 9714(a)(2) may be applied. Shiffler, 583 Pa. at 494, 879 A.2d at 195. Accordingly, we remand this case to the PCRA court to resolve this issue.
Prysock also argues that the § 9714(a)(2) mandatory minimum sentence cannot apply because the burglary and robbery convictions upon which the trial court relied as Prysock's previous strikes do not qualify as violent crimes under § 9714. Appellant's Brief at 7.
Section 9714 contains the following definition of crimes of violence:
(g) Definition.--As used in this section, the term 'crime of violence' means murder of the third degree, voluntary manslaughter, manslaughter of a law enforcement officer as defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law enforcement officer), murder of the third degree involving an unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to murder of unborn child), aggravated assault of an unborn child as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault of unborn child), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), assault of law enforcement officer as defined in 18 Pa.C.S. § 2702.1 (relating to assault of law enforcement officer), use of weapons of mass destruction as defined in 18 Pa.C.S. § 2716(b) (relating to weapons of mass destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism), trafficking of persons when the offense is graded as a felony of the first degree as provided in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3) (relating to ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, drug delivery resulting in death as defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
42 Pa.C.S.A. § 9714(g) (emphasis added). Thus, only burglary as defined by § 3502(a)(1) qualifies as a crime of violence for purposes of § 9714. Section 3502(a)(1) provides that "[a] person commits the offense of burglary if, with the intent to commit a crime therein, the person  enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present[.]" 18 Pa.C.S.A. § 3502(a)(1). Prysock argues that the prior burglary conviction relied upon by the trial court as one of his prior "strikes" does not fit this definition, because no one was present. Appellant's Brief at 7. Similarly, Prysock argues that the robbery relied upon by the trial court as a prior strike does not fit into the categories of robberies that qualify as crimes of violence per § 9714(g). Id.
Unfortunately, we cannot resolve this issue. There is no information regarding the 1991 and 1992 convictions in the record. We recognize that at sentencing, the Commonwealth stated that these crimes qualified as prior strikes. However, there is nothing of record to support these statements, and the statement alone is an insufficient basis for the application of a mandatory minimum sentence pursuant to § 9714. Commonwealth v. Norris, 819 A.2d 568, 576 (Pa.Super. 2003) (holding that sentencing court must make determination of previous convictions based on a preponderance of the evidence and that "verbal recitation by the Commonwealth of what it considers to be  prior 'strikes, ' without the court having the benefit of [the defendant's] written record, is simply insufficient" to permit application of mandatory minimum sentence pursuant to § 9714). Accordingly, in addition to determining whether Prysock had the requisite opportunity to reform between the prior two convictions, on remand the PCRA court must also address whether Prysock's previous convictions meet the definition of crimes of violence pursuant to § 9714(g). In so doing, the PCRA court should appoint new counsel to represent Prysock for the resolution of these claims. Order vacated. Case remanded for further proceedings.