Commonwealth v. Foster

*171DISSENTING OPINION BY

SHOGAN, J.:

¶ 1 Although the majority presents a reasoned analysis of whether Appellant’s challenge to the application of the mandatory minimum sentence pursuant to 42 Pa. C.S.A. § 9712(a) is an attack on the legality of his sentence, I am constrained to find waiver in this case by our Supreme Court’s decision in Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007) and the established case law in this Commonwealth regarding sentence illegality. Accordingly, I respectfully dissent.

¶2 Notably, Appellant does not argue that the principles of waiver do not apply to his claim. Rather, Appellant requests that this Court exercise its equitable powers and remand this matter to the trial court to allow Appellant to file a post-sentence motion to modify his sentence nunc pro tunc in order to properly raise his claim before the trial court or, alternatively, apply principles of equity and remand for resentencing. See Brief for Appellant, 8-15. Despite this, the majority treats Appellant’s claim as a non-waivable challenge to the legality of his sentence and proceeds to address the merits of Appellant’s claim. As noted by the majority in Dickson, I find this approach to be problematic, Id. at 370, 918 A.2d at 99, as well as contrary to our Supreme Court’s treatment of the identical issue in Dickson and established case law regarding sentence illegality. Furthermore, such an approach potentially opens the floodgates to sentence illegality challenges under Dickson when our Supreme Court has expressly refused to do so.

¶3 Pursuant to our Supreme Court’s decision in Dickson (decided four months after Appellant in this case was sentenced and holding that the mandatory minimum sentence enhancement of section 9712 does not apply to an unarmed accomplice), Appellant contends that the mandatory minimum sentence provision of section 9712 was not applicable to him because Appellant did not actually possess the firearm during the commission of the crime. Thus, Appellant argues that he should have been sentenced under the sentencing guidelines and not the provisions of section 9712. However, as noted above, we must first consider whether the claim presented by Appellant is properly before us for review before we may address the merits of Appellant’s issue.

¶ 4 Generally, pursuant to Pennsylvania Rule of Appellate Procedure 302(a), “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Moreover, our Supreme Court has explained “[i]t is well-settled that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at all stages of adjudication, including at trial and on direct appeal.” Commonwealth v. Sneed, 587 Pa. 318, 331, 899 A.2d 1067, 1075 (2006) (citing Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1005 (2002)).

¶ 5 The majority concludes that Appellant is relieved of his responsibility to preserve the issue because his claim challenges the legality of his sentence, rather than the discretionary aspects of his sentence. The distinction is important because it has long been the rule in this Commonwealth that “[cjlaims concerning the illegality of the sentence are not waivable.” Commonwealth v. Vasquez, 560 Pa. 381, 387, 744 A.2d 1280, 1284 (2000) (quoting Commonwealth v. Smith, 528 Pa. 380, 384, 598 A.2d 268, 270 (Pa.1991)). Conversely, issues challenging the discretionary aspects of sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Commonwealth v. *172Barnhart, 933 A.2d 1061, 1066-1067 (Pa.Super.2007) (citing Commonwealth v. McAfee, 849 A.2d 270 (Pa.Super.2004)). Absent such efforts, an objection to a discretionary aspect of a sentence is waived. Barnhart, 933 A.2d at 1067.

¶ 6 The classic formulation of an illegal sentence, as established by our Supreme Court, is one that exceeds the statutory limits. See Commonwealth v. Aponte, 579 Pa. 246, 266, 855 A.2d 800, 812-813 (2004) (Justice Castille (now Chief Justice), concurring) (presenting a comprehensive discussion of sentence illegality and utilizing the term “classic formulation of sentence illegality” to define an illegal sentence as one that exceeds the statutory limits and no more); see also, Commonwealth v. Bradley, 575 Pa. 141, 149, 834 A.2d 1127, 1131 (2003) (“An illegal sentence is one that exceeds the statutory limits.”); Vasquez, 560 Pa. at 388, 744 A.2d at 1284 (“If a sentence is within the statutory limits, it is legal.”). This Court discussed the types of sentences which have been considered to be illegal more fully in Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super.2007) (en banc) (filed 8/2/07), where we stated:

[W]e have established the principle that “the term ‘illegal sentence’ is a term of art that our Courts apply narrowly, to a relatively small class of eases.” This class of cases includes: (1) claims that the sentence fell “outside of the legal parameters prescribed by the applicable statute”; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). These claims implicate the fundamental legal authority of the court to impose the sentence that it did.

Most other challenges to a sentence implicate the discretionary aspects of the sentence. This is true even though the claim may involve a legal question, a patently obvious mathematical error, or an issue of constitutional dimension. Moreover, the mere fact that a rule or statute may govern or limit the trial court’s exercise of discretion in sentencing does not necessarily convert the claim into one involving the legality of the sentence. For example, we recently held that the denial of the right of allocution was a challenge to the discretionary aspects of the sentence, even though both a statute and a rule of criminal procedure mandated that a court provide allocution before sentencing.

Robinson, 931 A.2d at 21 (citations and footnotes omitted, emphasis added). Notably, the en banc court in Robinson fails to include a Dickson challenge as one of the “small class of cases” that “implicate the fundamental legal authority of the court to impose the sentence it did,” even though Robinson was filed after Dickson was decided by our Supreme Court on March 29, 2007.6

¶ 7 Appellant is not claiming that the sentence fell outside of the parameters *173prescribed by a statute,7 or that the claim implicates merger/double jeopardy or Ap-prendi principles.8 He also does not generally argue that the trial court lacked the fundamental legal authority to impose the sentence that it did. Furthermore, upon careful scrutiny, one can conclude that the “relatively small class of cases” cited in Robinson actually fall within our Supreme Court’s single definition, or classic formulation, of sentence illegality, i.e., they exceed the statutory limits that would otherwise be applicable.9

¶ 8 This definition of sentence illegality was recently reiterated by former Justice Newman in her majority opinion in McCray v. Pa. Dept. of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005), in which four justices joined the majority and two filed separate concurring opinions (one of which also joined the majority). When directly presented with the issue of whether or not a sentence was illegal within the context of probation revocation, Justice Newman’s majority concluded that because the new sentence imposed upon probation revocation was “significantly less than the maximum probation revocation sentence” possible, “the concerns regarding the imposition of an illegal sentence ... are not at issue in the case. McCray, 872 A.2d at 1132 (emphasis added). In their concurrences, Chief Justice Castille concluded that the YOP (violation on parole) sentence was “legally sound” because it was less than the statutory maximum, and Justice Saylor seemed to adopt the Post Conviction Relief Act (PCRA) definition of illegal sentence as contained in 42 Pa.C.S.A. § 9542(a)(2)(vii), i.e., one that is greater than the lawful maximum. Thus, together, the majority and two concurrences appeared to present a unified view that a claim of illegality must be based on a sentence that exceeds the statutory limits.

¶ 9 Our Supreme Court was presented with an opportunity to expand upon this classic formulation in Dickson but expressly declined to do so. In initially addressing the identical issue presented by the case sub judice, the majority stated, “Before reaching the merits, ... we must determine whether Appellant waived his challenge to § 9712 by failing to raise it first in the trial court.” Dickson, 591 Pa. at 367, 918 A.2d at 97 (emphasis added). The majority then proceeded to explain that, “if 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.” Id. at 370, 918 A.2d at 99. Immediately afterwards, and therefore implicitly concluding that the legality of sentence was not implicated, the majority en*174gaged in an extensive analysis of whether Dickson had preserved the issue for appellate review. The majority in Dickson held that the issue was preserved in the trial court and thus continued with its review of the merits of the case. The dissent in Dickson, authored by Justice Eakin and joined by Chief Justice Castille, agreed that the issue presented does not implicate the legality of a sentence but concluded, contrary to the majority, that Dickson had waived the issue for appellate review.

¶ 10 Here, the majority attempts to circumvent this rational conclusion by relying upon a litany of cases addressing various issues challenging criminal sentences. The majority first considers several cases authored by our Supreme Court and comes to the broad conclusion that the application of a mandatory minimum sentence relates to the legality of the sentence. However, the cases relied upon by the majority are distinguishable from the instant matter. Commonwealth v. Vasquez and Commonwealth v. Smith, supra., address the ability of the Commonwealth to contest the failure of the trial court to apply statutorily prescribed sentencing provisions, thus taking the sentences outside of the statutorily prescribed limits and placing them within the classic formulation of sentence illegality. Moreover, the statutes in question in Vasquez (18 Pa.C.S.A. § 7508(d)) and Smith (42 Pa.C.S.A. § 9714(e) now § 9714(f)) involved appeals by the Commonwealth, not a defendant, and each statute contains specific authority providing the Commonwealth with the right to appellate review when the sentencing court fails to apply the relevant provision. Likewise, I find In re M.W., 555 Pa. 505, 725 A.2d 729 (1999), to be inapposite because it pertains to a challenge to a juvenile court’s actual statutory authority to order the restitution involved.10 Therefore, M.W. presents a divergent procedural posture, which makes it unrelated to the matter presently before this Court.

¶ 11 The majority also turns to various decisions of this Court to support its conclusion. Initially, I observe that Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super.2008), is inapplicable here because, as in Vasquez and Smith, the case involved a Commonwealth appeal as of right from the failure of the trial court to impose a mandatory minimum sentence. Such right to appeal by the Commonwealth is set forth in the statute at 42 Pa.C.S.A. § 9712(d). Furthermore, one can argue that, by failing to provide for the statutory right to appellate review for a defendant challenging the application of a mandatory minimum under section 9712 while expressly doing so for a Commonwealth challenge to the failure to apply the minimum, the General Assembly consciously intended to preclude such review. As stated by our Supreme Court, when statutory language is clear, “it generally furnishes the best indication of legislative intent.” Dickson, 591 Pa. at 372, 918 A.2d at 100.

¶ 12 The remaining cases cited by the majority, Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super.2007), Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super.2007), Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super.2007), and Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super.2006), each contain broad statements indicating that a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the *175sentence. Upon further scrutiny, however, it appears that those cases fail to cite applicable authority to support that premise. Specifically, Harley and Johnson quote Commonwealth v. Littlehales, 915 A.2d 662, 664 (Pa.Super.2007) (filed Jan. 5, 2007), a pr e-Dickson decision, for the proposition that “[o]rdinarily, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence.” In turn, Little-hales cites Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super.2006) (en banc) to support the statement. However, upon thorough review, Jacobs does not appear to stand for such an assertion. Rather, Jacobs, in addressing the issue of whether a trial court’s failure to provide a defendant with her right to allocution implicates the legality of sentence, simply noted that failure to impose a mandatory minimum sentence implicates the legality of sentence. Therefore, the broad statement in Little-hales, implying that challenges to the application of a mandatory minimum sentence implicate the legality of the sentence, is unsupported by the cited authority and pre-dates our Supreme Court’s decision in Dickson. Thus, I believe that reliance on Harley and Johnson is flawed.

¶ 13 I also believe that Stafford is inapplicable because it addressed a sentence under the Motor Vehicle Code’s mandatory minimum sentencing provisions for multiple DUI convictions, 75 Pa.C.S.A. § 3806. Thus, the court was interpreting the imposition of a sentence under a recidivist statute. Such statutes have been considered to implicate the legality of sentence under our classic formulation of an illegal sentence. See Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005) (application of “three strikes law” implicated the legality of sentence because it enlarged the lawful statutory maximum).

¶ 14 Finally, Bongiorno, like Littlehales, offers a misstatement of the law. The Court in Bongiomo addressed the application of the mandatory minimum sentence provision set forth under 18 Pa.C.S.A. § 6317, pertaining to drug free school zones. Prior to addressing the Appellant’s claim, the Court cited Commonwealth v. Lewis, 885 A.2d 51, 55 (Pa.Super.2005), for the broad proposition that “[c]hallenges to a trial court’s application of a mandatory sentencing provision implicate the legality of sentence.” However, Lewis, once again a pr e-Dickson decision, pertains to a Commonwealth appeal of the trial court’s failure to impose a mandatory minimum sentence relating to drug-free school zones (18 Pa.C.S.A. § 6317), which, incidentally, also provides the Commonwealth with the right to appellate review, 18 Pa.C.S.A. § 6317(d). Accordingly, reliance on Bon-giomo is flawed.

¶ 15 For the foregoing reasons, it is my belief that majority’s conclusion is unsound. Consequently, I would rely on this Court’s en banc decision in Robinson, and apply the analysis set forth therein. As the Court in Robinson concluded:

Appellant’s claim does not fall within the “narrow class of cases” described above [in Robinson ]; he is not claiming that the sentence fell outside of the parameters prescribed by a statute, or that the claim implicates double jeopardy or Apprendi principles. More generally, he is not arguing that the trial court lacked the legal authority/jurisdiction to impose a sentence of that length or type.

Robinson, 931 A.2d at 21.

¶ 16 Accordingly, I believe the more prudent course in addressing the claim before us would be to follow the guidance of our Supreme Court in Dickson, review this issue as a challenge to the discretionary aspects of Appellant’s sentence and not a challenge to the legality of his sen*176tence, and make a determination of whether Appellant preserved the issue for review. I believe that this is the only course consistent with our Supreme Court’s treatment of the identical issue in Dickson.11

¶ 17 While the majority in this matter concludes that Appellant’s claim raises a challenge to the legality of Appellant’s sentence, I conclude that Appellant’s claim implicates a challenge to the discretionary aspects of his sentence. Therefore, in order for this Court to address the merits of the claim, Appellant would have had to raise his claim challenging the applicability of section 9712 either at the sentencing hearing or in timely post-sentence motions. See Pa.R.Crim.P. 720. However, my review of the record reflects that Appellant did not raise this issue before the trial court in either instance, a point acknowledged by Appellant and which he attempts to correct by requesting remand for filing of post-sentence motion nunc pro tunc. In fact, scrutiny of the sentencing transcript indicates that defense counsel essentially conceded that imposition of the mandatory minimum sentence was appropriate in this case. N.T., 11/30/06, 4. Review of the record further reflects that Appellant raised this issue for the first time in his statement filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Thus, because this issue was not preserved by raising it with the trial court either at the time of sentencing or in timely post-sentence motions, I conclude that the issue is waived and would affirm the judgment of sentence.

. Since the Diclcson decision was rendered, this Court has been presented with a Dickson challenge by a defendant in only one published opinion. In Commonwealth v. Phillips, 946 A.2d 103, (2008), the appellant relied upon Dickson to argue that the trial court erred in applying a deadly weapons enhancement to him because he was an unarmed co-defendant. The panel in Phillips considered the claim to be a challenge to the discretionary aspects of sentencing. In doing so, the panel found Dickson to be distinguishable based on the specific circumstances of the crimes and the fact that the trial court in Phillips sentenced the appellant pursuant to the deadly weapon enhancement of the sentencing guidelines, 204 Pa.Code 303.10(a)(1), rather than 42 Pa.C.S.A. section 9712. Thus, Phillips is admittedly not directly on point.

. Appellant’s sentence is within the statutory limits. Appellant was sentenced to terms of incarceration of five to ten years on both the robbery conviction and the conspiracy conviction, which are within the 20-year statutory maximum for these first degree felony convictions. 18Pa.C.S.A. § 1103(1).

. This Court has held that the imposition of a mandatory minimum sentence did not violate Apprendi because Pennsylvania has an indeterminate sentencing scheme. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super.2006) (en banc). Moreover, Appellant does not argue an Apprendi violation.

.See, e.g., the following cases cited by the majority: Commonwealth v. Andrews, 564 Pa. 321, 329, 768 A.2d 309, 313 (2001) (double jeopardy prohibition serves to “prevent the sentencing court from prescribing greater punishment than the legislature intended”) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)); Commonwealth v. Gordon, 596 Pa. 231, 234, 942 A.2d 174, 175 n. 1 (2007) (noting that, when asserting an Apprendi violation, a defendant is claiming that "facts, ‘other than the fact of a prior conviction,’ that subject a defendant to any additional penalty beyond a statutory maximum must be submitted to a jury”).

. See In re L.A., 853 A.2d 388, 393-394 (Pa.Super.2004) (explaining the fundamentally different nature of juvenile and criminal proceedings and rejecting the Commonwealth’s claim that absence of a Pennsylvania Rule of Appellate Procedure 2119(f) statement in the appellant’s brief precluded appellate review of the appellant’s issue).

. I must note that the formal purpose of the Superior Court is to effectuate the decisional law of the Supreme Court as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985).