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Hot on the heels of two U.S. Supreme Court decisions in which a divided court ruled that three strikes statutes do not violate the Eighth Amendment, the Pennsylvania Superior Court has determined that where the commonwealth intends to pursue mandatory sentencing pursuant to state three strikes provisions, it need only give general notice of its plan to invoke the statute. The Superior Court in Commonwealth v. Norris also specified that providing notice before conviction, as opposed to after judgment but before sentencing, would not render such notice insufficient, unreasonable or misleading. Finally, Judge John T. Bender’s opinion states that pursuant to Pa.C.S. � 9714(d), a sentencing court must have before it a defendant’s complete record of prior convictions before determining the applicability of the statute’s three strikes sections. On the issue of what kind of notice is required before sentencing, Bender quoted the Superior Court decision in Commonwealth v. Vasquez, where the court examined mandatory sentencing in narcotics cases: “The Legislature intended that the commonwealth ‘provide the courts and defendants with general notice of its intention to invoke the statutory provisions,’” the judge wrote. “‘When the commonwealth gives reasonable notice that it intends to invoke [� 9714,] it provides notice of its intent to seek a punishment that encapsulates all relevant provisions set forth in that section.’” The defendant in Norris had been convicted of robbery and rape before a 1998 fight outside a Philadelphia nightclub resulted in convictions of aggravated assault, simple assault, reckless endangerment, possession of an instrument of crime and criminal conspiracy. Due to defendant Edward Norris’ past convictions for violent crimes, the commonwealth included in its bill of information for the aggravated assault charge notice of its intent to seek a mandatory minimum sentence under � 9714, the opinion states. However, the state failed to specify whether it planned to seek sentencing under that statute’s two strikes or three strikes provision. The two strikes section — 9714(a)(1) — specifies a mandatory minimum prison term of 10 years, while the three strikes provision — 9714(a)(2) — requires a mandatory minimum sentence of 25 years’ imprisonment. At sentencing, Bender reported, the trial court declined to slap Norris with the 25-year minimum sentence required under � 9714(a)(2) because the state’s bill of information did not contain proper notice of a third, as opposed to a second, strike. According to the opinion, the lower court concluded that the notice provided was misleading. According to the Superior Court’s opinion, the bill of information said that “‘should defendant be convicted of aggravated assault for having intentionally, knowingly or recklessly caused serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, the commonwealth will proceed under 42 Pa. C.S. Section 9714 (concerning sentences for second and subsequent offenses) and seek imposition of a mandatory sentence in accordance therewith.’” “‘As noted, I believe that there was not just a failure to give notice of the intent to invoke the third strike,’” the opinion states, quoting the sentencing judge’s statements, “‘but what was given was misleading. … Although [Norris] had two separate crimes, robbery and rape, occurring at two separate times, the sentences were before the same judge and they were concurrent. Thus it is easy to believe that this was considered one crime of violence, not two. … Although the statute provides that failure to provide notice does not void the multiple offender section of the statute, providing misleading advice does.’” The Superior Court began by setting out � 9714 in full. Bender noted that Subsection (e) “clearly indicates that the sentencing court has no discretion to impose a lesser minimum sentence than that mandated by the applicable subsection, (a)(1) or (a)(2), as the case may be.” Following Vasquez, where Bender said the notice provision at issue was essentially identical to that in Norris, the court concluded that the state’s notice in Norris, which invoked � 9714 generally, was reasonable and not misleading. “The commonwealth’s notice is deemed to have encapsulated all relevant provisions,” the opinion states. “This conclusion makes sense in light of the remaining language of Section 9714(d), which indicates the applicability of Section 9714 is to be determined at the time of sentencing, with the sentencing court having before it the benefit of a complete criminal record and determining, by a preponderance of the evidence, the defendant’s previous convictions of violent crimes.” Because the state had verbally informed the court of Norris’ two prior convictions, but the sentencing judge did not have access to a complete record of the defendant’s criminal history, the Superior Court said that on remand the sentencing court would have to comply with Subsection (d) of 9714. That section states that “prior to imposing sentence on an offender under Subsection (a), [the sentencing court] shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender.” “A verbal recitation by the commonwealth of what it considers to be Norris’ prior strikes, without the court having the benefit of Norris’ written record, is simply insufficient for purposes of Section 9714(d),” Bender wrote. Finally, the court approved the notice contained in the bill of information provided prior to conviction because the state had verbally indicated on the record at the sentencing hearing that it would pursue a mandatory sentence under � 9714, and described Norris’ two violent crimes convictions at that time. Additionally, the opinion indicates that the sentencing transcript showed that the state communicated its plan of proceeding under � 9714 to defense counsel the day before the sentencing hearing. Judges Justin M. Johnson and John T.J. Kelly Jr. rounded out the Superior Court panel.

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