J-S02043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TONY RAY ARVELO

Appellant No. 1668 EDA 2014

Appeal from the Judgment of Sentence of March 14, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No.: CP-48-CR-0001560-2013

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED APRIL 17, 2015

Tony Ray Arvelo appeals the May 20, 2014 judgment of sentence. We 

affirm. 

Following a jury trial, Arvelo was convicted of one count each of 

aggravated assault, simple assault, and possession of instrument of crime, 

and two counts of recklessly endangering another person.1 Sentencing was 

scheduled for May 14, 2014. Approximately one week prior to sentencing, 

____________________________________________

1 See 18 Pa.C.S. §§ 2701(a)(1), 2702(a)(2), 907, and 2705, 

respectively. Arvelo was acquitted of one count each of attempted murder, 

18 Pa.C.S. § 901 (18 Pa.C.S. § 2501), aggravated assault, and simple 

assault. 

Neither the parties nor the trial court set forth a summary of the facts 

underlying Arvelo’s convictions. Presumably, they have declined to do so 

because Arvelo’s present challenges concern only Arvelo’s sentence. For 

that reason, the facts of this case are immaterial to our disposition, and we, 

like the parties, discern no need to detail those facts here. 
J-S02043-15

- 2 -

the assistant district attorney informed counsel for Arvelo that the 

Commonwealth intended to invoke the ten-year mandatory minimum 

sentence that was applicable to Arvelo as a second strike offender pursuant 

to Pennsylvania’s Three Strikes Law, 42 Pa.C.S. § 9714(a)(1), (d). Notes of 

Testimony (“N.T.”), 3/14/2014, at 2. Two days before sentencing, the 

assistant district attorney informed defense counsel for the second time that 

the Commonwealth intended to pursue the mandatory minimum sentence. 

Id. Defense counsel confirmed at sentencing that he had twice received the 

Commonwealth’s notice. Id. Nonetheless, at sentencing, defense counsel 

objected to the imposition of the second-strike mandatory minimum 

sentence. Id. at 2-4. The trial court overruled the objection, and, on March 

14, 2014, sentenced Arvelo in accordance with § 9714(a)(1) to ten to 

twenty years’ incarceration on the aggravated assault count. The trial court 

also sentenced Arvelo to fourteen to twenty-eight months’ incarceration on 

the possession of instrument of a crime count, and twelve to twenty-four 

months’ incarceration on the recklessly endangering another person count. 

The court ordered that the sentences run consecutively to each other, 

resulting in an aggregate sentence of twelve years and two months to 

twenty-four years and four months’ incarceration. 

On March 24, 2014, Arvelo filed a motion for reconsideration of his 

sentence. Following a hearing, the trial court denied Arvelo’s motion. On 

June 4, 2014, Arvelo filed a timely notice of appeal. In response, the trial 

court directed Arvelo to file a concise statement of errors complained of on 
J-S02043-15

- 3 -

appeal pursuant to Pa.R.A.P. 1925(b). On June 19, 2014, Arvelo filed a 

timely concise statement. On June 26, 2014, the trial court filed an opinion 

pursuant to Pa.R.A.P. 1925(a).

Arvelo presents the following question for our review:

Did the trial court abuse its discretion and sentence [Arvelo] 

excessively and improperly in allowing the Commonwealth to 

seek the mandatory second strike when they failed to give notice 

to defense counsel and [Arvelo], where the first case occurred 

when [Arvelo] was seventeen years old and when the mandatory 

minimum statutes have been ruled unconstitutional?

Brief for Arvelo at 7. Although Arvelo presents a single statement of the 

question presented in this appeal, he actually raises three distinct questions 

that we must review: (1) whether the Commonwealth gave reasonable 

notice of their intent to pursue the second strike mandatory minimum 

sentence, id. at 10; (2) whether Arvelo’s first violent felony conviction 

should be considered a first strike because it occurred when he was 

seventeen years-old, id. at 11; and (3) whether the mandatory minimum 

provisions of the Three Strikes Law are constitutional pursuant to the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 

2151 (U.S. 2013), id. at 11. We take each inquiry in turn.

Although Arvelo structures his claims as challenges to the trial court’s 

discretion, challenges involving the application of a mandatory minimum 

sentence pursuant to Pennsylvania’s Three Strikes Law are challenges to the 

legality of the sentence imposed. See Commonwealth v. Norris, 819 A.2d 

568, 571 (Pa. Super. 2003) (citing Commonwealth v. Edrington, 780 
J-S02043-15

- 4 -

A.2d 721, 723 (Pa. Super. 2001)). Accordingly, our scope of review is 

plenary, and our standard of review is limited to ascertaining whether the 

trial court committed an error of law. See Commonwealth v. Leverette, 

911 A.2d 998, 1002 (Pa. Super. 2006).

Arvelo first maintains that the Commonwealth failed to provide him 

with adequate notice of its intent to pursue the second-strike mandatory 

minimum sentence pursuant to 42 Pa.C.S. § 9714(d). Arvelo notes that the 

Commonwealth’s notice, given mere days before sentencing, was insufficient 

to constitute reasonable notice pursuant to § 9714(d). We disagree.

Pursuant to § 9714(a), any person who is “convicted in any court of 

this Commonwealth of a crime of violence shall, if at the time of the 

commission of the current offense the person had previously been convicted 

of a crime of violence, be sentenced to a mandatory minimum sentence of at 

least ten years of total confinement. . . .” 42 Pa.C.S. § 9714(a)(1). 

Because the provisions of this section are, by statute, not elements of any 

particular offense, the Commonwealth is not obligated to provide a 

defendant with notice of its intent to pursue the second-strike mandatory 

sentence before trial. However, “reasonable notice of the Commonwealth’s 

intention to proceed under [§ 9714(a)(1)] shall be provided after conviction 

and before sentencing.” Id. § 9714(d) (emphasis added). 

Arvelo admits that the Commonwealth notified him of its intent, but 

nonetheless contends that the notice was insufficient to trigger the 

application of the mandatory sentence because the notice was late in the 
J-S02043-15

- 5 -

proceedings and because it was given informally instead of in writing. 

However, the statute does not require that notice be given in any particular 

manner, or at any particular time. Subsection 9714(d) requires only that 

the notice be “reasonable” and that it be given after conviction and before 

sentencing. 

The record confirms that the Commonwealth twice provided Arvelo 

with notice, once approximately one week before sentencing and once two 

days before sentencing. Our only inquiry at this juncture is whether it was 

reasonable to provide notice so close in time to Arvelo’s sentencing. In light 

of our binding case law, we hold that the Commonwealth’s notice in this case 

was reasonable. For example, in Commonwealth v. Taylor, 831 A.2d 661 

(Pa. Super. 2003), the Commonwealth notified Taylor by fax at least two, 

and as many as three, days before sentencing that it intended to have 

Taylor sentenced to the mandatory minimum sentence as a second-strike 

offender. Id. at 666-67. We held that the Commonwealth’s notice was 

reasonable, even though only two or three days before sentencing, because, 

inter alia, Taylor had not indicated at sentencing that he was unprepared to 

challenge the application of § 9714(a)(1), nor did he seek a continuance in 

order to make such a challenge. Id.; see also Commonwealth v. 

Saksek, 522 A.2d 70, 72 (Pa. Super. 1987) (holding that notice given three 

days before sentencing was reasonable for purposes of applying the 

mandatory minimum sentence). 
J-S02043-15

- 6 -

Here, Arvelo received notice within the same general timeframe as 

occurred in Taylor. Additionally, Arvelo was prepared to challenge the 

application of the mandatory sentence and he did not request, nor indicate 

that he needed, more time to prepare such a challenge. Thus, pursuant to 

Taylor and Saksek, supra, Arvelo is not entitled to relief.

In his second contention, Arvelo contends that his first conviction for a 

violent crime should not be considered a first strike for purposes of 

subsection 9714(a)(1) because he “was not an adult when the first crime of 

violence occurred and yet he was sentenced as a second strike violent felony 

which gave him 10 to 20 years in a state prison.” Brief for Arvelo at 11. 

This statement constitutes the entirety of Arvelo’s argument on this point. 

Conspicuously absent is any reference to case law or statutory law 

supporting the contention that an act committed while a juvenile cannot 

constitute a first strike for purposes of subsection 9714(a)(1). See 

Pa.R.A.P. 2119(a) (“The argument shall be . . . followed by such discussion 

and citation of authorities as are deemed pertinent.”). 

Regardless of Arvelo’s briefing inadequacies, his claim does not merit 

relief. To be a first strike, a prior conviction must be a “crime of violence,” 

which is defined as follows:

As used in this section, the term “crime of violence” means 

murder of the third degree, voluntary manslaughter, 

manslaughter of a law enforcement officer as defined in 18 

Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law 

enforcement officer), murder of the third degree involving an 

unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to 

murder of unborn child), aggravated assault of an unborn child 
J-S02043-15

- 7 -

as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault 

of unborn child), aggravated assault as defined in 18 Pa.C.S. § 

2702(a)(1) or (2) (relating to aggravated assault), assault of law 

enforcement officer as defined in 18 Pa.C.S. § 2702.1 (relating 

to assault of law enforcement officer), use of weapons of mass 

destruction as defined in 18 Pa.C.S. § 2716(b) (relating to 

weapons of mass destruction), terrorism as defined in 18 Pa.C.S. 

§ 2717(b)(2) (relating to terrorism), trafficking of persons when 

the offense is graded as a felony of the first degree as provided 

in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape, 

involuntary deviate sexual intercourse, aggravated indecent 

assault, incest, sexual assault, arson endangering persons or 

aggravated arson as defined in 18 Pa.C.S. § 3301(a) or (a.1) 

(relating to arson and related offenses), ecoterrorism as 

classified in 18 Pa.C.S. § 3311(b)(3) (relating to ecoterrorism), 

kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1) 

(relating to burglary), robbery as defined in 18 Pa.C.S. § 

3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a 

motor vehicle, drug delivery resulting in death as defined in 18 

Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), 

or criminal attempt, criminal conspiracy or criminal solicitation to 

commit murder or any of the offenses listed above, or an 

equivalent crime under the laws of this Commonwealth in effect 

at the time of the commission of that offense or an equivalent 

crime in another jurisdiction.

42 Pa.C.S. § 9714(g). Notably, the definition of a crime of violence does not 

include a provision that requires the delineated crimes to be committed only 

by those over the age of eighteen. Had Arvelo been adjudicated delinquent 

as a juvenile on his prior robbery, that adjudication would not be considered 

a first strike. See Commonwealth v. Thomas, 743 A.2d 460, 468 (Pa. 

Super. 1999). But that was not the case. Arvelo was tried and convicted as 

an adult for the crime of robbery. So long as Arvelo was convicted as an 

adult, the fact that he was seventeen at the time that he committed the 
J-S02043-15

- 8 -

offense is immaterial to determining whether his robbery constituted a first 

strike. Arvelo’s second argument has no merit.

In his final contention, Arvelo argues that the mandatory sentencing 

provisions of the Three Strikes Law are unconstitutional pursuant to the 

United States Supreme Court’s decision in Alleyne v. United States, 133 

S.Ct. 2151 (U.S. 2013). Recently, in Commonwealth v. Newman, 99 

A.3d 86 (Pa. Super. 2014), and progeny, this Court has declared various 

mandatory minimum sentence statutes to be unconstitutional in light of 

Alleyne.

2

 Arvelo contends that the mandatory sentencing provisions in the 

Three Strikes Law must meet the same unconstitutional fate as those 

provisions that we have recently struck down under Alleyne. We disagree.

In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), we 

presented the relevant portion of the Alleyne Court’s rationale as follows:

In Alleyne, the Supreme Court held that “facts that increase 

mandatory minimum sentences must be submitted to the jury” 

____________________________________________

2

In Newman, we struck down as unconstitutional the mandatory 

minimum sentence that was applicable to a convicted drug offender when a 

firearm is found on a drug dealer, an accomplice, or in the vicinity of the 

contraband pursuant to 42 Pa.C.S. § 9712.1. See Newman, 99 A.3d at 98, 

101-02. In Commonwealth v. Valentino, 101 A.3d 801 (Pa. Super. 

2014), we held that, pursuant to Newman and Alleyne, the mandatory 

minimum sentences set forth at 42 Pa.C.S. § 9712 (pertaining to the 

commission of certain crimes with a firearm) and § 9713 (pertaining to 

crimes committed on public transportation), also were unconstitutional. Id.

at 812. See also Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa. 

Super. 2014) (applying Alleyne and recognizing that the mandatory 

minimum sentences associated with the weight of narcotics possessed by a 

drug dealer pursuant to 42 Pa.C.S. § 7508 are unconstitutional). 
J-S02043-15

- 9 -

and must be found beyond a reasonable doubt. Alleyne, supra

at 2163. Alleyne is an extension of the Supreme Court’s line of 

cases beginning with Apprendi v. New Jersey, 530 U.S. 466 

(2000). In Alleyne, the Court overruled Harris v. United 

States, 536 U.S. 545 (2002), in which the Court had reached 

the opposite conclusion, explaining that there is no constitutional 

distinction between judicial fact[-]finding which raises the 

minimum sentence and that which raises the maximum 

sentence.

It is impossible to dissociate the floor of a sentencing 

range from the penalty affixed to the crime. Indeed, 

criminal statutes have long specified both the floor and 

ceiling of sentence ranges, which is evidence that both 

define the legally prescribed penalty. This historical 

practice allowed those who violated the law to know, ex 

ante, the contours of the penalty that the legislature 

affixed to the crime—and comports with the obvious truth 

that the floor of a mandatory range is as relevant to 

wrongdoers as the ceiling. A fact that increases a 

sentencing floor, thus, forms an essential ingredient of the 

offense.

Moreover, it is impossible to dispute that facts increasing 

the legally prescribed floor aggravate the punishment. 

Elevating the low-end of a sentencing range heightens the 

loss of liberty associated with the crime: the defendant’s 

expected punishment has increased as a result of the 

narrowed range and the prosecution is empowered, by 

invoking the mandatory minimum, to require the judge to 

impose a higher punishment than he might wish. Why 

else would Congress link an increased mandatory 

minimum to a particular aggravating fact other than to 

heighten the consequences for that behavior? This reality 

demonstrates that the core crime and the fact triggering

the mandatory minimum sentence together constitute a 

new, aggravated crime, each element of which must be 

submitted to the jury.

Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and 

citations omitted).

Miller, 102 A.3d at 994-95 (citations modified). 
J-S02043-15

- 10 -

As noted in Miller, Alleyne is an extension of the Supreme Court’s 

decision in Apprendi, wherein the Court held that any fact that increased a 

penalty beyond a statutory maximum must be submitted to a jury and 

proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Critically, 

the Apprendi Court specifically exempted the fact of a prior conviction from 

its holding. Id. Thus, the existence of a prior conviction does not need to 

be presented to a jury and proven beyond a reasonable doubt before a trial 

court may impose a mandatory sentence based upon that conviction. See 

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2013) (“Prior 

convictions are the remaining exception to [Apprendi and Alleyne], insofar 

as a fact-finder is not required to determine disputed convictions beyond a 

reasonable doubt to comport with the Sixth Amendment jury trial right.”). 

Because the application of the mandatory sentence for a second strike is 

trigged exclusively by the existence of a prior conviction, see 42 Pa.C.S. § 

9714(a) and (g), Alleyne has no application herein. The trial court’s 

imposition of a mandatory minimum sentence on Arvelo as a second strike 

offender was not unconstitutional. 

Judgment of sentence affirmed. 
J-S02043-15

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015