J-E01002-14
2014 PA Super 178
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES NEWMAN
Appellant No. 1980 EDA 2012
Appeal from the Judgment of Sentence June 13, 2012
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000068-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
and OLSON, J.
CONCURRING OPINION BY MUNDY, J.: FILED AUGUST 20, 2014
I join the Majority insofar that it decides that an issue under Alleyne
v. United States, 133 S. Ct. 2151 (2013), pertains to the legality of the
sentence and may be raised sua sponte. I further agree that given Alleyne
Commonwealth v. Hanson, 82 A.3d
1023 (Pa. 2013), the error in this case was not harmless and resentencing is
request for a remand to empanel a second sentencing jury. However, I part
company with the Majority in its treatment of Section 9712.1 in that it
declares the entire statute unconstitutional in light of Alleyne. Therefore, I
respectfully concur in the result.
J-E01002-14
As the Majority aptly notes, the Statutory Construction Act addresses
severability. See 1 Pa.C.S.A. § 1925. Our Supreme Court recently held that
creates the presumption that the provisions of every statute
Robinson Twp., Washington Cnty. v. Commonwealth,
83 A.3d 901, 988 (Pa. 2013) (plurality). Alleyne is an extension of the line
of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Alleyne facts that increase mandatory minimum
doubt. Alleyne, supra at 2163. As the Majority itself concludes, these
me and
the fact triggering the mandatory minimum sentence together constitute a
new, aggravated crime, each element of which must be submitted to the
Id. at 2161.
In Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en
banc), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014), this Court
confronted another application of Section 9712.1 after Alleyne was decided.
evidence in the instant case established that one firearm was located in the
same glove compartment as the drugs and another handgun was located on
the passenger- Id. at 121.
However, before arriving at that conclusion, the Watley Court took a survey
of Alleyne and its effect on mandatory minimum statutes in this
-2-
J-E01002-14
Commonwealth. Specifically, Watley noted that only Section 9712.1(c) is
unconstitutional in light of Alleyne.
The Alleyne
mandatory minimum sentencing statutes that do not
pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically
preponderance of the evidence standard.4
4
See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.
§ 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.
§ 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.
§ 7508(b); 18 Pa.C.S. § 6317(b).
Id. at 117 (emphasis added; other footnote omitted). However, in the case
sub judice, the Majority goes against Watley, and in my view beyond
Alleyne, and strikes all of Section 9712.1.1 The Majority concludes that the
Opinion at 28. I cannot agree.
Applying Alleyne to this case, the effect is to combine the PWID
conviction in this case, along with the element at Section 9712.1(a), to
____________________________________________
1
Watley is
mere dicta. See Majority Opinion at 27 n.9. The statement of Alleyne
effect on mandatory minimum sentencing statutes in Pennsylvania is
essential to the judgment of the Watley Court, because if Section 9712.1
to be vacated as there would be no statutory authorization for his mandatory
minimum sentence. See, e.g., Commonwealth v. Hopkins, 67 A.3d 817,
particular sentence, that sentence is illega
appeal denied, 78 A.3d 1090 (Pa. 2013).
-3-
J-E01002-14
Id. Although this is a new aggravated
future cases. Id. To the contrary, Alleyne has already specified the
mechanism for such an application. The jury should be instructed on the
elements of the core crime, in this case PWID, and the aggravated offense,
and the factfinder is free to find a defendant guilty or not guilty of the core
and/or the aggravated offense beyond a reasonable doubt as required by the
Sixth Amendment. Thereafter, the trial court shall sentence the defendant
See generally
offenses
contained within the Crimes Code, Motor Vehicle Code, and the Controlled
Substance, Drug, Device and Cosmetic Act do not generally specify any
mechanism for how the elements of those offenses shall be found. In my
view, there is no practical reason why the same process for a new
aggravated offense cannot be followed.2 Section 9712.1(a) gives the
____________________________________________
2
I certainly agree the General Assembly is free to legislatively repeal
Section 9712.1 altogether if it wished to do so, or move the same to the
Crimes Code or the Controlled Substance, Drug, Device and Cosmetic Act.
However, I do not think it is entirely clear that the General Assembly would
aggravated offenses under Apprendi and Alleyne. It is axiomatic that our
Constitution bestows upon our Supreme Court, not the General Assembly,
(Footnote Continued Next Page)
-4-
J-E01002-14
elements of the aggravated offense and Alleyne and pre-existing procedure
provides the method for implementation, a jury verdict with proof beyond a
reasonable doubt. Therefore, no special mechanism is required.
Neither the Federal nor the Pennsylvania Constitution prohibits the
General Assembly from enacting mandatory minimum sentences, or as
Alleyne states, aggravated offenses. Alleyne merely requires that the
element for said offense be submitted to the jury and found beyond a
reasonable doubt. Because Section 9712.1(c) states the contrary, it cannot
be constitutionally applied going forward, as this Court noted in Watley.
However, by voiding all of Section 9712.1, including Subsection (a) which
authorizes the offense, the Majority unnecessarily deprives the General
PWID alone.
The Majority further argues that all of Section 9712.1 must be stricken
Construction Act imposes a higher burden to overcome the presumption of
severa so
_______________________
(Footnote Continued)
the exclusive power to engage in rulemaking for our courts. See generally
[t]he Supreme Court shall have the
power to prescribe general rules governing practice, procedure and the
-5-
J-E01002-14
essentially and inseparably connected with, and so depend upon, the void
provision or application, that it cannot be presumed the General
Assembly would have enacted the remaining valid provisions without the
Alleyne purposes,
merely states the burden of proof and that it shall be found by the
sentencing judge.3 Id. As I have described above, pre-existing procedure
and Alleyne specify that the burden of proof shall be beyond a reasonable
doubt and it shall be submitted to the jury. Subsection (a), which only gives
the element for the aggravated offense, can therefore be severed from the
now-unconstitutional burden of proof at Subsection (c). However, even if I
could agree with the Majority that Subsections (a) and (c) could be
connected, I cannot conclude that the General Assembly would want those
it can be found by a judge by a preponderance, but not if the element is to
be found by a jury beyond a reasonable doubt. Therefore, in my view,
____________________________________________
3
9712.1 unconstitutional, his argument as to Alleyne limits itself to the
42 Pa.C.S. § 9712.1(c) is contrary
Alleyne
(emphasis in original).
-6-
J-E01002-14
9712.1 in its entirety is contrary to the Statutory Construction Act, Watley,
and beyond the scope of Alleyne
only Section 9712.1(c) is unconstitutional consistent with Alleyne and
Watley. Accordingly, I respectfully concur in the result only.
-7-