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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
UZZIAH MURRAY,
Appellant No. 677 MDA 2014
Appeal from the Judgment of Sentence March 26, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000189-2013
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
CONCURRING MEMORANDUM BY BOWES, J.:FILED DECEMBER 18, 2014
I join the learned majority’s disposition of Appellant’s first two claims.
As to Appellant’s sentencing challenge, I am constrained to concur in the
result based on this Court’s recent decisions in Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), Commonwealth v.
Valentine, 2014 PA Super 220, and Commonwealth v. Fennell, 2014 PA
Super 261. I write further to note my disagreement with those decisions.
Preliminarily, I acknowledge that I myself, based on existing
precedent, have considered an Alleyne mandatory minimum sentencing
issue as presenting a potential legality of sentence question, although this
Court found the sentence therein to be legal. See Commonwealth v.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc).1 In Watley, we sua
sponte raised and rejected an Alleyne issue. We held that non-compliance
with Alleyne, which had not yet been decided at the time of Watley’s trial or
sentencing, was harmless and that the defendant’s sentence was not illegal.
There, the defendant was convicted by the jury of both possessing a firearm
illegally and possession with intent to deliver drugs. The firearm and drugs
were found together in the front passenger area of the car. The applicable
mandatory sentencing statute related to firearms being in close proximity to
drugs. Relying on United States Supreme Court precedent discussing
harmless error for Apprendi violations, see United States v. Cotton, 535
U.S. 625 (2002), we held that, because the facts necessary to determine the
mandatory sentence were undisputed, overwhelming, and decided by the
jury, no Alleyne error occurred. Compare also United States v. King,
751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation harmless); United
____________________________________________
1
The Pennsylvania Supreme Court has granted allowance of appeal to
determine whether an Alleyne issue presents a non-waivable illegal
sentencing question. Commonwealth v. Johnson, 93 A.3d 806 (Pa.
2014). In Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014),
this Court held that constitutional challenges based on equal protection and
ex post facto claims, relative to a mandatory minimum statute, did not
present non-waivable illegal sentencing questions. Furthermore, our
Supreme Court has declined to reach legality of sentence questions that
were not adequately briefed. Commonwealth v. Briggs, 12 A.3d 291, 344
(Pa. 2011) (declining to review Eighth Amendment and Article I, § 13 claims
due to inadequate briefing); see also Commonwealth v. Belak, 825 A.2d
1252, 1256 n.10 (Pa. 2003) (declining to address legality of sentence
question where issue was not included in petition for allowance of appeal or
original brief).
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States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v.
Mack, 729 F.3d 594, (6th Cir. 2013) (same).
Subsequently, in Commonwealth v. Munday, 78 A.3d 661
(Pa.Super. 2013), and Commonwealth v. Thompson, 93 A.3d 478
(Pa.Super. 2014), this Court concluded that an Alleyne claim was non-
waivable and meritorious where the jury did not decide the facts necessary
to impose the mandatory sentence. In Munday, Thompson, and Watley,
Alleyne had been decided after the defendants were sentenced.
In Newman, this Court found that because mandatory minimum
sentencing challenges ordinarily present illegal sentencing questions, and
that Apprendi v. New Jersey, 530 U.S. 466 (2000) issues have been held
to implicate the legality of a sentence, the Alleyne issue in that case was a
non-waivable illegal sentencing claim. Newman involved a case where the
defendant’s trial, sentencing and original appeal were decided prior to
Alleyne. However, shortly after the original panel decision in Newman, the
United States Supreme Court handed down Alleyne, and the defendant
successfully sought re-argument.
The Newman Court not only treated the Alleyne argument as an
illegal sentencing claim, but also reached an issue of severability that had
not been leveled below. Like Munday, and unlike Watley, the jury’s verdict
in Newman did not reveal that it found the facts needed to prompt the
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mandatory. As in Watley, the triggering facts for the mandatory sentence
related to whether a firearm was in close proximity to drugs.
Although recognizing that an Alleyne issue could be considered under
a harmless error analysis, the Newman Court found that the failure of the
jury to expressly determine whether the gun in that case was in close
proximity to drugs precluded a harmless error finding. Thus, Newman was
distinguishable from this Court’s other recent en banc decision in Watley.
The Newman majority further declined to remand for the empaneling of a
second sentencing jury, finding that such a procedure would violate the
separation of powers doctrine. In doing so, it ruled that the firearms
mandatory statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety
and not merely the section governing a court’s burden of proof. In short, it
held that the mandatory statute was not severable.
In Valentine, supra, this Court expanded Newman to prevent the
Commonwealth from submitting to the jury facts not included as an element
of the offense but set forth in the mandatory sentencing statutes. There, in
a post-Alleyne case, the Commonwealth amended its criminal information
to include whether the defendant visibly possessed a gun and the offense
occurred in or near a place of public transportation. Without objection, the
jury was presented with specific jury interrogatories as to those facts. The
jury found each fact beyond a reasonable doubt.
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While the defendant did not preserve at the trial level any Alleyne
challenge, despite Alleyne having been decided at the time of trial and
sentencing, (unlike Watley), the Valentine Court declared that the
defendant’s sentencing claim was not waivable based on Watley. It then
declined to follow Watley’s harmless error analysis in light of Newman and
ruled that Newman rendered both mandatory sentencing statutes in
question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional
in their entirety. Without addressing that the defendant’s jury trial rights
were not infringed under Alleyne and that the court could have otherwise
lawfully imposed the sentence in question, it remanded for resentencing. In
Fennell, supra, we concluded that a sentence under the same statute at
issue herein was illegal where the defendant stipulated to the weight of the
drugs involved.
Instantly, the trial court below, in my view, properly found the burden
of proof aspect of the applicable mandatory minimum statute severable. It is
long-standing law in this Commonwealth that, merely because a portion of a
statute is unconstitutional, the entire statute is not ipso facto
unconstitutional. See Rothermel v. Meyerle, 20 A. 583 (Pa. 1890). In
Rothermel, our High Court opined,
A statute may be void only so far as its provisions are repugnant
to the constitution: one provision may be void, and this will not
affect other provisions of the statute. If the part which is
unconstitutional in its operation, is independent of, and readily
separable from that which is constitutional, so that the latter
may stand by itself, as the reasonable and proper expression of
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the legislative will, it may be sustained as such; but, if the part
which is void is vital to the whole, or the other provisions are so
dependent upon it, and so connected with it, that it may be
presumed the legislature would not have passed one without the
other, the whole statute is void: Gibbons v. Ogden, 9 Wheat.
203; City of New York v. Miln, 11 Pet. 102; Packet Co. v.
Keokuk, 95 U.S. 80; Tiernan v. Rinker, 102 U.S. 123;
Presser v. Illinois, 116 U.S. 252; Lea v. Bumm, 83 Pa. 237;
In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413.
The constitutional and the unconstitutional provisions may even
be contained in the same section of the law, and yet be perfectly
distinct and separable, so that the former may stand though the
latter fall: the question is, whether the several provisions are
essentially and inseparably connected in substance:
Hagerstown v. Dechert, 32 Md. 369; 3 Amer. & Eng. Encyc.
of Law, 677, and cases there cited.
Rothermel, supra at 587-588. These principles hold true even where the
statute in question does not contain a severability provision. Rieck-
McKunkin Dairy Co. v. Milk Control Com., 18 A.2d 868 (Pa. 1941). Our
legislature codified this expression of American common law in 1 Pa.C.S.
§ 1925. That statute provides:
The provisions of every statute shall be severable. If any
provision of any statute or the application thereof to any person
or circumstance is held invalid, the remainder of the statute, and
the application of such provision to other persons or
circumstances, shall not be affected thereby, unless the court
finds that the valid provisions of the statute are so 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 void one; or unless the court finds that the
remaining valid provisions, standing alone, are incomplete and
incapable of being executed in accordance with the legislative
intent.
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1 Pa.C.S. § 1925; see also Stilp v. Commonwealth, 905 A.2d 918, 970-
971 (Pa. 2006) (discussing briefly the history of the severability doctrine).
Thus, there is a presumption that Pennsylvania legislation is severable.
“Severance is precluded only where, after the void provisions are excised,
the remainder of the statute is incapable of execution in accordance with
legislative intent.” Commonwealth v. Williams, 832 A.2d 962, 986 (Pa.
2003). Importantly, “Section 1925 funnels our inquiry to examining what
the enacting legislature would have done had it known that the [provision in
question] was unconstitutional.” Annenberg v. Commonwealth, 757 A.2d
338, 347 (Pa. 2000).
As our Supreme Court set forth in Stilp, “The test of severability may
be stated in simple terms as follows: After the invalid portion of the act has
been stricken out, whether that which remains is self-sustaining and is
capable of separate enforcement without regard to that portion of the
statute which has been cast aside. If this be true the statute should be
sustained to the extent of that which remains.” Stilp, supra at 972 n.38
(quoting Rutenberg v. City of Philadelphia, 196 A. 73, 79 (Pa. 1938)).
Reading 18 Pa.C.S. § 7508 without the burden of proof provision does
not render it wholly incapable of enforcement. The statute remains both
coherent and self-sustaining when read in conjunction with the constitutional
jury requirements articulated in Alleyne. For example, in Watley, it was
clear that the jury determined beyond a reasonable doubt the facts
necessary to impose the mandatory sentence. Hence, no jury trial right
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issues were involved, nor was the sentence unconstitutionally increased.
Similarly, in Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014),
the jury verdict included the facts needed to impose the mandatory
minimum sentence. Today, the legislature could readily reenact mandatory
minimum statutes absent the burden of proof provisions and without
specifying a new burden of proof procedure and there would be no
constitutional impediment to their enforcement.
In my view, the Newman Court asked the wrong question in
conducting its severability analysis. Specifically, it looked to whether the
General Assembly intended to have a jury decide the sentencing factors that
triggered the mandatory sentence. See id. at 102 (“the legislature also
intended those penalties to be imposed according to a very specific
procedure—the issue of firearm possession must be decided by the judge, at
sentencing, by a preponderance of the evidence.”). The proper query,
however, is what the legislature would have done had it known that a judge
could not decide such facts by a preponderance of the evidence standard.
See Annenberg, supra at 347; see also United States v. Booker, 543
U.S. 220, 246 (2005).
I simply cannot agree that the legislature would not have enacted a
statute to mandatorily increase punishment based on the sale of drugs of a
certain weight because a judge could not determine the facts by a
preponderance standard. Had the legislature known this burden of proof
was unconstitutional, it is more likely that it would have substituted the
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constitutional standard in its place. The overriding concern of the legislature
was to increase punishment for drug offenses and decrease judicial
sentencing discretion. The mandatory minimum statute did not exist for the
sole purpose of allowing judges to determine facts by a preponderance
standard. Where the purpose of a statute is “to accomplish several distinct
objects, and these can be severed, so that one may fall and the others
stand, only the part which infringes the constitution will be declared
invalid[.]” Thomas Raeburn White, Commentaries on the Constitution of
Pennsylvania, at 29 (1907) (collecting cases).
Therefore, I believe the procedure adopted by the trial court in
Valentine, which was ultimately rejected by this Court based on Newman,
was entirely proper. Submitting to the jury the facts essential to invoke the
mandatory is consistent with federal practice following the earlier Apprendi
v. New Jersey, 530 U.S. 466 (2000) decision, and provides an easy and
manageable constitutional method to follow. Further, I strongly disagree
that such procedures result in courts re-writing the mandatory statute. I
acknowledge that “a court is empowered merely to strike existing language;
the judiciary is given no authority to draft its own language and insert it into
the statute or ordinance.” Pap's A.M. v. City of Erie, 719 A.2d 273,
281 (Pa. 1998), reversed on other grounds sub nom. City of Erie v. Pap's
A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). However, to
the extent that Newman and the trial court opinions upon which it relied
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assert that such a procedure violates the separation of powers, I believe
they have misconstrued that doctrine.
The separation of powers doctrine provides that “the executive,
the legislature and the judiciary are independent, co-equal
branches of government.” Beckert v. Warren, 497 Pa. 137,
439 A.2d 638, 642 (Pa. 1981). The dividing lines among the
three branches “are sometimes indistinct and are probably
incapable of any precise definition.” Stander v. Kelly, 433 Pa.
406, 250 A.2d 474, 482 (Pa. 1969) (plurality). “Under the
principle of separation of the powers of government, . . . no
branch should exercise the functions exclusively committed to
another branch.” Sweeney v. Tucker, 473 Pa. 493, 375 A.2d
698, 706 (Pa. 1977).
Commonwealth v. Melvin, 2014 PA Super 181, *5.
It has been written that “[w]hen the legislative and executive powers
are united in the same person, or in the same body of magistrates, there
can be no liberty[.]” John Adams, A Defence of the Constitutions of
Government of the United States of America, Vol. I, at 153 (3rd Ed.
Philadelphia, 1797). Writing further, Adams eloquently set forth, “Again,
there is no liberty, if the power of judging be not separated from the
legislative and executive powers: were it joined with the legislative, the life
and liberty of the citizens would be exposed to arbitrary control[.]” Id. at
154.
However, the act of following Alleyne by requiring a jury to determine
the facts necessary to trigger a statutory mandatory sentence in no way is a
legislative act by either prosecutors or the courts. Instead, we are excising
the burden of proof section and enforcing the constitutional pronouncement
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of Alleyne. This is not legislating, but enforcing constitutional rights based
on existing binding precedent. Indeed, this procedure bears a strong
resemblance to our procedure pertaining to certain other criminal offenses.
For example, our theft statutes do not discuss a burden of proof, but the
amount of money stolen aggravates the crime. The jury must therefore
determine the amount taken in rendering its verdict. We do not require the
statute to delineate that the jury must unanimously determine these facts
beyond a reasonable doubt. This is merely presumed based on
constitutional law. Admittedly, in these situations the elements are included
in the underlying offense, but, as the United States Supreme Court has
repeatedly opined, it matters not what label a fact is given, whether it be an
element or sentencing factor. See Apprendi, supra; Booker, supra at
242; Alleyne, supra.
To engraft on a statute a “beyond a reasonable doubt burden of proof”
based on a United States Supreme Court decision is no more legislating than
requiring the Commonwealth to prove the age of a victim or the amount of
money stolen beyond a reasonable doubt. The proper question, as
mentioned earlier, is: had the legislature known when it passed the
mandatory sentencing provision that the burden of proof provision was void,
how would it have exercised its power to define sentencing practices? Cf.
Annenberg, supra at 347 (rejecting contention that Supreme Court’s
severing of a statute would violate the separation of powers by arrogating to
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itself the power to tax and stating, “When this Court severs a void provision
from a statute, it is doing so to attempt to effectuate legislative intent. We
are therefore not arrogating to ourselves the power to tax but rather are
attempting to determine how the legislature would have exercised its taxing
power had it known, in 1889, that the exclusion was void.”).
Pointedly, certain Pennsylvania mandatory statutes, as applied, are
unaffected by Alleyne despite their burden of proof provisions running afoul
of that decision. For example, 42 Pa.C.S. § 9718 applies mandatory
sentences based on the youth of the victim. In certain instances, however,
the age of the victim is already included as an element of the crime,
specifically with regard to various sex offenses. In those situations, there
should be no impediment to sentencing the defendant under the mandatory
sentence. See Matteson, supra.
Further, I add that 42 Pa.C.S. § 9717, a mandatory minimum statute,
which applies to crimes committed against the elderly, includes no burden of
proof provision. Relying on the no longer constitutionally-sound decision in
McMillan v. Pennsylvania, 477 U.S. 79 (1986), this Court applied a
preponderance of the evidence standard at sentencing. Commonwealth v.
Rizzo, 523 A.2d 809 (Pa.Super. 1987). Based on the decision in Alleyne,
that holding is invalid and the Alleyne decision provides the proper mode
for imposing that mandatory minimum sentence. The entire Crimes Code is
devoid of providing a burden of proof for any element of a crime. Rather, no
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such burden of proof is required to be delineated based on well-ensconced
constitutional principles. Consistent with Judge Mundy’s view in her
concurring opinion in Newman, I believe that “pre-existing procedures and
Alleyne specify that the burden of proof shall be beyond a reasonable doubt
and it shall be submitted to the jury.” Newman, supra at 106 (Mundy, J.,
concurring).
In this respect, the trial court opinions relied on by the Newman
Court are similarly unpersuasive and misplaced precisely because the default
method of resolving disputed questions of fact is for the jury, even absent a
legislative directive. Frankly, the United States Supreme Court has judicially
directed the manner in which mandatory minimum sentences are to be
decided: via a jury determination of the facts included in those mandatory
sentences.
Our United States Supreme Court’s decision in Booker is illustrative.
Booker involved an Apprendi challenge to the federal sentencing guidelines
and resulted in two separate majority opinions. The first majority opinion
declared that the then-mandatory federal sentencing guidelines were
unconstitutional to the extent they permitted a judge to increase a
defendant’s maximum sentence based on facts the court decided by a
preponderance of the evidence. The second majority opinion (hereinafter
the “remedial opinion”) concluded that the proper remedy was not to strike
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the guidelines in their entirety, but to sever those provisions that made the
guidelines mandatory.
Therein, Booker was charged with possession with intent to distribute
fifty grams of crack cocaine. The jury heard evidence that he had 92.5
grams of crack cocaine when arrested. At sentencing, however, the judge
determined that Booker possessed an additional 566 grams of crack cocaine.
This finding resulted in an almost ten-year increase in the sentence Booker
would have received under the guidelines based solely on the jury verdict.
Consistent with its earlier Apprendi and Blakely v. Washington, 542 U.S.
296 (2004) decisions, the United States Supreme Court concluded that
Booker’s jury trial rights were infringed and that “any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, supra at 244.
In doing so, the Court rejected the government’s position that
requiring a jury to determine the sentencing factors beyond a reasonable
doubt would violate the separation of powers doctrine by unconstitutionally
granting the Federal Sentencing Commission, which promulgated the
guidelines, the legislative power to define criminal elements. The Court
maintained that the argument was without merit because “the impact of
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such facts on federal sentences is precisely the same whether one labels
such facts ‘sentencing factors’ or ‘elements’ of crimes.” Id. at 242.
The remedial opinion in Booker severed the provisions of the Act in
question that made it mandatory. The remedial justices maintained that the
Act, as written, with jury fact-finding added, was preferable to total
invalidation of the statute, but that the legislature would have preferred its
proffered remedy. In creating its remedy, the remedial majority opined,
“We seek to determine what ‘Congress would have intended’ in light of the
Court’s constitutional holding.” Id. at 246. This statement is wholly
consistent with the Pennsylvania Supreme Court’s approach in Annenberg,
supra, and with long-standing severability jurisprudence.
The remedial Booker opinion observed that requiring juries to
determine the facts necessary to impose the increased guideline sentences
“would create a system far more complex than Congress could have
intended.” Id. at 254. Accordingly, it chose to make the mandatory
guidelines advisory only. The dissenting opinions from that remedial
opinion, however, cogently recognized that the remedial majority was not
excising unconstitutional provisions of the law in question.
As in the federal system, the vast majority of criminal proceedings are
the result of plea bargains. Where a defendant admits to the facts needed
to trigger a mandatory sentence, there are no constitutional problems. As
Justice Stevens pointed out in his dissent to the remedial Booker opinion, in
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the event that a trial occurs, “prosecutors could avoid an
Apprendi . . . problem simply by alleging in the indictment the facts
necessary to reach the chosen Guidelines sentence.” Booker, supra at 277
(Stevens, J., dissenting). Instantly, absent the holdings in Newman and
Valentine, prosecutors could avoid Alleyne issues by including in the
criminal information the facts required to reach the mandatory sentence at
issue. In this regard, Justice Stevens noted at that time that the
Department of Justice was advising federal prosecutors to charge and prove
facts that increased statutory maximums for drug types and quantities. He
accurately recognized that “[e]nhancing the specificity of indictments would
be a simple matter[.]” Id. In Pennsylvania, the same result could be
achieved by prosecutors and judges following the procedure that occurred
and was reversed in Valentine, that is, including the facts in the criminal
information and submitting the question to the jury.
Rather than engage in a wholesale striking down of our mandatory
sentencing statutes, I would allow prosecutors to prove any fact required to
subject the defendant to a mandatory sentence to the jury beyond a
reasonable doubt. Indeed, this procedure has been adopted by the
Commonwealth regarding Apprendi issues, see Commonwealth v.
Mobley, 14 A.3d 887 (Pa.Super. 2011), and has never been held to violate
the separation of powers doctrine. In the event that the defendant elects to
proceed non-jury, the trial judge would be charged with finding the essential
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facts beyond a reasonable doubt. Furthermore, where the fact-finder’s
findings already encompass the necessary facts needed to subject a
defendant to a mandatory minimum sentence, or the facts have been
stipulated too, I would find any non-compliance with Alleyne to be
harmless. See Watley, supra; Matteson, supra.
I believe the Newman Court and the trial court opinions it discussed
misperceived the legislative intent analysis pertaining to the severability
doctrine and did not consider what the legislature would have intended had
it known that the burden of proof provisions of its mandatory statutes were
unconstitutional. However, because Newman is binding on this panel, as is
Valentine, I am constrained to concur in the result.
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