NOT ALL PRIOR ROBBERIES ARE “PRIOR CRIMES OF VIOLENCE” FOR MANDATORY SENTENCING PURPOSES
The Superior Court has decided the case of Commonwealth v. Diaz, No. 3165 EDA 2015 (December 16, 2016), holding that the trial court committed error in determining that Daiz’s prior federal conviction for robbery triggered Pennsylvania’s mandatory sentencing scheme where the prior robbery conviction did not involve threatening another with or intentionally putting him in fear of imminent serious bodily injury.
On February 12, 2015, Diaz was convicted of rape (unconscious person), unlawful contact with minor, sexual assault, aggravated indecent assault (without consent), indecent assault (without consent and unconscious person), corruption of minors (two counts), furnishing liquor to minors (two counts) and endangering the welfare of a child.
On February 13, 2015, the Commonwealth provided Diaz with notice of its intent to seek a 25-year mandatory minimum sentence based on Pennsylvania’s statute which calls for a mandatory sentence of 25 years if a defendant has been previously been convicted of two or more such crimes of violence arising from separate criminal transactions or, a mandatory sentence of 10 years if the defendant has previously been convicted of one crime of violence.
Specifically, the Commonwealth averred Diaz had been convicted of two prior crimes of violence: (1) a 1998 New York conviction for attempted robbery 3rd degree; and (2) a 2001 federal conviction for conspiracy to commit robbery and use of a firearm. At the May 28, 2015, sentencing hearing, the trial court found the Commonwealth failed to establish Diaz’s New York conviction constituted an equivalent crime of violence under the mandatory sentencing provision. However, the court concluded that Diaz’s federal conviction was an equivalent prior crime of violence, and, pursuant to the above mandatory sentencing scheme, sentenced him to a mandatory minimum term of 10 to 20 years’ imprisonment for the charge of rape.
Diaz contended the trial court erred in imposing a 10 year mandatory minimum sentence because the Commonwealth failed to demonstrate that he had been convicted of a prior crime of violence as defined in the statute.
The trial court erred in determining Diaz had committed a prior crime of violence justifying the imposition of his mandatory minimum sentence. Judgment of sentence was therefore vacated in part and the case remanded for re-sentencing.
The Superior Court first discussed the standards to be applied when determining whether the Commonwealth demonstrated if Diaz had been convicted of a prior crime of violence.
In doing so, the Superior Court reviewed prior case law discussing how the trial court is to analyze prior out-of-state convictions as applied to the mandatory sentencing statute for “prior crimes of violence.” The Superior Court noted that the trial court is required to carefully review the elements of the foreign offense in terms of classification of the conduct proscribed, its definition of the offense, and the requirements for culpability in order when determining if an offense was an equivalent offense, i.e. – substantially identical in nature and definition to the out-of-state or federal offense when compared to the Pennsylvania offense. In doing so, the court is to focus on the prior crime for which the defendant was convicted, not the factual scenario underlying that crime.
Accordingly, the Superior Court set out to determine whether Diaz’s federal “robbery” conviction was an equivalent crime of Pennsylvania’s robbery offense which triggered the applicable mandatory sentencing provision. That statute mandates that for a robbery to be considered a “crime of violence,” a person, in the course of committing a theft, would have to threatens another with or intentionally puts the other person in fear of immediate serious bodily injury.
In Diaz’s case, the trial court found the language of the two statutes “substantially similar and comparable to each other,” explaining that “both statutes concern a robbery or unlawful taking,” as well as a “concern over the use or threat of violence (force) or instilling fear of injury in another during a theft or robbery.” However, Diaz argued that the broader behavior proscribed in the federal statute is dispositive, since the Pennsylvania statute specifically “requires proof that the defendant threatened another with or intentionally put him in fear of imminent serious bodily injury.”
The Superior Court concluded that Diaz’s prior federal conviction of interference with commerce by threats or violence was not an equivalent crime to the Pennsylvania robbery statute triggering the mandatory sentencing provision. The federal statute refers to the obstruction of the movement of property in commerce by, inter alia, the commission or threat of physical violence to any person or property. The federal statute specifically criminalizes the unlawful taking of property from a person against his will “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.” However, nowhere does the statute refer to the commission of, or threat of, serious bodily injury as required under the relevant subsection of the Pennsylvania robbery statute.
The Superior Court also concluded that Diaz’s attendant federal conviction of “using a firearm during a robbery” did not transform his federal conviction of interfering with commerce into an equivalent crime of violence under Pennsylvania’s mandatory sentencing statute. The federal statute does not require a defendant to have brandished, or even displayed, the firearm while committing a “crime of violence.” Further, the Superior Court noted that neither Pennsylvania’s possessing an instrument of crime statute nor any provisions of the Uniform Firearms Act qualify as “crimes of violence” under the mandatory sentencing statute.
Therefore, the Superior Court concluded that the trial court erred in imposing the “prior crime of violence” mandatory minimum sentence on Diaz’s conviction of rape.
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