*1 for it impose immediate sanctions what behavior,
perceives to be contumacious authority
“demoralization of the court’s citing
will follow.” Id. Cooke United
States, 517, 586, 267 U.S. 45 S.Ct. Appellant’s ar-
69 L.Ed. have been warned his
gument he should represent
failure client a sched- hearing
uled could be contumacious is self-
serving denigrating as an officer of the
court, warranting reply. We not conclude
appellant’s rights process to due were summary proceeding.
violated this
¶ 12 Having appellant’s arguments found merit,
devoid of we affirm the December of sentence. Judgment of sentence affirmed. Pennsylvania,
COMMONWEALTH
Appellant, SHIFFLER, Appellee.
Albert S.
Superior Pennsylvania. Court of 14, 2003. April
Submitted
Filed Oct. 2003. Mazeski, Atty., R. Dist.
Vincent
Asst.
Lancaster,
Com., appellant.
for
Glick, Lancaster,
appellee.
MaryJean
JJ.,
KLEIN,
BEFORE: JOYCE
McEWEN,
P.J.E.
KLEIN,
BY
J.:
OPINION
Albert S.
committed while the
a residential
He
sentenced
were
residents
home.
*2
H29
occupied
Shif-
imprison-
three different
residences.
years’
to a term of five to ten
May
all three crimes on
burglary.
pled guilty
for the
The Common-
fler
to
ment
12,1997
that
appeals, arguing
wealth
Shiffler
and received concurrent sentences
as a third-time violent
prison.
should be sentenced
in
to 23 months
totaling iVk
mini-
25-year mandatory
offender to a
25, 2002,
pled guilty
Shiffler
On June
previously
mum. Because Shiffler had
fourth,
burglary, his
and was
to the instant
day to
simi-
pled guilty on the same
three
provi-
the “second strike”
sentenced under
of which were commit-
burglaries,
lar
years in
of section 9714 to five to ten
sion
span,
argues
a two-hour time
he
ted within
recognized in its
prison. The trial court
they
only
be counted as
one
that
should
1925(a) opinion that
this sen-
Pa.R.A.P.
multiple
purposes
offense for
the
incorrect because
section
tence was
statute,
§
com-
offender
Pa.C.S.A.
9714(a)(1)
minimum
requires a
sentence
as the “three strikes” law.1
monly known
imprisonment
for a “second
years’
ten
the
agree with the Commonwealth that
We
However,
applied
the trial court
strike.”
prior con-
statutory language treats each
At
section of the statute.
a
wrong
the
offense,
though
as a
even
viction
minimum,
February
if the two
even
Therefore,
plea
the
was consolidated.
we
only
were counted as
one crimi-
burglaries
vacate the
of sentence and re-
transaction,
previous-
nal
Shiffler was still
mand for
be resentenced as
ly
separate,
of two
unrelated
convicted
25-year
third-time offender to the
mini-
burglaries when he was sentenced on the
mum.
Therefore,
have
charge.
instant
he should
9714(a)(2)
language
The
of section
is
under the “third strike”
been sentenced
9714(a)(2)
unambiguous.
clear and
Section
provision of section 9714.
person
states:
“Where the
at the time
of the commission of the current offense
recently
Supreme
5 Our
Court
ad-
previously been convicted of two or more
application
section
dressed
the
sepa-
arising
such crimes of violence
9714(a)(2)
Belak,
in
Commonwealth
transactions,
person
rate criminal
(Pa.2003). Belak was convicted
A.2d 1252
shall be sentenced to a minimum sentence
burglary
of his third
and was sentenced
years
of at
least 25
of total confine-
25-year
minimum under
section
9714(a)(2) (em-
§
ment. ...”
Pa.C.S.A.
9714(a)(2)
previously
because he had
been
added).
phasis
previous-
Because Shiffler
separate burglaries.
convicted of two
pled
ly
guilty to three crimes of violence
challenged
Belak
appeal,
at 1253. On
from three
criminal trans-
The
constitutionality of section 9714.
Su-
actions before he
to the instant
9714 was
preme Court held that section
imposed
charge, the trial court should have
that “un-
and further stated
constitutional
mandatory minimum
under
sentence
plain language
section
der
section
9714(a)(2),
the trial court determined
once
three
had been convicted of
that Belak
8 Shiffler committed his first
violence, it
to sen-
required
crimes of
February
in
second on
1997 at
mandatory minimum of
a.m.,
tence Belak to the
third
approximately 3:00
and his
on
imprisonment.” Id. at
twenty-five years’
February
approximately
1997 at
4:30
explained that “section
1256. The court
burglaries
a.m. He committed these
minimum,
mandatory
five-year
sen-
prior burglaries
when
the three
were con-
1. Even if
offense,
recog-
only
years
trial court
sidered
be ten
under the statute.
tence would
sentencing
only
Shiffler to
nized its error in
spirit.” 1 Pa.C.S.A.
9714(a)(2)
pursuing
its
pretext
on
effectively places the burden
9714(a)(2)
1921(b).
the of-
clear and
§
the Commonwealth to show
is
Section
crimes
has been convicted of three
fender
25-
requiring
in
a minimum
unambiguous
*3
Id.
of violence.”
who, at the
a defendant
year sentence for
offense,
the current
committing
time
Here,
clearly
has
116
the Commonwealth
or
previously convicted
has been
previously convict-
that Shiffler was
shown
sepa-
of violence
before more crimes
at least two crimes
ed of
violence
burglary.
Although
to his most recent
Shif-
he
rate criminal transactions.
9714(a)(2),
Therefore,
the
under section
the
prior contact with
only
fler had
required to sentence Shif-
trial court was
mul-
resulted in
system, that contact
court
of at least
mandatory minimum
fler to the
burgla-
tiple convictions for three distinct
Belak,
prison.
swpra.
in
years
25
Thus,
sentenced
he should have been
ries.
provision of sec-
the “third strike”
under
¶
true that
the “three
7 It
is
tion
impose
intended to
a stif
strikes” law was
and incorri
penalty
fer
on those hardened
¶
compel differ-
does not
10 Dickerson
unaffected
criminals who have been
gible
factually
it
distinct
result because
is
ent
prior punishment. See Commonwealth
by
case,
In that
Dickerson
from this case.
Dickerson,
Pa.Super.
590 A.2d
404
day.
rapes on the same
had committed two
(1991),
Pa.
aff'd,
538
and
He was convicted
H31 Therefore, 1997 con- the fact that Shiffler’s If intended the legislature Shiffler, pro- it would have court urged during single result victions occurred requiring that each con- language included being each from ceeding preclude does not separate proceeding. result from a viction under sec- as a “strike” counted of New example, For the former version 9714(a)(2). To hold otherwise would tion Jersey’s required “three strikes” law plain language contrary be imposition of a life sentence where statute. or more defendant had ‘“on two Pennsylvania’s reading This been convicted occasions ” also consistent with “three strikes” law is Livingston, crime.’ State v. of a *4 interpreting the federal federal case law (2002) 153, (quoting 162 N.J. provision, 18 2C:43-7.1(a)) sentencing enhancement (emphasis former N.J.S.A. See, added). e.g., § v. 924. United States Livingston, Jersey In the New U.S.C. (3d provi- Casiano, Supreme held that under that F.3d 425-26 Cir. Court 113 “ 1997) (under 924(c)(1), sion: ‘conviction’ section finding guilt by judge entered si- ‘the a or judgments two conviction means multaneously literally cannot be charac- necessarily precedes entry jury that having terized as been entered on “two thus, a final of conviction’ prior separate or more and occasions.” than ‘conviction’can occur in a “more one separate, To be each conviction must be (citation omitted); proceeding”) single a in a court separate entered court Wallace, 889 F.2d United States days. session on different (5th Cir.1989) (under 924(e)(1), 584 section “multiple arising separate from convictions ¶ treated as criminal transactions should be however, Following Livingston, convictions, separate regardless of the Jersey legislature New amended its “three involved”). judicial and a significant change. proceedings strikes” law made number of imposition of requires The statute now ¶ have been writ- 16 Different statutes a life sentence where the defendant “has different ways require ten different been convicted of two or more crimes that strikes” Pennsylvania’s results. “three separate prior and were committed on speaks in terms of convictions for statute occasions, regardless of the dates of crimes, on separate separate occasions 2C:43-7.1(a) (ef- convictions.” N.J.S.A. appeared before the which defendant 2003) added). Apr. (emphasis fective guilty of at court. Because Shiffler was Thus, unambiguously the amended statute prior enumerated violent least if multiple states that even convictions oc- occupied namely, burglaries of crimes— during proceeding, cur each conviction has separate days on two residences if counts as a “strike” the crimes —he purposes for prior at least two convictions prior separate oc- were committed on strikes” law. of the “three casions. Likewise, Pennsylvania’s statute ¶ Accordingly, we must vacate Shif- for vio- speaks only of convictions and remand judgment of sentence fler’s separate crimi-
lent crimes offender resentencing as a third-time require- There is no nal transactions. 9714(a)(2). in accordance with section on ment that the convictions be entered of sentence vacated. Judgment separate pro- during occasions or proceedings for further § Case remanded ceedings. 42 Pa.C.S.A. See opinion. Jurisdiction consistent -with this BUILDING, CO., Appellant, K-B
relinquished. P.J.E., McEWEN, files Concurring Dissenting Statement. CONSTRUCTION, INC., SHEESLEY AND DISSENTING
CONCURRING Barber, Angeline Barber and Cen Ara McEWEN, BY P.J.E.: STATEMENT A Division of First Com Bank west Bank, Appellees. majority monwealth Opinion While persuasive analysis and a reveals a careful Pennsylvania. Superior Court rationale, I agree and while expression of imposed appellant on the sentence 27, 2003. Jan. Submitted vacated, I am nonetheless com- be must remand, that, Filed Oct. 2003. upon ap- pelled to the view sentenced as second- pellant should be offender, third-time of- and not as a
time
fender. leg criminal of habitual purpose 2 The
islation, it, further impose I is to as see upon incorrigi hardened and
penalty those unaffected criminals who have been
ble Commonwealth
prior punishment.
Dickerson, Pa.Super. 590 A.2d (1991), Pa. aff'd, appel that The record reveals
lant, present in the prior to his conviction
case, entered, proceeding, a single in a burgla three guilty plea to
consolidated
ries, a consolidated sentence and received well, concurrent he received three
as since and one-half to of from eleven
sentences As imprisonment.
twenty three months Opinion, in his judge
the trial noted sentence majority accepted, this earlier only prior contact appellant’s first and Simply justice system. criminal
with the widely cast the net I am to so
put, unable appellant pull that it will incorrigibility I since years, for 25 penitentiary
into the time of
do not believe case, in appellant was
sentencing in this provi the harsher subject
corrigible
sion of Section