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As long as a violent offender committed unrelated crimes on separate occasions, each counts as a “strike” under Pennsylvania’s three-strikes law — even if the offender’s plea consolidated two or more of the crimes at a single judicial proceeding, the Superior Court has ruled. “Pennsylvania’s ‘three-strikes’ statute speaks in terms of convictions for separate crimes,not separate occasions on which a defendant appeared before the court,” Judge Richard B. Klein wrote in an opinion joined by Judge Michael T. Joyce. In Commonwealth v. Shiffler, the court vacated a burglar’s sentence of five to 10 years in prison and remanded the case to the Lancaster County trial court so he could be sentenced to a minimum of 25 years as a third-time offender under the state three-strikes law. Albert S. Shiffler pleaded guilty in 1997 to three separate burglaries and received concurrent sentences that added up to 11-and-a-half to 23 months in prison. In 2002, Shiffler pleaded guilty to his fourth burglary, and the trial court sentenced him to five to 10 years under the second strike provision of the three-strikes law, according to the opinion. The commonwealth appealed the sentence, but Shiffler argued that the crimes consolidated during his 1997 pleading should only be considered one strike under the three-strikes law. The Superior Court decided that although Shiffler had only one prior contact with the court system before his most recent burglary, “that contact resulted in multiple convictions for three distinct burglaries,” Klein wrote. “Because Shiffler previously pled guilty to three crimes of violence arising from three separate criminal transactions before he pled guilty to the instant charge, the trial court should have imposed the mandatory minimum sentence.” The “clear and unambiguous” language of the three-strikes law, Section 9714 (a)(2), treats each prior conviction as a separate offense, Klein explained. The law states: “Where the person had at the time of the commission of the current offense previously been convicted of two or more such 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 “ Klein wrote: “It is true that the ‘three-strikes’ law was intended to impose a stiffer penalty on those hardened and incorrigible criminals who have been unaffected by prior punishment. . . . While Shiffler may not be the kind of incorrigible criminal who has been unaffected by the penal system that Section 9714 anticipated, nonetheless the statutory language is clear.” Klein did note that the law may have addressed the recidivist policy “better” if its drafters in the Legislature had separated individuals who commit crimes, serve their time, then commit more crimes, from those who commit a series of crimes and are sentenced all at once, like Shiffler. “However, the legislation as drafted belies this philosophy,” Klein wrote. “Although statements by the Legislature might have given lip service to the idea that it was merely to protect against the ‘incorrigible criminal’ . . . the statute itself does not support this view. The language of the statute merely talks about the number of prior convictions for separate crimes, not the number of dates on which a defendant was found guilty or pled guilty.” Had the Legislature intended otherwise, it would have included such language in the law, the Superior Court said. It pointed to the old version of New Jersey’s three-strikes law, which mandated a life sentence when an individual had “on two or more prior and separate occasions been convicted of a crime.” In interpreting that provision of the law, the New Jersey Supreme Court ruled that to be separate, “each conviction must be entered by a court in a separate court session on different days.” But after that ruling, New Jersey legislators amended the statute to mandate a life sentence even if the two or more convictions took place during a single proceeding — “each conviction counts as a separate ‘strike’ if the crimes were committed on prior and separate occasions,” Klein explained. Klein also noted that Shiffleris factually distinguishable from the court’s ruling in Commonwealth v. Dickerson, in which the defendant committed two rapes on the same day. After being convicted and sentenced for the first, he was sentenced as a recidivist for the second at the trial court level, according to the opinion. But because the second rape took place before he was convicted in the first case, the defendant could not be sentenced as a recidivist, the Superior Court ruled. Dickersondoesn’t affect the result in Shifflerbecause the most recent burglary was committed years before the prior burglaries; thus, the court can sentence him as a recidivist, Klein said. Senior Judge Stephen A. McEwen Jr. wrote separately, saying Shiffler’s sentence should be vacated, but that he should be re-sentenced as a second-time offender and not a third-time offender. Shiffler’s earlier sentence was his “first and only prior contact with the criminal justice system,” McEwen wrote. “Simply put, I am unable to so widely cast the net of incorrigibility that it will pull appellant into the penitentiary for 25 years, since I do not believe that at the time of his sentencing in this case, appellant was incorrigible and subject to the harsher provision of Section 9714(a)(2).” Vincent R. Mazeski served the prosecutor in the case, and Mary Jean Glick was defense counsel for Shiffler. (Copies of the 10-page opinion inCommonwealth v. Shiffler, PICS NO. 03-1545, are available fromThe Legal Intelligencer . Please refer to the Pennsylvania Instant Case Serviceorder form on Page 12. Some cases are not available until 1 p.m.)

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