Commonwealth, Aplt. v. Armstrong, A.Commonwealth, Aplt. v. Armstrong, A.
Lead
ORDER
AND NOW, this 30th day of December, 2014, the Order of the Superior Court is AFFIRMED based on the reasoning set forth in its opinion addressing the issue on which this Court granted allowance of appeal, namely, “Does 42 Pa.C.S.A. Section 9714(a)(2) require prior sentencing as a second strike offender to invoke the third-strike sentencing provision?” Commonwealth v. Armstrong,
Dissenting Opinion
dissenting.
The decision to expressly adopt a portion of the Superior Court’s opinion as binding precedent of this Court is not our common practice, and in my judgment is best reserved for areas less in controversy than this. See, e.g., Commonwealth v. Greene,
Respectfully, the reasoning of the Superior Court’s opinion here is largely the acknowledgement of the “recidivist theory” from case law which that court is constrained to follow. However, this precludes any meaningful discussion of the distinction arising in the present case, which is not addressed in the cited cases. In so doing, the Superior Court’s decision must be read as implementing a new rule of law that, where a defendant has not been previously sentenced under § 9714(a), he is not eligible to receive a sentence under § 9714(b), regardless of the empirical applicability of that section. See Commonwealth v. Armstrong,
Section 9714 is a straightforward statute, though its scheme has been muddled and made intricate (and by no means settled) by case law in which this Court has not been unanimous. While distinguishing the instant matter from cited precedent, the Superior Court applied the “recidivist theory,” thereby approving another circumstance where § 9714 may not be applied despite the unambiguous language of the statute. See id., at 242 (“Instantly,
Before us are facts this Court has yet to address under the current provisions of § 9714. While this Court considered a similar criminal-history background in Commonwealth v. Dickerson,
However, § 9714’s current language not only allows a third-strike sentence under the present facts — on its face, it mandates it. Its application is not jumbled by ambiguity: it applies if “at the time of the commission of the current offense” the defendant had two or more “convictions” from “separate criminal transactions.” The statutory scheme is straightforward and unambiguous — at the time of the present crime, how many prior convictions does the defendant have? At the time he committed the crime at issue here, appellee had at least two such convictions and they were not from the same criminal transaction. As the answer here is two, and they were not for the same criminal transaction, § 9714 applies.
Or so it would seem. My point is that if this statute is to be trumped by the recidivist theory, explanation and pronouncement should come from this Court. Such advocacy on the merits that I offer is not to express what the outcome of this case should be, but is meant only to highlight that appellee presents a colorable argument. I dissent solely to note that if the recidivist theory is to render clear statutory language irrelevant, under this previously unaddressed scenario, it should not happen through the back door of adopting a portion of a Superior Court opinion.
Notes
. The roots of the theory are not grounded in statute. The Dickerson Court adopted the Superior Court’s rationale concerning recidivism. See id., at 992 (quoting Commonwealth v. Dickerson,