[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
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: February 21, 2018
I agree with the Opinion Announcing the Judgment of the Court (“OAJC”) that 42
Pa.C.S. §9718(a)(3) (“A person convicted of the following offenses shall be sentenced
to a mandatory term of imprisonment …”) “simply cannot run afoul of a constitutional
rule disapproving judicial fact-finding related to ‘facts that increase mandatory minimum
sentences.’” OAJC, slip op. at 4, quoting Alleyne v. United States, 570 U.S. 99, 116
(2013). The rule established in Alleyne is not violated when judicial fact-finding is not
necessary prior to imposing a mandatory minimum sentence, regardless of whether the
statutory provision at issue is accompanied by a “proof at sentencing” provision like the
one found at 42 Pa.C.S. §9718(c). See OAJC, slip op. at 4. I therefore concur in the
result reached by the OAJC.
Respectfully, however, I cannot agree with the OAJC’s reasoning distinguishing
the Alleyne analyses of Section 9718(a)(3), at issue in this case, and Section
9718(a)(1), at issue in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). In my view,
the OAJC does not sufficiently cabin the holding in Wolfe and I maintain my position
Wolfe was wrongly decided. See, e.g., Wolfe, 140 A.3d at 672 (Dougherty, J.,
dissenting) (“I have difficulty upsetting the judgment below without considering the
actual trial and litigation of the matter … this particular defendant was afforded all the
United States Constitution could be said to mandate at his trial”).
Although Section 9718(a)(1) may violate Alleyne as applied to certain
defendants, “[t]he focus for purposes of Alleyne is not on the sentencing statute, but,
rather, on whether a defendant has been denied his or her right to a trial by jury on the
facts triggering a sentence.” Wolfe, 140 A.3d at 669 (Todd, J., dissenting). Today we
correctly hold appellee’s right to a jury trial was satisfied because judicial fact-finding
was unnecessary, but the same was true in Wolfe. Wolfe was convicted of involuntary
deviate sexual intercourse under 18 Pa.C.S. §3123(a)(7), an element of which is that
the complainant is under sixteen years of age. Wolfe was then sentenced under
Section 9718(a)(1) which provides for a mandatory minimum sentence of not less than
ten years for those convicted under 18 Pa.C.S. §3123 when the victim is under sixteen
years of age. This “additional fact” of the age of the victim was found beyond a
reasonable doubt by the jury in Wolfe’s case and thus judicial fact-finding was
unnecessary regardless of the “proof at sentencing” provision found at Section 9718(c).
Pursuant to the OAJC’s analysis of Section 9718(a)(3) in this case, an analysis in which
I join, the Alleyne rule could not have been violated in Wolfe, and in my view, that
decision should be overturned.
Justice Todd joins Justice Dougherty’s concurring opinion
[J-41D-2017] [OAJC: Saylor, C.J.] - 2