Commonwealth, Aplt. v. Hopkins, K.

[J-78-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 98 MAP 2013
:
Appellant : Appeal from the Order of the Chester
: County Court of Common Pleas, Criminal
: Division, dated December 17, 2013 at No.
v. : CP-15-CR-0001260-2013
:
:
KYLE JOSEPH HOPKINS, :
: ARGUED: September 10, 2014
Appellee :

OPINION

MADAME JUSTICE TODD DECIDED: June 15, 2015
In this direct appeal, we address questions regarding the constitutionality and

severability of 18 Pa.C.S. § 6317(a) — which imposes a mandatory minimum sentence

of two years total confinement upon a defendant for a conviction if a delivery or

possession with intent to deliver a controlled substance occurs within 1,000 feet of, inter

alia, a school — in light of the United States Supreme Court’s decision in Alleyne v.

United States, 133 S. Ct. 2151 (2013). In that decision, the United States Supreme

Court held that, under the Sixth Amendment to the United States Constitution, a jury

must find beyond a reasonable doubt any facts that increase a mandatory minimum

sentence. In the matter sub judice, the Commonwealth concedes that certain

provisions of Section 6317 are unconstitutional in the wake of Alleyne. Nevertheless,

the Commonwealth submits that those provisions are severable, and, thus, the statute

is capable of application once the violative provisions are excised. While we do not
question the legislature’s wisdom or the necessity of severe penalties for those dealing

in illegal drugs near our Commonwealth’s schools, for the reasons that follow, we are

constrained to conclude that the United States Supreme Court’s decision in Alleyne

renders Section 6317 unconstitutional and, further, that, in light of clear legislative

intent, severance of the violative provisions from the statute is not permissible. Thus,

we affirm the judgment of the trial court, which held Section 6317 to be unconstitutional

and that its violative provisions were not severable.

The factual and procedural background of this matter is as follows. On March

27, 2013, the Pennsylvania State Police filed a criminal complaint against Appellee Kyle

Hopkins charging him with various violations of the Controlled Substance, Drug, Device

and Cosmetic Act, 35 P.S. §§ 780-101 et seq. The charges arose from three incidents,

which took place over three days in April 2012, during which Appellee sold heroin to a

confidential informant in Kennett Square Borough and New Garden Township, Chester

County, Pennsylvania. One sale allegedly occurred in a school zone. Appellee was

held for court on all charges, which included three counts of Possession with Intent to

Deliver a Controlled Substance, 35 P.S. § 780-113(a)(30); three counts of Criminal Use

of a Communication Facility, 18 Pa.C.S. § 7512(a); three counts of Possession of a

Controlled Substance, 35 P.S. § 780-113(a)(16); and three counts of Possession of

Drug Paraphernalia, 35 P.S. § 780-113(a)(32). Approximately two weeks later, the

Chester County District Attorney’s office filed a criminal information charging Appellee

with the 12 counts noted above.

Anticipating the Commonwealth would seek the mandatory minimum sentence

pursuant to 18 Pa.C.S. § 6317, on October 31, 2013, Appellee filed a Motion for

Extraordinary Relief contending Section 6317 was unconstitutional. Judge David

Bortner of the Court of Common Pleas of Chester County held a hearing on November

[J-78-2014] - 2
14, 2013. Five days later, the Commonwealth filed an amended criminal information to

include notice that the Commonwealth sought the mandatory minimum sentence

required by Section 6317. The trial court, however, granted Appellee’s motion on

December 17, 2013, declaring Section 6317 to be unconstitutional in its entirety.

The trial court reasoned that it was bound by the United States Supreme Court’s

decision in Alleyne, which held that facts which increase the mandatory minimum

sentence are an element of the offense which must be submitted to the jury and found

beyond a reasonable doubt. The court opined that Section 6317(b) placed facts

determining the applicability of the mandatory minimum sentence in the hands of the

sentencing court and that such determination was based upon the preponderance of the

evidence in violation of Alleyne. Trial Court Order, 12/17/13, at 1 n.1. The court also

rejected the Commonwealth’s suggestion that the Alleyne defect could be cured by

adding a special interrogatory to the verdict slip. Id. Six days later, the Commonwealth

filed a notice of appeal to our Court.1

Before our Court, the Commonwealth raises the following issue for our review:

Whether the trial court erred in concluding that 18 Pa.C.S.A. § 6317, titled,
“Drug-Free School Zones”, is unconstitutional in its entirety, based upon
Alleyne v. United States, where those provisions of § 6317 that do not
comply with Alleyne are clearly severable from the remainder of the
statute?
Commonwealth’s Brief at 5.

1
Our Court has exclusive jurisdiction over appeals from final orders of the courts of
common pleas holding a statute unconstitutional. 42 Pa.C.S. § 722(7) (“The Supreme
Court shall have exclusive jurisdiction of appeals from final orders of the courts of
common pleas in . . . [m]atters where the court of common pleas has held invalid as
repugnant to the Constitution, treaties or laws of the United States, or to the Constitution
of this Commonwealth, any treaty or law of the United States or any provision of the
Constitution of, or of any statute of, this Commonwealth, or any provision of any home
rule charter.”).

[J-78-2014] - 3
 Before considering the arguments of the parties, we set forth a brief background

of the law informing this appeal. As discussed more fully below, in 2013, the United

States Supreme Court rendered its decision in Alleyne, in which it held that any fact

which increases a mandatory minimum sentence is an “element” of the crime, and not a

“sentencing factor,” and, thus, must be submitted to the jury pursuant to the Sixth

Amendment to the United States Constitution.

The focus of the Alleyne challenge in this appeal is Section 6317 of the Crimes

Code, entitled “Drug-free school zones” — a statutory provision first enacted in 1997,

which sets forth a mandatory minimum sentence of two years total confinement if

delivery of, or possession with intent to deliver, a controlled substance occurs within

1,000 feet of a school, college, or playground. Section 6317 states in full:

(a) General rule.—A person 18 years of age or older who is
convicted in any court of this Commonwealth of a violation of section
13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as
The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the
delivery or possession with intent to deliver of the controlled substance
occurred within 1,000 feet of the real property on which is located a public,
private or parochial school or a college or university or within 250 feet of
the real property on which is located a recreation center or playground or
on a school bus, be sentenced to a minimum sentence of at least two
years of total confinement, notwithstanding any other provision of this title,
The Controlled Substance, Drug, Device and Cosmetic Act or other
statute to the contrary. The maximum term of imprisonment shall be four
years for any offense:
(1) subject to this section; and
(2) for which The Controlled Substance, Drug, Device and
Cosmetic Act provides for a maximum term of imprisonment of less than
four years.
If the sentencing court finds that the delivery or possession with
intent to deliver was to an individual under 18 years of age, then this
section shall not be applicable and the offense shall be subject to section
6314 (relating to sentencing and penalties for trafficking drugs to minors).
(b) Proof at sentencing.—The provisions of this section shall not
be an element of the crime. Notice of the applicability of this section to the
defendant shall not be required prior to conviction, but reasonable notice
of the Commonwealth’s intention to proceed under this section shall be
provided after conviction and before sentencing. The applicability of this

[J-78-2014] - 4
 section shall be determined at sentencing. The court shall consider
evidence presented at trial, shall afford the Commonwealth and the
defendant an opportunity to present necessary additional evidence and
shall determine by a preponderance of the evidence if this section is
applicable.
(c) Authority of court in sentencing.—There shall be no authority
for a court to impose on a defendant to which this section is applicable a
lesser sentence than provided for in subsection (a), to place the defendant
on probation or to suspend sentence. Nothing in this section shall prevent
the sentencing court from imposing a sentence greater than that provided
in this section. Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing shall not supersede the mandatory sentences
provided in this section. Disposition under section 17 or 18 of The
Controlled Substance, Drug, Device and Cosmetic Act shall not be
available to a defendant to which this section applies.
(d) Appeal by Commonwealth.—If a sentencing court refuses to
apply this section where applicable, the Commonwealth shall have the
right to appellate review of the action of the sentencing court. The
appellate court shall vacate the sentence and remand the case to the
sentencing court for imposition of a sentence in accordance with this
section if it finds that the sentence was imposed in violation of this section.
18 Pa.C.S. § 6317.

While the present challenge is to the constitutionality of Section 6317, it is

axiomatic that, even if certain provisions of a statute are deemed to run afoul of the

federal or state Constitution, portions of the statute which are not so offensive may

retain their viability through judicial severing of those sections from the sections that are

unconstitutional. The General Assembly has expressed its intent with respect to the

constitutional construction of statutes, and specifically severability, in Section 1925 of

the Statutory Construction Act. 1 Pa.C.S. § 1925. Section 1925 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,

[J-78-2014] - 5
 are incomplete and are incapable of being executed in accordance with
the legislative intent.
1 Pa.C.S. § 1925. With this legal background in mind, we turn to the arguments of the

parties.

The Commonwealth first traces the evolution of the United States Supreme

Court’s case law regarding the constitutional necessity that a jury must consider any

fact which increases the penalty for a crime. Offering the presumption that legislative

enactments are constitutional, and that a statute will be found to be unconstitutional only

if it clearly, palpably, and plainly violates the Constitution, the Commonwealth

nevertheless concedes that Alleyne impacts Section 6317’s proof at sentencing

provision. In sum, the Commonwealth divides Section 6317’s provisions into two

categories — procedural and substantive — and contends that Alleyne calls into

question only the procedural aspects of the statute. Thus, the Commonwealth’s core

position is not that, when held up against the mandate of Alleyne, the statute is

constitutional in toto, but, rather, as only certain limited procedural provisions of the

legislation run afoul of Alleyne, Section 6317 is severable and the substantive

provisions remain viable.

The Commonwealth, noting public policy favors severability, points to the

Statutory Construction Act, which offers the presumption of severability, unless either

(1) 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 (2) the “remaining valid provisions, standing alone, are incomplete and are

incapable of being executed” in accordance with the intent of the legislature. 1 Pa.C.S.

§ 1925. Building on this provision, the Commonwealth reasons that, with the removal of

[J-78-2014] - 6
the “fact finding provisions” from the statute, the remaining valid provisions, standing

alone, are complete and capable of being executed consistent with legislative intent.

Specifically, the Commonwealth suggests that subsection (b) of the statute and

the proviso in subsection (a) — “the sentencing court finds that” — which places fact

finding in the hands of the sentencing court are all that need to be severed from the

statute to render it constitutional under Alleyne. The Commonwealth maintains,

consistent with the presumption in favor of severability, that this minor excising of the

procedural provisions allows the remaining substantive provisions to be capable of

execution in accordance with legislative intent. Related thereto, the Commonwealth

claims that to find a lack of severability would be to assume that the General Assembly

would not have passed the mandatory minimum sentencing if it knew juries would

determine operative facts, and stresses that the laudable goal of the statute was to

protect the children in our communities from the evils of the illegal drug trade.

In further support of its severability argument, the Commonwealth urges that

special or specific verdicts, which would be required to satisfy Alleyne, should not be

rejected by our Court, as disapproving comments concerning special verdicts are either

dicta, citing Commonwealth v. Samuel, 961 A.2d 57, 63-64 (Pa. 2008), or contained in

plurality decisions, citing Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012). The

Commonwealth adds that the Pennsylvania Criminal Procedural Rules Committee has

made proposals to standardize the practice of special verdicts in light of Alleyne, by

suggesting amending Pa.R.Crim.P. 648 to allow for special verdicts. Commonwealth’s

Brief at 33-38 (citing Pennsylvania Bulletin, Volume 43, Number 44, November 2, 2013,

at 6490-92). Thus, the Commonwealth concludes that the trial court erred in finding

Section 6317 unconstitutional in its entirety, and contends that those provisions of the

statute that do not comply with Alleyne are severable from the remainder of the statute.

[J-78-2014] - 7
 Appellee responds that Section 6317 is triggered by a factual determination that

the drug-related offense was committed within 1,000 feet of a school. Appellee explains

that, under Alleyne, proof of the fact which brings about a mandatory minimum sentence

must now be considered an “element of a distinct and aggravated crime,” for which an

accused has the right of a jury trial, application of the standard of proof beyond a

reasonable doubt, as well as other protections. Appellee’s Brief at 7 (citing Alleyne, 133

S. Ct. at 2162-63). Appellee further contends that, as this determination is now an

element of the offense, an accused is entitled to a specific legal and factual allegation

both in the complaint and in the information or indictment whenever the Commonwealth

seeks a mandatory minimum sentence under Section 6317. According to Appellee,

however, the legislature unambiguously provided in Section 6317 that this factual

determination was not to be treated as an element of the crime and was to be

determined at sentencing.

More specifically, Appellee maintains severability is not permissible as the

remaining statutory provisions standing alone are incomplete and incapable of being

executed in accordance with legislative intent. Appellee’s Brief at 14-15 (citing 1

Pa.C.S. § 1925). Appellee points to six ways in which the provisions of Section 6317

are unconstitutional:
(1) “The provisions N shall not be an element of the crime.” Subsection
(b);
(2) “Notice of the applicability of this section shall not be required prior to
conviction.” Subsection (b);
(3) “The applicability of this section shall be determined at sentencing.”
Subsection (b);
(4) “The [sentencing] court N shall determine N if this section is
applicable.” Subsection (b);
(5) “The court N shall determine by a preponderance of the evidence if
this section is applicable.” Subsection (b);

[J-78-2014] - 8
 (6) “If a sentencing court refuses to apply this section where applicable,
the Commonwealth shall have the right to appellate review of the
actions of the sentencing court. The appellate court shall vacate the
sentence and remand the case to the sentencing court for imposition
of a sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.” Subsection (d).
Id. at 9-10.

Thus, Appellee submits that, if the mandatory minimum is executed in accord

with legislative intent, it would violate notice, burden of proof, jury trial, and double

jeopardy protections afforded by the Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution. Related thereto, Appellee stresses that our Court should not

supplement or rewrite statutes, as the legislative power of the Commonwealth is vested

in the General Assembly, Pa. Const. art. II, § I, not in the judiciary, and the only way

Section 6317 could be cured of its constitutional deficiencies under Alleyne would be if

our Court substituted provisions to effectuate the statute, which would be contrary to the

plain expressions of the General Assembly.

Appellee develops that the remaining, non-violative provisions of Section 6317

merely offer an intent on the part of the legislature to have a mandatory minimum of two

years for drug offenders who commit their crimes near schools, while all of the

procedural provisions for executing the statute are unconstitutional, and, thus, the

substantive provisions “are incomplete and incapable of being executed in accordance

with legislative intent.” Appellee’s Brief at 14-15 (quoting 1 Pa.C.S. § 1925). Similarly,

Appellee rejects the Commonwealth’s suggestion that the use of special verdicts could

cure the constitutional defects in the statute, as our Court in Samuel rejected a request

for mandatory minimum special verdicts. See Samuel, 961 A.2d at 64 (“The proposal of

special verdicts in criminal trials to determine what issues the jury actually resolved has

been almost universally condemned.”). Moreover, Appellee offers that, in any event,

[J-78-2014] - 9
even with the use of special verdicts, the notice and appeal provisions, as noted above,

are also unconstitutional, and would not be cured by special verdicts.

Finally, Appellee argues that severability fails under Section 1925 of the Statutory

Construction Act, and, specifically, under its alternative basis 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 valid one.” Appellee’s

Brief at 20-21 (quoting 1 Pa.C.S. § 1925). According to Appellee, it cannot be

presumed that the legislature would have enacted a mandatory minimum sentencing

provision to protect children from drug offenses committed near schools if it was forced,

as it is under Alleyne, to treat the factual determination as an element of the offense, as

evinced by the low standard of proof on the Commonwealth to establish the necessary

factual predicate post-conviction — preponderance of the evidence. Appellee posits

that, given a choice of a mandatory minimum post-conviction sentencing statute being

transformed into an aggravated criminal offense, with the full panoply of pre-trial

(specific notice in charging document), trial (proof beyond a reasonable doubt and a

jury), and post-trial (double jeopardy) protections, the legislature may have opted for

sentencing guidelines as adequate and preferable for enhancing sentences for drug

offenses committed near schools. Thus, ultimately, Appellee urges our Court to

conclude that the unconstitutional mandatory minimum sentence statute is not

severable.

Amicus Defender Association of Philadelphia, in support of Appellee, also sets

forth various provisions of Section 6317 that it believes are violative of Alleyne. It

elaborates that Section 6317(b) is unconstitutional as it permits the finder of fact, in

determining the applicability of the mandatory minimum sentence, to “consider evidence

[J-78-2014] - 10
presented at trial, [and] shall afford the Commonwealth and the defendant an

opportunity to present additional evidence.” Amicus’ Brief at 12-13, 18-19. According to

Amicus, as Alleyne instructs that Section 6317 deals with an aggravated crime,

evidence of the crime must be presented at trial and not after, and, therefore, as Section

6317 provides for consideration of evidence after trial, it is violative of Alleyne on this

basis as well.

Our review of the constitutionality and severability of a statute raises pure

questions of law; thus, our standard of review is de novo and our scope of review is

plenary. In Interest of F.C. III, 2 A.3d 1201, 1213 n.8 (Pa. 2010). Further, statutes enjoy

a presumption of constitutionality, and such enactments will not be struck unless they

clearly, plainly, and palpably violate the Constitution. Commonwealth v. Omar, 981

A.2d 179, 185 (Pa. 2009). With our standard and scope of review in hand, we turn to

resolution of the issues before us.

The Sixth Amendment of the United States Constitution provides that an accused

has the right to trial by an impartial jury. U.S. Const. amend. VI. The Constitution

mandates that a criminal conviction must "rest upon a jury determination that the

defendant is guilty of every element of the crime" in question beyond a reasonable

doubt. United States v. Gaudin, 515 U.S. 506, 510 (1995). Since the United States

Supreme Court’s decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), however,

judges have been able to find "sentencing factors" at post-conviction hearings without

running afoul of the jury-trial guarantee. Id. at 81, 85-86, 93. Thus, legislatures were

able to differentiate between elements of a crime and sentencing factors in drafting

criminal codes. In McMillan, the Court found that a fact was not an element of the

offense simply because it created or increased a mandatory minimum sentence, and,

thus, that Pennsylvania did not violate the Constitution with its imposition of mandatory

[J-78-2014] - 11
minimum sentences based upon a trial court’s determination, by a preponderance of the

evidence, that various defendants “visibly possessed a firearm” while committing certain

felonies. McMillan, 477 U.S. at 80-93.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), however, the United States

Supreme Court held that any fact that increases a defendant's sentence "beyond the

prescribed statutory maximum" is an element for the jury, regardless of the legislature's

designation. Apprendi, 530 U.S. at 490. While Apprendi spoke to increasing a statutory

maximum sentence, two years later in Harris v. United States, 536 U.S. 545 (2002), a

sharply divided high Court reaffirmed McMillan's conclusion that a fact that increases

only a mandatory minimum sentence still constitutes a sentencing factor, and, thus, was

not mandated to be determined by a jury.

Eleven years later, however, in Alleyne, the Supreme Court overruled Harris and

McMillan, reasoning that "Apprendi applies with equal force to facts increasing [a]

mandatory minimum.” Alleyne, 133 S. Ct. at 2160, 2163. In that case, Allen Ryan

Alleyne was charged with various federal crimes including “using or carrying a firearm in

relation to a crime of violence” in violation of 18 U.S.C. § 924. That crime carried a five-

year minimum sentence if it was found that the defendant “used” a firearm in the

commission of the crime, but a seven-year minimum sentence if the defendant was

found to have “brandished” the firearm in the course of the crime. The jury determined

that Alleyne used the firearm, but did not indicate whether he brandished the firearm in

the commission of the crime. The district judge concluded, consistent with Harris, that

he could employ a preponderance of the evidence standard and found the weapon had

been brandished. Thus, the judge sentenced Alleyne to a seven-year mandatory

minimum sentence of imprisonment. The Fourth Circuit Court of Appeals affirmed.

[J-78-2014] - 12
 On appeal, in an opinion authored by Justice Clarence Thomas, the high Court

reasoned that, under the Sixth Amendment, “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.” Alleyne, 133 S. Ct. at 2155. A mandatory minimum sentence

increases the penalty for a crime, and, thus, the Court held that “any fact that increases

the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id. As the

judge in Alleyne found “brandishing” by a preponderance of the evidence, which

increased the penalty to which Alleyne was subjected, and as such fact was an element

which had to be determined by the jury beyond a reasonable doubt, the Court vacated

and remanded the matter for resentencing consistent with the jury’s verdict. Id. at 2163-

64.

In arriving at this conclusion, the Court overruled Harris and McMillan, finding the

“distinction between facts that increase the statutory maximum and the facts that

increase only the mandatory minimum” was untenable in light of the Court’s earlier

decision in Apprendi and the Sixth Amendment. Alleyne, 133 S. Ct. at 2155. The Court

offered that the “facts increasing the legally prescribed floor aggravate the punishment,”

and, therefore, “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.” Id. at 2161 (emphasis original); id. at 2162 (“[w]hen a finding of fact alters

the legally prescribed punishment so as to aggravate it, the fact necessarily forms a

constituent part of a new offense and must be submitted to the jury.”). The Court further

opined, with respect to concepts of notice, that “[d]efining facts that increase a

mandatory statutory minimum to be part of the substantive offense enables the

defendant to predict the legally applicable penalty from the face of the indictment” and

[J-78-2014] - 13
“preserves the historic role of the jury as an intermediary between the State and criminal

defendants.” Id. at 2161.

Thus, in Alleyne, the United States Supreme Court extended its Apprendi line of

cases, overturned its prior decisions in Harris and McMillan, and concluded that, when a

factual determination is necessary for the imposition of a mandatory minimum sentence,

the facts must be considered an element of a new, distinct aggravated offense. Alleyne,

133 S. Ct. at 2161-63. Moreover, as an element of the offense, the factual

determination must be specifically alleged in the charging document, and the defendant

has a right to have that fact determined by a jury beyond a reasonable doubt. Id. at

2160-61. The Court, however, drew an important contrast between facts triggering a

sentencing minimum and those used in applying sentencing guidelines, emphasizing

what the Constitution did not require. The Court stressed that factfinding which

increases a statutory minimum “is distinct from factfinding used to guide judicial

discretion in selecting a punishment ‘within limits fixed by law.’” Id. at 2161 n.2. Thus,

the high Court clarified that its decision did not impact “the broad discretion of judges to

select a sentence within the range authorized by law.” Id. at 2163.

In the matter sub judice, and as noted above, the Commonwealth concedes that

certain procedural provisions of Section 6317 are unconstitutional in the wake of

Alleyne. Nevertheless, the Commonwealth argues that those provisions are severable,

and, thus, the statute is capable of application once the violative provisions are excised.

Generally speaking, “unless otherwise specified the individual provisions of all

statutes are presumptively severable.” Commonwealth v. Williams, 832 A.2d 962, 986

(Pa. 2003). As noted above, the legislature has spoken with respect to its intent

regarding severability of statutes in Section 1925 of the Statutory Construction Act.

Section 1925 provides that the provisions of a statute shall be severable, but that this

[J-78-2014] - 14
presumption is rebutted when either (1) the valid provisions of the statute are so

essentially and inseparably connected with the void provisions that it cannot be

presumed the legislature would have enacted the remaining valid provisions without the

voided ones; or (2) the remaining valid provisions standing alone are incomplete and

incapable of being executed in accord with the intent of the General Assembly.

1 Pa.C.S. § 1925.

Accordingly, we must first review Section 6317 and determine what provisions of

the mandatory minimum sentencing statute are violative of Alleyne and then consider

whether the statute, applying Section 1925, can survive without those provisions in

accord with the intent of the General Assembly.

Initially, Section 6317(a) provides that, “[i]f the sentencing court finds that the

delivery or possession with intent to deliver was to an individual under 18 years of age,

then this section shall not be applicable and the offense shall be subject to section 6314

(relating to sentencing and penalties for trafficking drugs to minors).” 18 Pa.C.S.

§ 6317(a) (emphasis added). The Commonwealth concedes that this provision, placing

in the hands of the sentencing court a factual determination regarding application of

Section 6317, is unconstitutional and must be severed from the statute. This provision,

like other provisions in 6317(b) discussed below, is inconsistent with Alleyne’s dictate

that a fact which may increase a penalty must be submitted to a jury, and, for our

purposes, evinces an intent on the part of the legislature to make mandatory minimum

sentencing independent of a charged offense.

Further, and foundationally, the General Assembly was clear that the mandatory

minimum sentencing provisions of Section 6317 were not intended to constitute an

element of a crime, and, thus, part of an offense: “The provisions of this section shall

not be an element of the crime.” 18 Pa.C.S. § 6317(b). The United States Supreme

[J-78-2014] - 15
Court in Alleyne, however, effected a sea change in this area of the law. Under

Alleyne’s mandate, the mandatory minimum sentencing provision found in Section

6317, together with the core crime, is deemed to be an aggravated offense of drug

trafficking with the required fact — here, proximity of the drug activity to a school —

constituting an element of the offense. See Alleyne, 133 S. Ct. at 2155 (“Any fact that,

by law, increases the penalty for a crime is an ‘element’ that must be submitted to the

jury and found beyond a reasonable doubt.”); id. at 2162 (“When a finding of fact alters

the legally prescribed punishment so as to aggravate it, the fact necessarily forms a

constituent part of a new offense and must be submitted to the jury.”). Thus, Alleyne

transforms the proximity sentencing factor of Section 6317 into exactly what the General

Assembly expressly did not intend — a proximity requirement constituting an element of

a new aggravated offense.

Related thereto, Section 6317 provides that “[n]otice of the applicability of this

section to the defendant shall not be required prior to conviction, but reasonable notice

of the Commonwealth’s intention to proceed under this section shall be provided after

conviction and before sentencing.” 1 Pa.C.S. § 6317(b). This post-conviction notice

provision further reveals a legislative intent that the mandatory minimum sentence was

not to constitute a brand-new crime, as that would require pre-trial notice. This too is

now unconstitutional in light of Alleyne’s de jure designation of a new aggravated crime

and the concomitant requirement of notice in the charging documents of this new

offense. Alleyne, 133 S. Ct. at 2161 (“Defining facts that increase a mandatory statutory

minimum to be part of the substantive offense enables the defendant to predict the

legally applicable penalty from the face of the indictment”).

Further, given Alleyne’s designation of a new aggravated offense, Section

6317(b)’s mandate that “[t]he applicability of this section shall be determined at

[J-78-2014] - 16
sentencing” is now void. Related thereto, Section 6317(b) provides “The court shall

consider evidence presented at trial, shall afford the Commonwealth and the defendant

an opportunity to present necessary additional evidence and shall determine by a

preponderance of the evidence if this section is applicable.” 18 Pa.C.S. § 6317(b).

Thus, the statute not only mandates that the sentencing court shall determine

applicability of the mandatory minimum, but that it will do so upon evidence offered both

at trial and at sentencing, and by a preponderance of the evidence standard, all of

which violate Alleyne’s requirement that such factfinding is to be treated as an element

of a new aggravated offense, determined by a jury, and by a reasonable doubt

standard.

Finally, Section 6317(d) offers that, “[i]f a sentencing court refuses to apply this

section where applicable, the Commonwealth shall have the right to appellate review of

the action of the sentencing court. The appellate court shall vacate the sentence and

remand the case to the sentencing court for imposition of a sentence in accordance with

this section if it finds that the sentence was imposed in violation of this section.” 18

Pa.C.S. § 6317(d). As Alleyne has rendered factfinding for purposes of Section 6317 to

be elements of a new offense and, thus, a determination for the jury, the

Commonwealth’s right to appeal that fact finding granted by subsection (d), raises

serious double jeopardy concerns.

In sum, as detailed above, we find that numerous provisions of Section 6317 are

unconstitutional in light of the United States Supreme Court’s decision in Alleyne. After

Alleyne, these aspects of the statute — that the provisions are declared not to be

elements of the offense, that notice is not required prior to conviction, that factfinding is

conducted at sentencing, that the sentencing court performs factfinding, that the

applicable standard is preponderance of the evidence, and that the Commonwealth has

[J-78-2014] - 17
the right to appeal where the imposed sentence was found to be in violation of the

statute — are now infirm. However, the other provisions — specifying the proximity of

the drug transaction to a school, and requiring the age of the offender to be over 18 —

do not offend the Supreme Court’s mandate in Alleyne. Thus, we turn to consider

whether the statute can survive without those invalid provisions, with principal focus on

the legislature’s intent. 1 Pa.C.S. § 1925; Saulsbury v. Bethlehem Steel Co., 196 A.2d

664, 667 (Pa. 1964) (“In determining the severability of a statute or ordinance, the

legislative intent is of primary significance.”).

Initially, we emphasize that, as a general overarching matter, based upon our

review of Section 6317, the General Assembly has unambiguously expressed its intent

regarding the nature of this mandatory minimum sentencing statute: it is a sentencing

statute — the provisions of the statute are not to constitute elements of an offense,

notice of its application need not be provided prior to sentencing, and factual

determinations triggering its application are to be determined at sentencing. Cf.

Samuel, 961 A.2d at 63-64 (addressing two-strikes sentencing statute, 42 Pa.C.S. §

9714(g), and unanimously finding that plain language of statute indicated that

sentencing court, and not the jury, must determine whether crime in question was crime

of violence; that jury determination would render statute contradictory by redefining the

crime with added elements; and that it is the legislature that is charged with defining

elements of crimes).2 Yet, virtually every provision of Section 6317 enacted by the

legislature to effectuate this intent runs afoul of the notice, jury trial, burden of proof, and

post-trial rights of the accused after Alleyne. These provisions are elaborate, express,

and detailed, and are no mere add ons, but, rather, are prominent and central features

of the statute. Cf. Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 2003) (finding

2
As discussed further below, Samuel addressed Section 9714 in a pre-Alleyne context.

[J-78-2014] - 18
severance permissible, as constitutionally infirm portions of Megan’s Law II were an

“add-on” to the integrated legislative scheme set out in remainder of statute, formed a

distinct program, and, absent such provisions, enforcement of the statute was possible).

In contemplating the significant rights that come with the United States Supreme Court’s

marked transformation of sentencing factors into elements of a new aggravated offense,

and the resulting evisceration of essential aspects of Section 6317, we find that the

unoffending provisions of the statute — the proximity and age requirements — standing

alone, are incomplete and incapable of being executed in accordance with legislative

intent. 1 Pa.C.S. § 1925. By operation of Alleyne, Section 6317 has been stripped of

all the features that allow it to function as a sentencing statute.

Critically, the legislature’s expression in Section 6317 that the mandatory

minimum sentencing triggers are not to be elements of a crime are clear expressions

that the General Assembly did not intend to promulgate in Section 6317 a new

aggravated offense. To effectuate the remaining provisions of Section 6317 would

require a wholesale reconceptualization of the statute. In short, it cannot be stressed

enough that the legislature intended that Section 6317 be a sentencing provision and

not a substantive offense. It is for this foundational reason that the Commonwealth’s

proposed substantive/procedural conceptualization of the statute is inapt.

The Commonwealth asserts the employment of special verdicts — or, as

expressed at oral argument, the finding of a general verdict with special interrogatories

addressing proximity and age — as a way to cure the constitutional deficiencies in the

statute. We disagree. First, nothing in Section 6317 suggests the legislature

contemplated such an approach. Second, special verdicts would not cure the notice

and appeal provisions of Section 6317 noted above. Specifically, as, under Alleyne, the

factual determinations of proximity and age pursuant to Section 6317 would be

[J-78-2014] - 19
elements of a new aggravated offense, the complaint and information/indictment would

have to set forth related allegations. See, e.g., Pa.R.Crim.P. 504, 560. This notice

requirement could not be remedied by the use of special verdicts. Furthermore, were

special verdicts utilized, the provision affording the Commonwealth an appeal would be

problematic, as it would suggest the appellate court could de novo reassess a jury’s

determination with respect to proximity and age.

Moreover, in our pre-Alleyne decision in Samuel,3 our Court, in addressing a two-

strikes mandatory minimum sentencing provision virtually identical to Section 6317,

rejected special verdicts as a possible tool to allow a jury to render a factual

determination for purposes of sentencing. Specifically, the appellant, Eric Samuel, was

sentenced after the Commonwealth sought application of the mandatory two-strike

provision in 42 Pa.C.S. § 9714. Samuel, 961 A.2d at 59-60. The Commonwealth

asserted that a conviction for the burglary of Jamaal Garnett’s home constituted a

second strike under the statute because the evidence at trial revealed that, when

appellant committed the burglary, Garnett was home, in a building adapted for overnight

accommodations, which satisfied the definition of a “crime of violence” for purposes of

the two-strike statute. Samuel argued that, because the information did not specify that

a person was present during the burglary, and the jury was not specifically asked to

render a factual determination in this regard, the burglary conviction could not qualify as

a “crime of violence,” and should not count as a second strike. Id. Nevertheless, the

sentencing court made the factual finding that Garnett was home when Samuel entered

the premises, and, thus, that his burglary constituted a crime of violence. Id.

3
While Samuel was decided prior to the United States Supreme Court’s decision in
Alleyne, it nevertheless is instructive, not only with respect to assessing the legislature’s
intent that the mandatory minimum sentencing provisions were not to be elements of a
crime, but, also, as to the disfavor of special verdicts in criminal trials.

[J-78-2014] - 20
 On Samuel’s appeal to our Court, we placed particular emphasis on the statute’s

verbiage, like that in Section 6317 before us, that its mandatory provisions were not

elements of the crime and that the statute was not to be applied until sentencing. Thus,

we opined that the plain language of the statute indicated the legislature’s intent, and

that the sentencing court, and not the jury, was to determine whether the crime was a

“crime of violence” by the preponderance of the evidence. Samuel, 961 A.2d at 63.

Further, we eschewed an interpretation that the burglary-related crime of violence was

required to be charged in the information, or necessitated a specific jury finding, as

improperly redefining the crime of burglary would be in contradiction to the statutory

language mandating that the provisions of Section 9714 shall not be an element of the

crime. Id. Of particular relevance to our analysis in the instant matter, we further

rejected Samuel’s position, concluding that it would require the jury to issue a special

verdict with individual interrogatories, noting that this would be contrary to the statutory

language that notice of application of the mandatory minimum sentencing was not

required prior to conviction, that there was no allowance for special verdicts in criminal

trials, and that “[t]he proposal of special verdicts in criminal trials to determine what

issues the jury actually resolved has been almost universally condemned.” Samuel,

961 A.2d at 64; see also Commonwealth v. Jacobs, 39 A.3d 977, 987 (Pa. 2012)

(plurality) (“[T]here is no authority for special verdicts in criminal trials.”).4

4
The Commonwealth contends our Court’s recognition in Samuel that special verdicts
are disfavored in criminal trials is dicta. We disagree. Special verdicts, as noted above,
were deemed to be a requirement for Samuel to obtain relief, and, thus, our Court’s
rejection of Samuel’s suggestion of the use of special verdicts was necessary to our
repudiation of his position. More importantly, we recognize that, in the post-Apprendi
landscape, courts are reconsidering the proscription against special verdicts in criminal
matters, see, e.g., Jacobs, 39 A.3d at 988 (Saylor, J., concurring); but, while the
Commonwealth points to proposed amendments to the Pennsylvania Rules of Criminal
Procedure which would, if adopted, allow for special verdicts to comply with Alleyne,
(continuedN)

[J-78-2014] - 21
 It is beyond our province to, in essence, rewrite Section 6317 to transform its

sentencing commands, whether by utilizing special verdicts or otherwise, into a new

substantive offense, contrary to the express legislative intent to the contrary. Thus, we

find the unoffending portions of the statute, standing alone, without a wholesale

rewriting, are incomplete and incapable of being vindicated in accord with the

legislature’s intent. 1 Pa.C.S. § 1925.

Our decision in Commonwealth v. Mockaitis, 834 A.2d 488 (Pa. 2003), sharpens

the point. In that matter, our Court considered a challenge to a statute which delegated

to sentencing courts the responsibility of ordering installation of ignition interlock

systems on motor vehicles as a condition precedent to restoration of operating

privileges by the Pennsylvania Department of Transportation (“Department”) for serial

DUI offenders and of certifying to the Department that such systems had been installed.

The trial court found these provisions to be unconstitutional on the basis of equal

protection, separation of powers, and procedural due process. We agreed with the

lower court that the statute’s delegation to the judiciary of executive functions was

unconstitutional as a violation of the separation of powers doctrine. Id. at 499-502.

Our Court, however, went on, sua sponte, to consider whether the statute was

severable, and concluded that the statute did not need to be struck in its entirety. In so

holding, we explained that, in accordance with legislative intent, recidivist DUI offenders

were still required to seek restoration of operating privileges by applying to the

Department for an ignition interlock restricted license, and, thus, an administrative

(Ncontinued)
such rules, even if adopted, are tangential to discerning the severability of provisions
contained in a statute with an express, detailed, and expansive procedure, and, more
importantly, in estimating legislative intent.

[J-78-2014] - 22
agency was available to effectuate the remaining portions of the statute. We stressed

that

the Department - the administrative agency that properly
should discharge the executive function that [the statute]
delegated to the judiciary -- may employ the remaining valid
portions of [the statute] to effectuate the legislative
requirement that serial DUI offenders, who can have their
driving privileges restored after an automatic one-year
suspension, may do so only after securing an ‘ignition
interlock restricted license’ which allows an offender to
operate a motor vehicle only if it is equipped with an
approved ignition interlock system.

Id. at 490. Here — unlike in Mockaitis where there already existed a process in place to

execute the remaining valid portions of the statute which was consistent with legislative

intent — the General Assembly has made clear that the provisions of Section 6317 are

not to be elements of the crime and no substitute process can fix that.

In conclusion, we hold, as detailed above, that numerous provisions of Section

6317 are constitutionally infirm under Alleyne. Moreover, the remaining provisions of

Section 6317, standing alone, are incomplete and are incapable of being vindicated in

accord with the intent of the General Assembly. 1 Pa.C.S. § 1925. Because of the

significant provisions found to violate the Constitution, which clearly express the intent

of the legislature that Section 6317 is a mandatory minimum sentencing statute, and not

a substantive offense, we find the remaining unoffending provisions of Section 6317 are

incapable of being severed, and we will not judicially usurp the legislative function and

rewrite Section 6317 or create a substantive offense which the General Assembly

clearly did not desire. Rather, we leave it to our sister branch for an appropriate

[J-78-2014] - 23
statutory response to the United States Supreme Court’s decision in Alleyne.5 See

Commonwealth v. Kirkner, 805 A.2d 514, 516-17 (Pa. 2002) (“The statute cannot be

modified by judicial discretion, no matter how well-intentioned the trial court might be.”);

Commonwealth v. Wright, 494 A.2d 354, 357 (Pa. 1985) (“[U]nder our system of

jurisprudence the legislature is charged with the responsibility of defining the elements

of crimes.”); see also Commonwealth v. Mazzetti, 44 A.3d 58, 67 (Pa. 2012) (per

curiam) (finding, in context of Commonwealth being precluded from seeking mandatory

sentence at revocation of probation where it did not seek the mandatory sentence at the

original sentencing proceeding, “[t]his Court may not supply omissions in a statute

[Section 6317]” (internal quotation omitted)); Commonwealth v. Dixon, 53 A.3d 839, 846

(Pa. Super. 2012) (in concluding that a daycare does not constitute a school for

purposes of Section 6317, noting that a court has no authority to insert words in the

statute not provided by General Assembly).

Finally, and importantly, our decision today in no way impacts the ability of the

Commonwealth to convict and sentence those dealing in illegal drugs near our

5
Indeed, Appellee offers that the legislature may view the alternative of revising
the sentencing guidelines to reflect such enhanced sentencing as an adequate and
preferable option. Appellee’s Brief at 21. In this regard, the United States Supreme
Court in Alleyne was clear that facts that influenced judicial discretion did not have to be
submitted to the jury and that “broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.” Alleyne, at 2163; see also
Apprendi, 530 U.S. at 481 (“[N]othing in this history suggests that it is impermissible for
judges to exercise discretion — taking into consideration various factors relating both to
offense and offender — in imposing a judgment within the range prescribed by statute”)
(emphasis original); United States v. Cassius, 2015 U.S. App. LEXIS 1200, *9-10 (3d
Cir. January 27, 2015) (reasoning trial court’s finding of larger drug quantity used solely
as a sentencing factor to assist in determining defendant’s sentence within prescribed
statutory range permissible under Alleyne); United States v. Freeman, 763 F.3d 322,
336 (3d Cir. 2014) (same); United States v. Ramirez-Negron, 751 F.3d 42, 49 (1st Cir.
2014) (same).

[J-78-2014] - 24
Commonwealth’s schools — it merely limits the imposition of a mandatory minimum

sentence for those offenders until our legislature acts to address the constitutional

requirements imposed by the United States Supreme Court in Alleyne.6

The order of the Court of Common Pleas of Chester County is hereby affirmed.

6
In concluding the statute is severable, the dissenters focus almost exclusively on the
General Assembly’s “manifest” intent in enacting Section 6317 — to impose “mandatory
minimum sentences upon those who sell drugs in a school zone,” Dissenting Opinion
(Stevens, J.) at 5, and “enhanced penalties for drug sales near our schools,” Dissenting
Opinion (Eakin, J.) at 2. There is no controversy over the legislature’s goal in passing
Section 6317 or its wisdom in imposing mandatory minimum sentences on those who
sell drugs near our schools. However, the intent behind the legislature’s passage of
Section 6317 is relevant only in the context of the discrete severability analysis under 1
Pa.C.S. § 1925.
With respect to that analysis, as noted above, the United States Supreme Court
in Alleyne held that any fact which increases a mandatory minimum sentence is an
element of the crime which must be submitted to the jury and found beyond a
reasonable doubt — i.e., the core crime and the fact triggering the mandatory minimum
sentence together constitute a new aggravated crime, and the triggering fact must be
charged in the indictment as an element of that new crime. Thus, any severability
analysis must take into account this transformation of a mandatory minimum sentencing
provision into a substantive offense — with the proximity of the sale of drugs to school
property being an element of that crime. Here, the General Assembly could not have
been clearer that it did not intend to create a new offense, with its attendant notice
requirements, when it stated that the provisions of the mandatory sentencing statute
“shall not be an element of the crime.” 18 Pa.C.S. § 6317(b). Nowhere in either dissent
is this critical statement of the legislature’s intention mentioned, or accounted for. Nor
do they address how special verdicts would account for the notice requirements that are
explicit in Alleyne’s mandate. Alleyne, 133 S.Ct. at 2161 (“Defining facts that increase a
mandatory statutory minimum to be part of the substantive offense enables the
defendant to predict the legally applicable penalty from the face of the indictment”). The
dissenters’ position — effectively converting the remaining valid provisions of the
sentencing statute into elements of a new substantive offense — is in direct conflict with
the General Assembly’s unambiguous intent that these provisions are not to be an
element of the crime. While the legislature may rightfully “still want enhanced penalties
for drug sales near our schools,” Dissenting Opinion (Eakin, J.) at 2, the General
Assembly made it equally and abundantly clear that it did not want them to be a
substantive offense. Thus, it is for the legislature, not this Court, to devise a response
consistent with the Supreme Court’s mandate in Alleyne.

[J-78-2014] - 25
 Former Chief Justice Castille and former Justice McCaffery did not participate in

the decision of this case.

Mr. Chief Justice Saylor and Mr. Justice Baer join the opinion.

Mr. Justice Eakin files a dissenting opinion.

Mr. Justice Stevens files a dissenting opinion.

[J-78-2014] - 26