A blog of the Philadelphia Bar Association’s Criminal Justice Section

violet oakle

By Burt Rose

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In an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County, CP–51–CR–0006396–2009, CP–51–CR–0009692–2009, the Superior Court of Pennsylvania has affirmed a conviction in COMMONWEALTH of Pennsylvania v. Anthony ARMSTRONG, Appellant, 505 EDA 2012, 2013 WL 3929968, 2013 PA Super 220 (July 31, 2013) but has vacated a 3rd strike sentence under 42 PaCS 9714 and

Com. v. Shiffler, 879 A.2d 185 (Pa. 2005), for failure to allow the Appellant to have an opportunity for reform after his second strike.

The case was before Judges GANTMAN,  ALLEN, and PLATT, who wrote the Opinion. A footnote near the end of the Opinion seemed worthy of bringing a point to your attention (emphasis supplied by me):

FN4. To the extent that Appellant claims a constitutional violation under the line of cases following Apprendi v. New Jersey, 530 U.S. 466 (2000), we need not address this argument where he concedes that “[t]he statutory scheme enacted in Section 9714 complies with the Apprendi rule[.]” (Appellant’s Brief, at 49 (citing Apprendi, supra at 490, for holding that “[o]ther than the fact 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”)). See also Alleyne v. United States, 133 S.Ct. 2151, 2160 n. 1 (2013) (“In Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision’s vitality, we do not revisit it for purposes of our decision today.”)

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