Roselli v. Smith
| Decision Date | 02 November 2020 |
| Docket Number | Civ. No. 17-2196 |
| Parties | FRANK ROSELLI, Petitioner, v. SUPERINTENDANT SMITH, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
MEMORANDUM
Habeas Petitioner Frank Roselli urges that the state court impermissibly found facts in ruling that his prior convictions qualified as predicates for the imposition of an enhanced sentence under Pennsylvania's "Three Strikes Law." Although there is no dispute as to the accuracy of the facts as found, because they were found by the court—and not the jury—Magistrate Judge Sitarski has determined that the Sixth Amendment was violated. I agree. The Third Circuit recently observed that the Constitution's "formalistic approach" to finding facts at sentencing "may result in some counterintuitive and hard to justify outcomes." Cabeda v. Attorney General, 2020 WL 477823, at *1 (3d Cir. 2020). That appears to be the case here. Accordingly, I will grant Roselli's Petition in part, subject to resentencing by the state court.
Roselli's crimes span two iterations of Pennsylvania's burglary statute. Although both include the elements of non-consensual entry into a building or structure intending to commit a crime, the versions differ to an extent.
In 1989, Roselli pled guilty to burglary as it was defined in the then-applicable 1972 Crimes Code. (See Tr. of Sentencing and Accompanying Exhibits, Doc. No. 10-96.); 1972 Pa. Laws 1534, §3501-3502. At that time, burglary was a first-degree felony, "whether or not a[nother] person [was] actually present" when the entry occurred. 1972 Pa. Laws 1534, § 3501.
In 1993 Roselli again pled guilty to first-degree felony burglary. (See Tr. of Sentencing and Accompanying Exhibits, Doc. No. 10-96.) Under Pennsylvania's then-applicable 1990 amendments, burglary was generally a first-degree felony; it was a second-degree felony only if no other person was present in the structure when the entry occurred and if the structure was not adapted for overnight entry. 18 Pa.C.S. § 3502(c)(2); 1990 Pa. Laws 1196 (effective July 1, 1991).
In 2012, Roselli was prosecuted for burglarizing a private home. Because the statute's 2012 amendments took effect after the alleged crime, Roselli was again prosecuted under the 1990 amendments, and was convicted by a jury of burglary and theft by unlawful taking. (Tr. of Trial, Doc. No. 10-102, at 131:2 - 132:18); 18 Pa.C.S. §§ 3502; 3921. The Commonwealth indicated that it intended to seek an enhanced 25-year mandatory minimum sentence pursuant to the Three-Strikes Law. (Notice of Intent to Seek Twenty-Five Year Mandatory Sentence, Doc. No. 10-103.) The Law requires imposition of a 25-year sentence for offenders with three qualifying convictions for enumerated "crime[s] of violence." 42 P.S.C.A. § 9714(a)(2) (). To obtain the enhanced 25 year sentence, the Commonwealth must prove by an evidentiary preponderance that each prior offense qualifies as a "crime of violence." Id. § 9714(d).
Burglary is a qualifying offense under subsection (g) of the Law only if the intruder enters a building or structure while another person is present and if the building or structure is adapted for overnight accommodations. See 42 P.S.C. § 9714(g) () Other forms of burglary—which are not crimes of violence—are set out in subsections (2) (),(3) (the structure is not adapted for overnight accommodation), and (4) (both). 18 Pa.C.S. § 3502(a)(2)-(4). A burglary conviction is thus a crime of violence under the Law only if the structure is adapted for overnight accommodation and a person is present at the time of entry. Under the Law as it existed when Roselli was sentenced in 2012, these definitions of burglary were the same. See 2011 Pa. Legis. Serv. Act 2011-40 (H.B. 396) ("burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present" is a crime of violence).
In reaching its verdict, the 2012 jury answered a special interrogatory, explicitly finding beyond a reasonable doubt that the victim "was present inside the structure while the defendant was inside the structure." (Tr. of Trial, Doc. No. 10-102, at 131:2-132:18.) At sentencing, the Commonwealth introduced evidence of Roselli's two prior burglary guilty pleas—including the underlying criminal complaints and affidavits of probable cause—to prove that the subject structures had been occupied when Roselli broke in. (Tr. of Sentencing and Accompanying Exhibits, Doc. No. 10-96, at 7:10-11; 8:4-5; 9:5-6; 9:25-10:4; 11:9-10.) The Commonwealth argued that these records proved that in committing both burglaries, Roselli had broken into occupied dwellings. (See, e.g., id. at 6:5-8.) As I discuss below, over Roselli's objection, the 2012 sentencing court found by an evidentiary preponderance that the dwellings were occupied, and then imposed the resulting mandatory 25 to 50 year sentence. (Id. at. 25:20-32:21.)
Judge Sitarski has detailed the complex history of this case, which I will summarize. (Doc. No. 34.) Roselli's direct appeal from his 2012 burglary conviction was initially dismissed as untimely. Com. v. Roselli, No. 3348 EDA 2012, 2013 WL 11264730 at *1 (Pa. Super. Ct. 2013). After his appellate rights were reinstated nunc pro tunc, Roselli filed a second direct appeal to theSuperior Court. Com. v. Roselli, No. 891 EDA 2014, 2015 WL 7722264, at *1 (Pa. Super. Ct. Jan. 13, 2015). Roselli raised eight issues, including, as I explain below, both a facial and as-applied Sixth Amendment challenge to the Three Strikes Law. Id. at *2-3. The Superior Court affirmed.
In July 2015 Roselli filed a pro se PCRA Petition, alleging that his trial counsel had incompetently conducted plea negotiations. (Pro Se PCRA Petition, Doc. No. 10-41.) Both the PCRA and Superior Courts rejected the contention. Com. v. Roselli, No. 327 EDA 2016, 2016 WL 6770829, at *2 (Pa. Super. Nov. 15, 2016). Roselli filed a second PCRA Petition in 2016, which he subsequently withdrew. (Doc. Nos. 10-14, 10-2.)
On May 12, 2017 Roselli filed the instant pro se Habeas Petition, in which he again impugns counsel's plea negotiations. He also urges that Pennsylvania's Three Strikes Law as applied to him violated the Sixth Amendment—what I will henceforth refer to as Roselli's "Apprendi challenge." (Doc. No. 1.) I referred the matter to Magistrate Judge Sitarski, who recommended that I deny relief. (Doc. Nos. 4, 12.) Because Roselli's "objections show[ed] that he apparently [intended] to raise an Apprendi issue, which, understandably, was not addressed" by Judge Sitarski, I did not adopt her Recommendation, and appointed counsel to file an Amended Petition. (Doc. No. 19.) Counsel then filed a "Supplement" to Roselli's pro se Petition, in which she reiterated and clarified Roselli's Apprendi challenge. (Doc. No. 20.)
Judge Sitarski now recommends rejecting Roselli's ineffectiveness claim but upholding his Apprendi challenge. (Doc. No. 34.) The Commonwealth has submitted Objections, which I will overrule. (Doc. No. 41.)
In reviewing a report and recommendation, I must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). I may "accept, reject, or modify, in whole or in part" these findings and recommendations. Id.; Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001). As to those portions to which no objections have been made, I must "satisfy [myself] that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b) Advisory Committee's Note.
Before seeking federal habeas relief, state prisoners must exhaust their state remedies. 28 U.S.C. § 2254(b). Federal courts usually will not review claims that were not presented to the state court in the manner prescribed by its procedural rules. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). "[I]f it is clear that the habeas petitioner's claims [would] now [be] procedurally barred under state law," the claims are exhausted but procedurally defaulted. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Accordingly, before federal courts will review a habeas claim, the petitioner usually must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "[A] petitioner must [fairly] present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010).
A petitioner can "fairly present" his claim by:
(a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007), as amended (June 12, 2007) (citations omitted).
If the state court denies a claim on the merits, the federal court may grant habeas relief only if the adjudication: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law"; or (2) if the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedi...
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