Commonwealth, Aplt. v. Wolfe, M.

[J-24-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 68 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1962 MDA 2013 dated
v. : 12/24/14 vacating and remanding the
: judgment of sentence of the Lancaster
: County Court of Common Pleas,
MATTHEW BRYAN WOLFE, : Criminal Division, at No. CP-36-CR-
: 5791-2012 dated 10/1/13
Appellee :
:
: ARGUED: November 18, 2015
: RESUBMITTED: January 20, 2016

Chief Justice Saylor delivered the Opinion of the Court with
respect to Parts I and II(B), joined by Justices Baer,
Donohue and Wecht. Chief Justice Saylor also authored
Part II(A), which is joined by Justice Donohue. Justice Baer
files a concurring opinion pertaining to Part II(A), joined by
Justice Wecht. Justice Todd files a dissenting opinion,
joined by Justice Dougherty, and Justice Dougherty files a
separate dissenting opinion.

OPINION

CHIEF JUSTICE SAYLOR1 DECIDED: June 20, 2016

1
This matter was reassigned to this author.
 Appeal was allowed to assess the validity of the Superior Court’s sua sponte

determination that a sentencing statute is facially unconstitutional under Alleyne v.

United States, ___ U.S. ___, 133 S. Ct. 2151 (2013).

I. Background
In August 2012, Appellee, an eighteen-year-old male, engaged in sexual

intercourse with a thirteen-year-old girl on several occasions. He was charged with and

convicted in a jury trial of a number of sexual offenses, including two counts of

involuntary deviate sexual intercourse under Section 3123(a)(7) of the Crimes Code, 18

Pa.C.S. §3123(a)(7). This statute prescribes, as a general rule, that it is a felony of the

first degree to engage in deviate sexual intercourse with a complainant who is less than

sixteen years of age. See id.

During Appellee’s trial and prior to sentencing, the Supreme Court of the United

States issued its Alleyne decision, overruling its own prior precedent and establishing a

new constitutional rule of law, grounded on the Sixth Amendment to the United States

Constitution. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2162-63. The Alleyne Court

held that any fact that, by law, increases the penalty for a crime must be treated as an

element of the offense, submitted to a jury rather than a judge, and found beyond a

reasonable doubt. See id. at ___, 133 S. Ct. at 2163. The opinion also explained that

the requirement to treat factors triggering at-law mandatory sentencing enhancements

as offense elements “enables the defendant to predict the legally applicable penalty

from the face of the indictment.” Id. at ___133 S. Ct. at 2161.

The effect of Alleyne’s new rule was to invalidate a range of Pennsylvania

sentencing statutes predicating mandatory minimum penalties upon non-elemental facts

and requiring such facts to be determined by a preponderance of the evidence at

sentencing. See, e.g., Commonwealth v. Hopkins, ___ Pa. ___, ___, 117 A.3d 247,

[J-24-2016] - 2
262 (2015) (holding that Section 6317 of the Crimes Code is constitutionally infirm for

these reasons, under Alleyne).

Among a litany of other prescriptions for mandatory minimum sentences, Section

9718(a)(1) of the Sentencing Code requires imposition of a ten-year mandatory

minimum sentence for IDSI crimes, where the victims are less than sixteen years of

age. See 42 Pa.C.S. §9718(a)(1). Of particular relevance here, the statute specifies

that its provisions “shall not be an element of the crime,” and that the applicability “shall

be determined at sentencing,” with factual matters being resolved by the sentencing

court “by a preponderance of the evidence.” Id. §9718(c). Both the directive that a

sentencing factor establishing a mandatory minimum sentence is not an element of a

crime and the allocation of decision-making authority relative to such factor to a judge

contravene Alleyne. See Hopkins, ___ Pa. at ___, 117 A.3d at 257-58. Section 9718

also does not require the Commonwealth to provide notice that it intends to pursue the

mandatory minimum sentence before trial, but rather, prescribes only that such

notification must be furnished after conviction and before sentencing. See 42 Pa.C.S.

§9718(c). Again, the absence of a requirement for pretrial notice of aggravation is in

substantial tension with Alleyne. See Hopkins, ___ Pa. at ___, 117 A.3d at 258.

Significantly, however, at least for purposes of the arguments presented in this appeal,

the statute’s proclamation that the age-of-the-victim factor is not an offense element is

anomalous, since the victim’s age is, in fact, encompassed within IDSI offenses under

Section 3123(a)(7), under which Appellee was convicted.

In October 2013, the sentencing court imposed mandatory minimum sentences

of ten years upon Appellee for each IDSI offense, albeit that the court specified that

those sentences would run concurrently. The record contains no evidence that the

sentencing court conducted any independent inquiry or assessment relative to

[J-24-2016] - 3
determining the victim’s age, as directed by Section 9718(c). Appellee pursued relief in

a direct appeal; however, he did not raise a challenge to his sentences under Alleyne.

Nevertheless, the Superior Court invoked Alleyne sua sponte, vacated the

judgments of sentence, and remanded for resentencing. See Commonwealth v. Wolfe,

106 A.3d 800, 801, 806 (Pa. Super. 2014). The majority explained that ordinary waiver

principles do not apply to “the legality of the sentence,” and that illegal sentences may

be corrected by appellate courts of their own accord. Id. at 801 (citing Commonwealth

v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)). Further, the majority observed

that the Superior Court had previously determined that violations of Alleyne’s

commands implicate sentencing legality. See id. (citing Commonwealth v. Lawrence,

99 A.3d 116, 122-25 (Pa. Super. 2014)).

The majority regarded the Alleyne error in the present case as being patent, in

that the mandatory minimum sentence was imposed under the authority of a statute

predicating its applicability on a fact designated as a non-element and directing a judge

to make the determination by a preponderance of the evidence. In this regard, the

majority noted that the Superior Court had previously invalidated a range of similarly-

patterned statutes. See id. at 803-05 (citing Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014) (en banc) (holding that Section 9712.1 of the Sentencing Code

violates Alleyne), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)

(same, relative to Sections 9712 and 9713 of the Sentencing Code)).

The majority acknowledged the anomaly in Section 9718(c), in that the statute

mandates that the age factor “shall not be an element of the crime,” whereas, in point of

fact, age is an element. Indeed, the majority recognized that, in Commonwealth v.

Matteson, 96 A.3d 1064 (Pa. Super. 2014), the Superior Court had previously decided

that a sentence under Section 9718(a)(1) did not violate Alleyne, on account of this

[J-24-2016] - 4
incongruity. See Wolfe, 106 A.3d at 805-06 (quoting Matteson, 96 A.3d at 1066-67).

Nevertheless, the majority regarded Matteson as implicitly effectuating a severance of

unconstitutional provisions of Section 9718, an exercise which the Superior Court had

refused to undertake in other cases, including the en banc Newman decision. See

Newman, 99 A.3d at 102 (“We find that it is manifestly the province of the General

Assembly to determine what new procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania following Alleyne.”); see also Valentine,

101 A.3d at 811 (concluding, in accordance with Newman, that a court of common pleas

had performed “an impermissible legislative function” by submitting special

interrogatories to a jury in an effort to work around the unconstitutional terms of a

statute directing that fact-finding relative to a mandatory minimum sentence was to be

accomplished at the sentencing stage).

All members of the three-judge panel took the opportunity to express their views

that Newman was wrongly decided and severance should be permitted. See Wolfe,

106 A.3d at 803 n.4 (Mundy, J.); id. at 807 (Bowes, J., concurring, joined by Jenkins,

J.). Furthermore, because the jury, in fact, had determined that the victim in Appellee’s

case was under the age of sixteen, left to her own devices, Judge Bowes would have

deemed any Alleyne-related error to have been harmless. See id. at 808.

Judge Bowes also expressed concern with the majority’s approach in addressing

severability sua sponte. See id. at 809. In her view, the matter was sufficiently

debatable, and the underlying questions sufficiently complex, that resolution should

have occurred only after full briefing. See id.

Six months after the Superior Court filed its opinion in Wolfe, this Court set forth

its own decision in Hopkins, which vindicated the en banc Newman panel’s position that

unconstitutional terms of a mandatory minimum sentencing statute -- including the

[J-24-2016] - 5
requirement for operative facts to be determined by a judge at sentencing by a

preponderance of the evidence -- cannot be severed by the judiciary. See Hopkins, ___

Pa. at ___, 117 A.3d at 262. In this regard, this Court found the defective provisions to

be simply too fundamental to the sentencing statute to permit severance. See id. at

259-60 (“[I]t cannot be stressed enough that the legislature intended that Section 6317

be a sentencing provision and not a substantive offense.”). In addition, Hopkins

emphasized the courts’ limited role in redressing statutes infused with such deep-seated

constitutional infirmities. See id. at 262 (“[W]e will not judicially usurp the legislative

function and rewrite [the mandatory minimum sentencing statute] or create a

substantive offense which the General Assembly clearly did not desire. Rather, we

leave it to our sister branch for an appropriate statutory response to the United States

Supreme Court’s decision in Alleyne.”). Hopkins also declined to cognize work-around

efforts deviating from the statutory commands, such as the use of special

interrogatories. Id. (“[T]he 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.”).

We allowed appeal in this case to consider the issue, as framed by the

Commonwealth, of “[w]hether the Superior Court[‘s] sua sponte determination that the

ten year mandatory minimum sentence for [IDSI] . . . is facially unconstitutional is

erroneous as a matter of law?” Commonwealth v. Wolfe, ___ Pa. ___, 121 A.3d 433,

434 (2015) (per curiam). Our review of the legal questions involved is plenary.

Presently, the Commonwealth argues that the Superior Court’s decision to

proceed sua sponte upon its discernment of an Alleyne violation was improper. In

support of this proposition, the Commonwealth references several decisions that

generally reinforce the issue preservation doctrine. See id. at 11 (citing Commonwealth

[J-24-2016] - 6
v. Colavita, 606 Pa. 1, 29-30, 993 A.2d 874, 891-92 (2010), and Steiner v. Markel, 600

Pa. 515, 521-22, 968 A.2d 1253, 1256-57 (2009)). The Commonwealth, however, does

not discuss the line of cases clearly implicated by the Superior Court’s opinion, per

which courts are empowered to address illegal sentences regardless of issue

preservation concerns. See, e.g., Commonwealth v. Foster, 609 Pa. 502, 522, 17 A.3d

332, 345 (2011) (Opinion Announcing the Judgment of the Court);2 cf. Commonwealth

v. Dickson, 591 Pa. 364, 370, 918 A.2d 95, 99 (2007) (“[I]f the sentence clearly

implicates the legality of sentence, whether it was properly preserved below is of no

moment, as a challenge to the legality of sentence cannot be waived.”).

On the merits, the Commonwealth argues that Appellee received all of the

benefit of the constitutional right announced in Alleyne. According to its brief, “[n]o

judicial fact finding took place in this case,” since the age factor already was an element

of the IDSI crime. Brief for Appellant at 8. In this respect -- and although Section

9718(c) explicitly directs sentencing judges to conduct the material fact-finding -- the

Commonwealth loosely pronounces that “Section 9718 does not require any judicial fact

finding.” Id. at 17. In the same vein, the Commonwealth indicates that “Section 9718(a)

standing alone is all that is required to impose the mandatory sentence and it fully

comports with the dictates of Alleyne,” id., thus implicitly suggesting that the elemental

2
Although Foster is a plurality opinion, there was a consensus among a majority of
Justices that there is some range of sentences concerning which challenges are
“nonwaivable” and, thus, subject to correction by the courts of their own accord. See
Foster, 609 Pa. at 522, 17 A.3d at 345 (Opinion Announcing the Judgment of the
Court); id. at 534, 17 A.3d at 352 (Castille, C.J., concurring) (explaining that at least “[a]
classic claim of sentencing ‘legality’ . . . may be raised sua sponte”); id. at 539-41, 17
A.3d 355-56 (Saylor, J., concurring) (“To the degree [that the lead opinion] reflects that
review of legality-of-sentence claims has been made available in limited categories of
cases beyond those involving claims that sentences exceeded statutory maximums --
despite non-adherence to ordinary principles of issue preservation and presentation -- I
support its reasoning and holding.”).

[J-24-2016] - 7
and procedural requirements of Section 9718(c) that are contrary to Alleyne should be

severed, disregarded, displaced, or otherwise obviated.

For similar reasons, to the extent that this Court would find a constitutional

violation, the Commonwealth urges us to consider the error harmless. The

Commonwealth explains that Alleyne is an extension of Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348 (2000), and the Supreme Court of the United States has held

that Apprendi errors can be harmless. See Brief for Appellant at 17 (citing United

States v. Cotton, 535 U.S. 625, 632-33, 122 S. Ct. 1781, 1786 (2002)). The

Commonwealth cites Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), for the

proposition that “where a reviewing court concludes beyond a reasonable doubt that [an

offense] element [omitted from a jury charge] was uncontested and supported by

overwhelming evidence, such that the jury verdict would have been the same absent

the error, the erroneous instruction is properly found to be harmless.” Id. at 17, 119 S.

Ct. at 1837.

It is also the Commonwealth’s position that the Superior Court’s en banc decision

in Newman should be overruled insofar as it denominated mandatory minimum

sentencing statutes as being facially unconstitutional. Once again without reference to

9718(c), the Commonwealth repeatedly states that “Section 9718 as currently written

fully complies with and provides any defendant with all the Constitutional rights

guaranteed by the Sixth Amendment.” Brief for Appellant at 8, 20. In a footnote, the

Commonwealth alludes to the determination in Hopkins that severance was unavailable

relative to the sentencing provision under consideration there, but the Commonwealth

nonetheless contends that severance would be more readily accomplished as to

Section 9718. See id. at 20 n.5.

[J-24-2016] - 8
 The Pennsylvania District Attorneys Association (“PDAA”) has submitted a brief

as an amicus. Unlike the Commonwealth, PDAA does recognize that there is a line of

cases from this Court vindicating the appellate courts’ authority to act sua sponte to

redress illegal sentences. See supra note 2. PDAA describes this area of the law as

“confused,” however, and urges clarification in the form of a rule confining “illegality” to

instances in which jurisdiction to impose a sentence is clearly lacking. See Brief for

Amicus PDAA at 17-18.

On the merits, PDAA supports the Commonwealth’s view that Section 9718 is

not facially unconstitutional, and that it can be applied in the present scenario without

violating the Constitution. The analysis initially segues into a harmless error

assessment, in which PDAA cites Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.

2546 (2006), as an example where the Supreme Court of the United States deemed an

Apprendi-based error to be harmless. See id. at 221-22, 126 S. Ct. at 2552-53. To

mitigate the implication that a harmless-error analysis would suggest that Section 9718

might be invalid in the first instance, PDAA reasons that “applying a statute in a manner

that is constitutionally erroneous but harmless is at least one circumstance in which the

statute continues to be valid.” Brief for Amicus PDAA at 10.

In any event, it is also PDAA’s position that Section 9718 is not constitutionally

erroneous. In this regard, PDAA asserts that Alleyne does not mandate particular forms

of legislation, but rather, merely enforces the federal constitutional rights to trial by a jury

and due process by requiring factual triggers to mandatory minimum sentences to be

specified in the criminal information and proven at trial by a jury (in absence of a jury-

trial waiver), beyond a reasonable doubt. Where, as here, these elements are met in

the abstract, PDAA contends that there is no constitutional violation in the first instance,

and further assessment of the terms of the sentencing statute is unnecessary and,

[J-24-2016] - 9
indeed, misguided. “By focusing on the sentencing statute,” PDAA indicates, “the

Superior Court was looking through the wrong end of the telescope.” Brief for Amicus

PDAA at 12; id. (“Here the relevant task was not to compare the statute with Alleyne,

but its application.” (emphasis in original)).

PDAA also takes the opportunity to express its continuing disagreement with

Hopkins and urges that it should be overruled, particularly as concerns the decision to

deny severance. See, e.g., id. at 25-26 (“A due process decision by the federal

Supreme Court should not be construed to require wholesale rewriting of criminal

statutes.”). In the absence of severance, PDAA contends that the problematic

requirements of Section 9718 can be deemed “preempt[ed]” or “moot” or “dormant” or

“irrelevant.” Id. at 25. In this way, PDAA envisions that the remainder of the statute can

be constitutionally applied without severance.

Appellee, on the other hand, charges that “this case is an inappropriate vehicle to

even consider the arguments of the Commonwealth and its amicus because . . . they

are all based on the faulty premise that [Appellee] received the requisite statutory and

due process protections in this case.” Brief for Appellee at 22. Appellee stresses that

the relevant provisions of Section 9718 are materially identical to those before the Court

in Hopkins, which held that the sentencing statute containing them was void in its

entirety. See Hopkins, ___ Pa. at ___, 117 A.3d at 260-62. Appellee further observes

that Hopkins confirmed that the statute could not be “cured” by a jury determination at

trial of the factual element necessary to be established. See id. at ___, ___, 117 A.3d

at 250, 260. Additionally, Appellee points to a series of per curiam orders in which this

Court, in more than thirty separate cases, has affirmed decisions of the intermediate

and trial courts holding that sentencing statutes patterned in the same manner as

Section 9718 are non-severable and void. See, e.g., Commonwealth v. Wiley, ___ Pa.

[J-24-2016] - 10
___, 124 A.3d 735 (2015) (per curiam); Commonwealth v. Peres, ___ Pa. ___, 121 A.3d

983 (2015) (per curiam); Commonwealth v. Guzman, ___ Pa. ___, 121 A.3d 986 (2015)

(per curiam).

Next, Appellee notes that Section 9718(a) applies to convictions for not only

IDSI, but also twenty-one different underlying offenses as defined by multiple criminal-

law statutes, and only in one such permutation is the triggering fact also an element of

the underlying offense. Thus, Appellee regards the Commonwealth’s present legal

position as one of very limited application, and he maintains that all other applications of

Section 9718(a) are “indistinguishably unconstitutionally void” under Hopkins. Brief for

Appellee at 12.

As to the Commonwealth’s and PDAA’s position that a mandatory minimum

sentence can be upheld in the absence of a valid enabling statute, Appellee finds such

position to be untenable. According to Appellee, “[i]n the absence of a mandatory

minimum sentencing statute is a court supposed to make up its own mandatory

minimum sentence or impose the one that used to exist in the now unenforceable

voided statute?” Brief for Appellee at 15 n.4. To the contrary, it is Appellee’s core

position that there simply can be no mandatory minimum sentence without valid

statutory authorization. For this proposition, Appellee draws support from a line of

Superior Court cases holding that unconstitutional statutes are of no effect. See Brief

for Appellee at 15-16 (citing Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa.

Super. 2006) (“If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.”); Commonwealth v. Michuck, 686 A.2d

403, 407 (Pa. Super. 1996) (“An unconstitutional statute is ineffective for any purpose”

and a “court does not have power to enforce a law which is no longer valid.”)).

[J-24-2016] - 11
 Appellee also explains that in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d

593 (1999), after determining that a statutory presumption in determining status as a

sexually violent predator was unconstitutional and not severable, this Court simply

struck all relevant provisions of the statute related to sexually violent predators. See id.

at 312-13 & n.18, 733 A.2d at 608 & n.18. Likewise, Appellee argues, the courts are not

entitled to substitute their own procedures for those that are clearly prescribed by the

Legislature in Section 9718(c) and which contravene Alleyne. To the extent that the

sentencing court merely acceded to the jury’s finding rather than performing its statutory

duty to engage in fact-finding, Appellee believes that such procedure is “entirely

contrary to those unambiguously intended by the Legislature” and “is the antithesis of

the court’s appropriate role.” Brief for Appellee at 20; cf. Commonwealth v. Fennell, 105

A.3d 13, 20 (Pa. Super. 2014) (reaffirming that creating any new procedure for imposing

a mandatory minimum sentence to supplant statutes invalidated by Alleyne was a

matter “solely within the province of the legislature”). According to Appellee,

reinstatement of his mandatorily-imposed minimum sentence would be tantamount to

the same sort of rewriting of a statute, and transformation of legislative sentencing

commands, that was eschewed in Hopkins. See Hopkins, ___ Pa. at ___, 117 A.3d at

261.

In the broadest plane, Appellee maintains that statutes violating Alleyne in the

manner discussed in Hopkins are facially void, and no minimum sentence may be

sanctioned that was imposed under them.

Appellee’s amicus, the Defender Association of Philadelphia, clarifies that,

conceptually, per Alleyne, Section 9718 must be viewed as a separate and distinct

offense from the IDSI statute. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2161

(couching an at-law enhancement requirement predicated upon a particular fact as “a

[J-24-2016] - 12
new, aggravated crime”). The Association recognizes the anomaly driving the

Commonwealth’s arguments for divergence from Hopkins, in that Section 9718(c) is

flatly incorrect in its pronouncement that the age factor is not an element of the offense.

The amicus, however, does not accept the notion that this incongruity relieves

sentencing courts from compliance with their express statutory responsibility to

undertake judicial fact-finding. Because, under Alleyne, the IDSI crime and the Section

9718(a)(1) crime are now separate offenses, the Defender Association asserts that

each requires independent fact-finding by separate fact-finders, per the express

legislative command. See 42 Pa.C.S. §9718(c). In the Association’s estimation,

abstract notions of collateral estoppel -- discussed by neither the Commonwealth nor

PDAA but which appear to be implicit in their arguments -- cannot negate or displace

the sentencing court’s express statutory responsibility. See Brief for the Defender Ass’n

of Phila. at 13 (“What the jury may have found in relation to the IDSI [statute] does not

supplant the trial court’s Section 9718(c) statutorily required fact-finding

responsibilities.”); id. at 11-12 (citing State v. Allen, 31 A.3d 476, 483 (Md. Ct. App.

2011), for the proposition that collateral estoppel may not be used against a criminal

defendant).

The Defender Association does not specifically contest the jury’s finding as to the

victim’s age in this case on its merits. Nevertheless, the Association observes that this

factor may be legitimately in dispute in other cases, such as where the victim emigrates

from a foreign country and arrives without a birth certificate or other official or definitive

records. In any event, amicus regards the issue presented in this case as a structural

one -- Section 9718(c) mandates unconstitutional non-elemental status and judicial fact-

finding; this Court held in Hopkins that such provisions were non-severable; and, thus,

[J-24-2016] - 13
Section 9718 must be reevaluated by the Legislature, not reformulated or skirted by the

judiciary.

In terms of harmless error, it is the position of the Defender Association that

harmless-error review is inappropriate where a mandatory minimum sentence is

imposed under a statute that is itself unconstitutional and unenforceable. See Brief for

Amicus Defender Ass’n of Phila. at 14 (“The harmlessness of any procedural infirmity

does not bring back to life the constitutional[ly] dead statute.”); accord Fennell, 105 A.3d

at 19-20 n.5 (“[O]nce the Court concludes that the subsections cannot be severed and

must all be struck down, there is no statutorily authorized sentence upon which a

harmless error analysis may be applied.” (citing Commonwealth v. Rivera, 95 A.3d 913,

915 (Pa. Super. 2014), for the proposition that “[i]f no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction”)). While

recognizing that the Commonwealth and PDAA have cited a number of cases

suggesting that Apprendi-based errors can be harmless, amicus relates that none of

these decisions involved a scenario in which the harmless-error determination

“reanimate[d] or [brought] back to life a statute that was found to be facially

unconstitutional and unenforceable absent the harmless error.” Brief for Amicus

Defender Ass’n of Phila. at 15.

II. Discussion
A. Legality of Sentencing

We begin our consideration of the above presentations with the matter of sua

sponte appellate review. Appeal has been allowed in Commonwealth v. Barnes, ___

Pa. ___, 122 A.3d 1034 (2015) (per curiam), to address the question of whether an

Alleyne violation implicates the legality of a sentence and thus renders a challenge non-

waivable. Particularly since the Commonwealth, in the role of the appellant in the

[J-24-2016] - 14
present case, has not addressed the relevant line of decisions, we defer deeper

consideration of the waiver question to Barnes.3 For the present, it is sufficient to

observe that this Court has previously found that an asserted Apprendi-line violation

implicated the legality of a sentence, see Commonwealth v. Aponte, 579 Pa. 246, 250-

51 n.1, 855 A.2d 800, 802-03 n.1 (2004); accord Commonwealth v. Gordon, 596 Pa.

231, 234, 942 A.2d 174, 175 (2007) (“It seems to be a settled question in Pennsylvania

that Apprendi-based challenges raise questions related to the legality of a sentence[.]”),

and that legality-of-sentence claims are not subject to the traditional waiver doctrine.

See supra note 2.4

3
In his dissent, Justice Dougherty expresses a preference for the present case to be
held pending Barnes. At this juncture, however, Barnes is only midway through the
briefing stage. Moreover, unlike this case, the Barnes appeal does not involve the
anomaly per which the Legislature’s apparent misapprehension concerning offense
elements serves as the Commonwealth’s justification for disregarding the statute’s
unconstitutional directives to judicial officers.

Throughout his opinion, Justice Dougherty repeatedly characterizes the application of
Alleyne in the present scenario as “retroactive” or “retrospective,” without recognizing
that Alleyne was decided months before the issuance of the dispositive sentencing
order under review in this case.

4
In concurrence, Justice Baer advocates a broader approach, relating that “a majority
of justices in Foster agreed that a challenge to the application of a mandatory minimum
sentence was not waivable,” and that the division among Justices involved the
reasoning only. Concurring Opinion, slip op. at 2. To clarify, what was at issue in
Foster was a particular, discrete challenge to a mandatory minimum sentence, namely,
one grounded in a longstanding judicial misreading of the terms of the relevant
sentencing provision. See Foster, 609 Pa. at 505, 17 A.3d at 334 (Opinion Announcing
the Judgment of the Court); see also Commonwealth v. Dickson, 591 Pa. 364, 372-74,
918 A.2d 95, 100-01 (2007) (elaborating on the issue of statutory interpretation
involved). While the Court unanimously determined that such specific challenge could
be vindicated in spite of lapses in issue preservation, it is important to recognize that a
majority of Justices disagreed with the position advanced in the lead opinion that all
challenges associated with the application of mandatory minimum sentences should be
deemed non-waivable. See Foster, 609 Pa. at 526-27, 17 A.3d at 347 (Castille, C.J.,
(continuedN)
[J-24-2016] - 15
B. Alleyne’s Application

On the merits, we reaffirm our decision in Hopkins in all material respects and

conclude that it applies here. Initially, as should be apparent from the above, we differ

with the Commonwealth’s position that Section 9718 does not require judicial fact-

finding and that Section 9718(a), standing alone, is all that is required to impose the

mandatory minimum sentence. To the contrary, Section 9718 does plainly and explicitly

require judicial fact-finding in its subsection (c). See 42 Pa.C.S. §9718(c) (“The

applicability of this section shall be determined at sentencing . . . by a preponderance of

the evidence.”). Moreover, since subsection (c) is integral to the statute, Section

9718(a) does not stand alone. See id.

Similarly, we regard the suggestions by the Commonwealth and its amicus that

Section 9718(c) can be deemed preempted, moot, dormant, or irrelevant -- or can be

otherwise disregarded or overlooked -- to be tantamount to severance. The severance

doctrine is the appropriate mechanism for testing whether some provisions of an

otherwise unconstitutional statute may stand. See, e.g., Hopkins, ___ Pa. at ___, 117

A.3d at 259-62 (applying the severance doctrine in determining “whether the statute can

survive without [unconstitutionally] invalid provisions”). Accordingly, in our considered

judgment, Section 9718 rises or falls based on the application of such principles, and,

(Ncontinued)
concurring, joined by Orie Melvin, J.); id. at 539-41, 17 A.3d at 355-56 (Saylor, J.,
concurring); id. at 541-42, 17 A.3d at 356-57 (Eakin, J., concurring, joined by Castille,
C.J.).

Certainly, Justice Baer’s inclination to maintain the bright-line approach that he
advocated from a minority position in Foster is understandable. From our perspective,
however, it is preferable for the Court to revisit this controversial area of the law, in
which sharp divisions previously have arisen and been maintained, in a context in which
the competing positions are better developed by the parties in the first instance.

[J-24-2016] - 16
based on their application in Hopkins, it is the latter outcome which must prevail. We

also agree with Appellee and his amicus that a sentence based on an unconstitutional

statute that is incapable of severance is void. Accord Commonwealth v. Armao, 446

Pa. 325, 337-38 & n.9, 286 A.2d 626, 632 & n.9 (1972) (indicating, with reference to an

unconstitutional non-severable statute, that “the whole statutory scheme is invalid on its

face”); Michuck, 686 A.2d at 407 (“An unconstitutional statute is ineffective for any

purpose.”). See generally 16 C.J.S. CONSTITUTIONAL LAW §265 (2016) (depicting the

general rule that an unconstitutional, non-severable statute is “not a law, has no

existence, is a nullity, or has no force or effect or is inoperative” (footnotes omitted)).

Although the anomaly in Section 9718 -- i.e., the incorrect specification that the

age-of-victim factor is not an element of a Section 3123(a)(7) IDSI crime -- injects a

conceptual wrinkle into this case, it does not alter our core assessment. In this regard,

we agree with Appellee and his amicus that, under Alleyne, Section 9718 must be

treated as creating a “distinct and aggravated crime,” Alleyne, ___ U.S. at ___, 133 S.

Ct. at 2163; that the statute’s directive for judicial fact-finding attaches to that

aggravated crime notwithstanding a jury verdict; and that sentencing judges are not free

to disregard such explicit legislative mandates by substituting their own procedures.

Accord Fennell, 105 A.3d at 20. Accordingly, although the jury at Appellee’s trial plainly

decided that the victim was under sixteen years of age, the sentencing court was bound

to make its own determination at sentencing, see 42 Pa.C.S. §9718(c), but it could not

do so in a manner consistent with the Sixth Amendment to the United States

Constitution, on account of Alleyne. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2163-

64 (disapproving a judicial finding relative to a mandatory minimum sentence).5

5
The dissent authored by Justice Todd references no authority for its proposition that a
sentencing court may treat a statutorily-prescribed fact-finding duty assigned to a
judicial officer as merely a “pro forma act.” Dissenting Opinion, slip op. at 10.
(continuedN)
[J-24-2016] - 17
 We are also unable to deem the violation inherent in the application of a

sentencing statute that is unconstitutional on its own non-severable terms to be

harmless. On this subject, we reject PDAA’s contention that Pennsylvania courts

should be completely unconcerned with the unconstitutional provisions of mandatory

minimum sentencing statutes, so long as constitutional requirements can be said to

have been satisfied in the abstract. Although we realize that the Supreme Court of the

United States and other courts have found Apprendi-based errors to be harmless in

various cases, which are ably cited by the Commonwealth and its amicus, none of these

concerned a scenario in which the underlying sentencing statute was itself found to be

invalid and non-severable.6

(Ncontinued)

Obviously, we also do not share the dissent’s perspective that our approach of squarely
addressing the express, direct, and specific challenge to the underlying sentencing
provision presented by Appellee is “myopic[],” “inexplicabl[e],” or otherwise misdirected.
Dissenting Opinion, slip op. at 2, 11. Indeed, we believe that our analysis is
straightforward and rests on far firmer foundation than the dissent’s position that small
segments of a statute that is otherwise irreparably unconstitutional on its terms should
be preserved on account of an anomaly, and despite suffering from the same, integral,
explicit statutory directive for sentencing courts to perform what is now unconstitutional
judicial fact finding.

6
The dissents’ alternative approach favoring a finding of harmless error would sanction
a residual longevity in small segments of an unseverable statute requiring
unconstitutional actions on the part of judicial officers. Along these lines, such a finding
would effectively give credence to the principle advanced by the PDAA that “applying a
statute in a manner that is constitutionally erroneous but harmless is at least one
circumstance in which the statute continues to be valid.” Brief for Amicus PDAA at 10.

From our perspective, however, the prospect of enforcing a statute containing
unseverable, unconstitutional directives to judicial officers here and potentially into
perpetuity on the theory that such enforcement will be harmless on an ongoing basis is
simply untenable. Because Alleyne invalidates material requirements of this statute,
(continuedN)
[J-24-2016] - 18
 Notably, as well, from the federal perspective at least, matters of state law are

integral to determining whether, and to what extent, a state statute ultimately may

survive an Apprendi or Alleyne challenge. See, e.g., Lavitt v. Jane L., 518 U.S. 137,

139, 116 S. Ct. 2068, 2069 (1996) (per curiam) (“Severability is of course a matter of

state law.”). Accordingly, it should come as no surprise that the federal courts

frequently focus on the particular application at hand rather than structural problems

with an underlying state legislative enactment. From the state level, however, we have

not been free to avoid the essential inquiry connected with the viability of Section 9718

and other similarly patterned statutes. See, e.g., Hopkins, ___ Pa. at ___, 117 A.3d at

257-63.

We are not unsympathetic to the plight of the Commonwealth in Alleyne’s wake,

given the volume of the mandatory minimum sentences that must be stricken, and the

scale of the task of resentencing. We also appreciate that, in enacting the mandatory

minimum sentencing regime, the General Assembly had acted in good faith reliance on

the previous jurisprudence of the Supreme Court of the United States, which was

discarded by that Court in Alleyne. Nevertheless, new constitutional rules of Alleyne’s

magnitude often have unavoidable, wide-scale consequences. Against the above

backdrop, we believe that the Commonwealth also should appreciate the judiciary’s

position, in that our ability to curtail Alleyne’s ramifications is limited according to our

subordinate role within the federal-state hierarchy, as well as our co-equal status in a

Commonwealth where the legislative power is allocated to another branch.

Harkening back to Hopkins, we reiterate that it is not an appropriate function of

the judiciary to create new aggravated crimes, via severance or otherwise.

(Ncontinued)
and because those provisions are non-severable per Hopkins, the statute simply cannot
be enforced by the judiciary in any respect.

[J-24-2016] - 19
Transformation of a sentencing factor which the Legislature has specifically mandated

“shall not be an element of the crime” into an offense element is simply beyond our

constitutionally prescribed authority and purview. Accord Hopkins, ___ Pa. at ___, 117

A.3d at 262.7

In summary, we reaffirm Hopkins and find that Section 9718 is irremediably

unconstitutional on its face, non-severable, and void.

The order of the Superior Court is affirmed.

Justices Baer, Donohue and Wecht join the opinion with respect to Parts I and

II(B). Justice Donohue joins the opinion with respect to Part II(A).

Justice Baer files a concurring opinion, joined by Justice Wecht.

7
In response to Justice Todd’s portrayal of a “windfall” arising from our present holding,
see Dissenting Opinion, slip op. at 13, we observe that Appellant stands convicted of
three counts of felonies of the first degree, four counts of felonies of the second degree,
and one count of a felony of the third degree. Given that the entire sentencing plan
must be reevaluated in instances in which a defendant challenges one of several
interdependent sentences, see Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517
A.2d 1280, 1283 (1986), on remand Appellee may in fact receive exactly the same
aggregate term of sentence that previously was imposed. Along these lines, Appellant
will again be exposed to a potential maximum aggregate sentence -- exclusive of the
mandatory minimum sentencing provisions -- of up to 107 years’ imprisonment. See 18
Pa.C.S. §1103 (delineating the 20-year maximum sentence for felonies of the first
degree, the 10-year maximum sentence for felonies of the second degree, and the
seven-year maximum sentence for felonies of the third degree). Furthermore, should
Appellant somehow garner a “windfall” from the sentencing court, the Commonwealth
has the ability to seek review of the substantial question that obviously would be
presented in the Superior Court. See 42 Pa.C.S. §9781(b).

Every day, the above individualized, discretionary sentencing regime operates to
facilitate fair and appropriate sentencing for criminal defendants across Pennsylvania.
Thus, we do not find the dissent’s speculative depiction of a windfall to be well taken.

[J-24-2016] - 20
Justice Todd files a dissenting opinion, joined by Justice Dougherty.

Justice Dougherty files a dissenting opinion.

[J-24-2016] - 21