[J-41D-2017] [OAJC:Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 86 MAP 2016
:
Appellant : Appeal from the Order of the Superior
: Court at No. 2125 MDA 2014 dated July
: 14, 2015, Reconsideration Denied
v. : September 17, 2015, Vacating and
: Remanding the Judgment of Sentence
: of Schuylkill County Court of Common
ANGEL ANTHONY RESTO, : Pleas, Criminal Division, at No. CP-54-
: CR-0001840-2013 dated November 24,
Appellee : 2014.
:
: ARGUED: May 9, 2017
DISSENTING OPINION
JUSTICE MUNDY DECIDED: February 21, 2018
Resto was sentenced pursuant to 42 Pa.C.S. § 9718(a)(3), which imposes a
mandatory minimum sentence for persons convicted of certain offenses including 18
Pa.C.S. § 3121(c), the offense which Resto was found guilty of by a jury. Section
9718(c) of the sentencing statute provides as follows:
(c) Proof at sentencing.-- the provisions of this section shall
not be an element of the crime and notice of the provisions
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 section shall be determined at sentencing. The court
shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity
to present any necessary additional evidence and shall
determine, by a preponderance of the evidence, if this
section is applicable.
42 Pa.C.S. § 9718(c). This or similar language has been the subject of scrutiny in this
Commonwealth since the decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). I
have maintained my personal view that statutes with the above language may be
applied in certain situations, notwithstanding the language that deems sentencing
enhancing facts as non-elements and directs the sentencing courts to find these non-
elemental facts by a preponderance of the evidence, without running afoul of Alleyne.
However, as a matter of adhering to this Court’s precedent regarding mandatory
minimum sentencing schemes in Pennsylvania, I would conclude Resto’s judgment of
sentence should be vacated and remanded for resentencing. Accordingly, I dissent.
In Alleyne, the United States Supreme Court held that pursuant to the rights
afforded under the Sixth Amendment to the United States Constitution, any fact which
by law increases the mandatory minimum sentence for a crime is an element of the
offense and therefore must be, inter alia, submitted to a jury and found beyond a
reasonable doubt. Simply put, sentencing statutes may no longer tie the imposition of a
mandatory minimum sentence to a fact found by a sentencing court by a preponderance
of the evidence. Following the Alleyne decision, the courts of this Commonwealth were
tasked with how to reconcile the new rule with a number of similarly-patterned
Pennsylvania sentencing statutes that direct the sentencing court to impose a
mandatory minimum sentence if it finds an operative fact by a preponderance of the
evidence at sentencing. See, e.g., 42 Pa.C.S. § 9713.
For example, in Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014),
the Superior Court considered the post-Alleyne constitutional viability of 42 Pa.C.S.
§ 9718(a)(3), the sentencing statute at issue in this case. The court concluded the
mandatory minimum sentence could withstand an Alleyne challenge because “the jury
specifically found the element required to impose the mandatory minimum sentence.”
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Matteson, 96 A.3d at 1066. Implicit in the panel’s reasoning in Matteson is the notion
that the statute could be applied without regard to the procedure the Legislature crafted
that required the essential fact be found at sentencing, by a preponderance of the
evidence, and defining the fact as a sentencing factor rather than as an element of the
underlying offense. See also Commonwealth v. Tobin, 89 A.3d 663, 665 n.1 (Pa.
Super. 2014) (concluding Alleyne was not violated by the imposition of a mandatory
minimum based on the amount of marijuana found on a drug dealer pursuant to 18
Pa.C.S. § 7508(a)(1)(i) where defendant pleaded guilty and admitted to possessing
twenty marijuana plants). Seemingly, then, the relevant inquiry appeared to center on
whether there was a violation of the Alleyne rule as applied to each defendant, i.e.,
whether it was necessary for the sentencing court to find the operative fact or whether it
had been conceded by the defendant or otherwise found by the jury and not specifically
on the statutorily proscribed procedure at sentencing. However, in Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super 2014) (en banc), the Superior Court squarely
addressed whether the legislatively enacted sentencing procedure at 42 Pa.C.S.
§ 9712.1 could be severed from the rest of the statute which articulated the necessary
fact to impose the mandatory minimum sentence.1 The court concluded, “[p]lainly,
1 In relevant part, Section 9712.1 provides:
(a) Mandatory sentence.-- Any person who is convicted of
section 13(a)(30) of [35 P.S. § 780-113], known as The
Controlled Substance, Drug, Device and Cosmetic Act, when
at the time of the offense the person or the person’s
accomplice is in physical possession or control of a firearm,
whether visible, concealed about the person or the person’s
accomplice or within the actor’s or accomplice’s reach or in
close proximity to the controlled substance, shall likewise be
sentenced to a minimum sentence of at least five years of
total confinement.
...
(continued…)
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Section 9712.1 can no longer pass constitutional muster” because it requires the
sentencing court to increase the minimum sentence if it finds that a defendant was
dealing drugs while possessing or in close proximity to a firearm. Id. at 98. It continued
that, under the mandates of Alleyne, the fact increasing the minimum sentence, i.e., the
possession of a firearm, must be included in the indictment and found by a jury. Id. In
rejecting the Commonwealth’s position that the constitutionally offensive subsection
could be excised and the remainder of the statute applied if a sentencing jury is
empaneled to find the extra-judicial fact, the Newman Court concluded that such action
would be usurping the role of the Legislature: “[w]e find 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.” Id. at 102.
As a member of the en banc panel in Newman, I agreed that Newman’s
sentence was unconstitutional. However, I disagreed with the majority’s holding that the
entire sentencing statute was rendered unconstitutional by Alleyne. See id. at 104
(Mundy, J., concurring). I expressed my view that voiding the statute as a whole was
contrary to the Statutory Construction Act, 1 Pa.C.S. § 1925.2 Specifically, I differed
(…continued)
(c) Proof at sentencing.-- Provisions of this section shall
not be an element of the crime, and notice thereof 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 section shall
be determined at sentencing. The court shall consider any
evidence presented at trial and shall afford the
Commonwealth and the defendant an opportunity to present
any necessary additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1
2 Section 1925 provides:
(continued…)
[J-41D-2017] [OAJC: Saylor, C.J.] - 4
with the majority’s reasoning that there was no constitutional way to apply the
mandatory minimum sentence pursuant Section 9712.1 once the “proof at sentencing
provision” was stricken:
Although [Section 9712.1 creates] a new aggravated
offense, it does not follow that there is “no mechanism” for its
application in future cases. To the contrary, Alleyne has
already specified the mechanism for such an application.
The jury should be instructed on the elements of the core
crime, in this case [possession with intent to deliver a
controlled substance], and the aggravated offense, and the
factfinder is free to find a defendant guilty or not guilty of the
core and/or the aggravated offense beyond a reasonable
doubt as required by the Sixth Amendment. Thereafter, the
trial court shall sentence the defendant consistent with the
jury’s verdict, as required by the Sixth Amendment. . . .
Section 9712.1(a) gives the elements of the aggravated
offense and Alleyne and pre-existing procedure provides the
method of implementation, a jury verdict with proof beyond a
reasonable doubt. Therefore, no special mechanism is
required.
Id. at 105.
(…continued)
§ 1925. Constitutional construction of statutes
The provisions of every statute shall be severable. If any
provision of any statute or the application thereof to any
person or circumstance is held invalid, the remainder of the
statute, and the application of such provision to other
persons or circumstances, shall not be affected thereby,
unless the court finds that the valid provisions of the statute
are so essentially and inseparably connected with, and so
depend upon, the void provision or application, that it cannot
be presumed the General Assembly would have enacted the
remaining valid provisions without the void one; or unless the
court finds that the remaining valid provisions, standing
alone, are incomplete and are incapable of being executed
in accordance with the legislative intent.
1 Pa.C.S. § 1925.
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In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), this Court provided
further guidance on the issue of the severability of a constitutionally infirm, but
legislatively mandated, sentencing procedure, where the sentencing judge is assigned
the role of factfinder at sentencing. Our analysis led us to decidedly endorse the
severance rationale employed in Newman. Hopkins was convicted of possession with
intent to deliver and sentenced to a mandatory minimum sentence of two years’
imprisonment pursuant to 42 Pa.C.S. § 6317(a), based on a judicial finding that the drug
offense occurred within 1,000 feet of a school. As with other sentencing statutes
rendered void under Alleyne and Newman, Section 6317 provided “[t]he provisions of
this section shall not be an element of the crime. . . . The court shall consider evidence
presented at trial, shall afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine by a preponderance of
the evidence if this section is applicable.” 18 Pa.C.S. § 6317(b).
Recognizing that the Statutory Construction Act creates a presumption that
statutes are severable and shall be enforced unless the valid provisions of the statute
are inseparably connected with and dependent upon the void provisions, this Court
examined each subsection of the statute to ascertain which provisions were void and
whether the mandatory minimum could be applied without consideration of the portions
that ran afoul of Alleyne. This Court held that the provisions specifying the proximity of
the drug transaction to the school and the age of the defendant did not offend Alleyne;
however, the remainder of the statute, given the Legislature’s clear intent that it was a
sentencing statute, was invalid and could not be severed.
In sum, as detailed above, we find that numerous provisions
of Section 6317 are unconstitutional in light of the United
States Supreme Court 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
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sentencing, that the sentencing court performs factfinding,
that the applicable standard is preponderance of the
evidence, and that the Commonwealth has the right to
appeal where the imposed sentence was found to be in
violation of the statute--are now infirm. . . .
[T]he General Assembly has unambiguously expressed its
intent regarding the nature of this mandatory minimum
sentencing statute: it is a sentencing statute. . . . 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. 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
this 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
features that allow it to function as a sentencing statute.
Hopkins, 117 A.2d at 259-60 (footnote and some citations omitted; emphasis in
original).
This Court again confronted the effect of Alleyne on a mandatory minimum
sentencing statute in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).3 Wolfe was
convicted of involuntary deviate sexual intercourse with a complainant who is less than
16 years of age, 18 Pa.C.S. § 3123(a)(7), and received a mandatory minimum sentence
3 Wolfe came to this Court following the Commonwealth’s appeal from the published
Superior Court decision in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014).
Writing for the panel of the Superior Court, I concluded Wolfe was entitled to
resentencing based on the decision in Newman. I made clear that despite my
disagreement with Newman’s severability analysis, “it is binding on the [Superior Court]
and must be applied in a principled manner in all future cases unless reversed by the
Supreme Court.” Wolfe, 106 A.2d at 803 n. 4.
[J-41D-2017] [OAJC: Saylor, C.J.] - 7
pursuant to Section 9718(a), which provides that “[a] person convicted of [18 Pa.C.S. §
3123] when the victim is less than 16 years of age shall be sentenced to” a mandatory
term of not less than ten years. See 42 Pa.C.S. § 9718(a)(1) (emphasis added). This
presented an incongruity not faced in Newman or Hopkins because, in each of these
cases, the extra-judicial fact that the sentencing court was required to consider was not
subsumed within the elements of the underlying offense. However, pursuant to Section
9718, despite subsection (c)’s directive that “provisions of this section shall not be an
element of the crime” the requisite fact necessary to impose the mandatory minimum
sentence, i.e., the age of the victim, was included as an element of the crime for which
Wolfe was being sentenced. Compare 42 Pa.C.S. § 9718(a)(1) with 18 Pa.C.S.
§ 3123(a)(7). Accordingly, the Commonwealth posited, broadly, that there was no
violation of Alleyne in the first instance because Section 9718(a) standing alone, could
operate to impose the sentence without consideration of the other violative provisions
based on the triggering fact being an element of the offense. We disagreed.
[W]e reaffirm our position in Hopkins in all material respects
and conclude that it applies here. [W]e 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¸ 117 A.3d at 259-262 (applying the severance
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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, based on
their application in Hopkins, it is the latter outcome which
must prevail.
Wolfe, 140 A.3d at 660-61. Moreover, we noted that a sentence based on a statute
found to be non-severable and unconstitutional is void. Id. at 661. We explained the
fact that the jury at Wolfe’s trial found the victim to be less than 16 years of age did not
alter the procedure in place to impose the mandatory minimum sentence: “although the
jury at [Wolfe’s] trial plainly decided that the victim was under 16 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 Alleyne.” Id. The
Court held that “Section 9718 is irremediably unconstitutional on its face, non-severable,
and void.” Id. at 663.
This Court granted review in this matter to revisit the constitutionality of Section
9718. In my view, the answer has been foreshadowed by the Hopkins decision and
unequivocally answered by Wolfe. Notwithstanding the facial absurdity of deeming a
conviction for which one is being sentenced as an extra-judicial fact, this Court has
declared “Section 9718 does plainly and explicitly require judicial fact-finding in its
subsection (c). . . . Moreover, since subsection (c) is integral to the statute, Section
9718(a) does not stand alone.” Id. at 660-61 (emphasis added).
The Opinion Announcing the Judgment of the Court (“OAJC”) cannot be
reconciled with the jurisprudence established in Hopkins and Wolfe. Those decisions
ground their analyses in principles of severance, highlighting, for instance, the
legislature’s apparent intent in crafting the schemes and the prominence of the relevant
subsection delineating the proof-at-sentencing procedure. See Hopkins, 117 A.2d at
259; Wolfe, 140 A.3d at 660-61. Because of the Court’s narrow focus on the
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severability of the offending subsection, the Court has somewhat divorced itself from the
broader and foundational question of whether the requirements of Alleyne were met and
instead held as a matter of Pennsylvania’s severability jurisprudence that the statutes
were void. Cf. Wolfe, 140 A.3d 666-67 (Todd, J., dissenting) (disagreeing that Wolfe’s
sentence could be unconstitutional where the operative fact was an element of the
underlying offense because he “received the benefit of every constitutional right
recognized by the high court in Alleyne.”).
Writing on a clean slate, I would hold Resto is not entitled to relief, just as I have
maintained that sentencing statutes are severable and the relevant inquiry is whether
the mandates of Alleyne have been satisfied. See Newman, 99 A.3d at 104-05 (Mundy,
J., concurring); see also Commonwealth v. Fennel, 105 A.3d 13, 18 n. 3 (Pa. Super.
2014); Commonwealth v. Cardwell, 105 A.3d 748, 752 n. 2 (Pa. Super. 2014).
However, the slate is not clean, and this Court has unambiguously held that there are
no set of circumstances under which these sentencing statutes may be applied in this
Commonwealth.
The OAJC posits that a conviction returned by a jury “is not the same as an
aggravating fact.” OAJC at 4. Further, that the conviction itself serves as “a
contemporaneous jury determination” and therefore the Alleyne concern of facts
determined at sentencing is not present. Id. It then concludes that the presumption of
severability embodied in the Statutory Construction Act remains operative for this
discrete subsection. Id. at 5. Respectfully, when read with Wolfe, I agree with my
concurring colleagues that these points are distinctions without any meaningful
difference. See Justice Dougherty’s Concurring Opinion at 1-2; Justice Todd’s
Concurring Opinion at 1; 9-13.
[J-41D-2017] [OAJC: Saylor, C.J.] - 10
Directly addressing the recent decision from this Court in Wolfe, which declared
Section 9718 void on its face, the OAJC suggests it employed “loose language” without
fully considering the operation of Section 9718(a)(3) and further implying that language
not specifically tailored to Section 9718(a)(1) should not be closely considered because
judicial-drafting is frequently done without consideration of its consequences. Id. at 7;
see id. at 7 n. 3. The suggestion that the specific and clear holding of Wolfe was a
result of some failure of this Court to foresee how it may be applied in future cases is
belied by the decision itself. Indeed, from a dissenting posture, Justice Todd specifically
noted that convictions themselves serve as the predicate fact for operation of the
mandatory minimum. Wolfe, 140 A.3d 651, 665 n. 3 (Todd, J., dissenting). The Court
nonetheless determined that severability principles precluded the imposition of any
mandatory minimum sentence under Section 9718. Plainly, the same result is
compelled here.
The Wolfe Court, following the decision in Hopkins, held that the procedural
mandates of Section 9718 are so interwoven with the substantive provisions as to be
non-severable and facially unconstitutional. Wolfe, 140 A.3d at 663. Furthermore, this
Court recently acknowledged that any mandatory sentencing procedures fashioned in
this manner are no longer valid in Pennsylvania.
As that sentencing provision [42 Pa.C.S. § 9712.1] has
been rendered unconstitutional on its face by Hopkins and
Wolfe, it is as if that statutory authority never existed. See
Wolfe, 140 A.3d at 661 (quoting 16 C.J.S. Constitutional Law
§ 265 (2016) (“[A]n unconstitutional, non-severable statute is
‘not law, has no existence, is a nullity, or has no force or
effect or is inoperative.’”).
Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016).
In my judgment, applying the state law principles of severance to Section 9718
as this Court has in Hopkins and Wolfe, there is no statutory authority to impose the
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sentence.4 Thus, I would conclude the sentence is illegal and was properly vacated.
See Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006).
Accordingly, I dissent.
4 As noted throughout, since the courts began grappling with Alleyne-premised
challenges, I have been of the view that as long as the factfinder decides the predicate
fact beyond a reasonable doubt, a sentencing court may impose a mandatory minimum
sentence. However, I have equally recognized the importance of applying legal
precedent in a principled and even manner. In my judgment, because the bench and
the bar rely on this Court to provide clear guidance on legal issues, we should strive to
adhere to the doctrine of stare decisis. See Stilp v. Commonwealth, 905 A.2d 918,
966–67 (Pa. 2006).
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