Commonwealth v. Line

OPINION BY

McCAFFERY, J.:

¶ 1 Appellant, Michael Lane, appeals from the judgment of sentence imposed *35after a jury convicted him of three counts of robbery, two counts of aggravated assault, and one count of possessing an instrument of crime.1 Specifically, Appellant argues that a jury, rather than the judge, should have determined whether to sentence Appellant to life imprisonment without the possibility of parole, pursuant to 42 Pa.C.S.A. § 9714. We conclude that because the protections of the Sixth and Fourteenth Amendments of the United States Constitution do not extend to the fact of prior convictions and because it is solely the existence of two prior convictions that caused Appellant to be eligible to possibly be sentenced within a range of increased penalties, the trial court properly imposed the judgment of sentence. Accordingly, we affirm the judgment of sentence.

¶2 The factual and procedural background of this matter is as follows. On June 19, 2002, Appellant robbed a convenience store located in Bethlehem, Lehigh County. During the incident, Appellant stabbed a store employee in each of her hands. Several witnesses observed Appellant flee from the store, and they immediately alerted a nearby police sergeant to the robbery and Appellant’s flight. Although Appellant managed to escape in a vehicle, the officer noted the vehicle’s license plate number. An investigation into the vehicle’s registration led police to Appellant, who was arrested later that same evening near his home in Easton.

¶ 3 On August 11, 2003, a jury convicted Appellant of the above-referenced offenses. Following trial, the Commonwealth filed a notice of its intention to seek a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714, commonly referred to as the “Three Strikes” provision. At sentencing, the Commonwealth presented evidence that Appellant had previously been convicted of murder in 19722 and third-degree murder in 1978, among other crimes. Accordingly, the court determined the requisite quantum of proof was presented to trigger the provisions of Section 9714. The court also found that the existence of other acts of violence, the fact that Appellant had only been on parole from a 25 year sentence for eighteen months when he committed the instant offenses, and the excessive and unnecessary use of violence upon the victim, established that a sentence of 25 years of incarceration3 was insufficient to protect the public. Thus, a life sentence was imposed, as authorized by Section 9714(a)(2). Appellant filed post-sentence motions, which were ultimately denied. Thereafter, Appellant filed a timely appeal in which he now raises a single issue for resolution by this en banc panel:

Did the trial court err by imposing an illegal, enhanced sentence of life in prison without parole upon Appellant, after the Commonwealth filed a written notice requesting a third strike sentence, pursuant to section [9]714(a)(2) and the trial court found at a hearing without a jury, additional factors (ie. evidence) to have been proven by a preponderance of the evidence?

*36(Appellant’s Brief at 4).4

¶4 Appellant bases his challenge primarily upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Relying upon these precedents, Appellant argues that the sentence imposed upon him violates his right to trial by jury and to due process by allowing the imposition of greater punishment, i.e., life imprisonment, upon the sentencing court’s finding by a preponderance of the evidence that a minimum sentence of 25 years’ total confinement is insufficient to protect the public. These arguments are without merit and warrant no relief on appeal.

¶ 5 In Apprendi, the United States Supreme Court held that a defendant’s Fourteenth Amendment right to due process and Sixth Amendment right to trial by jury require that any fact, other than that of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt. Apprendi, supra at 490, 120 S.Ct. 2348.5 Although the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies to any fact other than a prior conviction that is legally essential to the punishment, it is permissible for judges to exercise discretion in imposing a sentence within the range allowed by statute. Id. at 481, 120 S.Ct. 2348. The Sixth Amendment does not limit a judge’s authority to exercise broad discretion in imposing a sentence within a statutory range. United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). “[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of facts that the judge deems relevant.” Id. Only if the authority to impose an enhanced sentence depends upon a fact required to be decided by a jury is a judge prohibited from exercising discretion to impose a sentence within the higher range. Blakely, supra at 305, 124 S.Ct. 2531. Where a judge has- the authority genuinely to exercise broad discretion within a statutory range, there is no Sixth Amendment constraint upon the exercise of that discretion. Cunningham v. California, — U.S.-, 127 S.Ct. 856, 871, 166 L.Ed.2d 856 (2007). The Supreme Court’s “Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465-66, 168 L.Ed.2d 203 (2007).

¶ 6 In the case sub judice, the salient inquiry is the characterization of the triggering facts which define the range of sentences within which the judge could legitimately impose a life sentence. The *37relevant portion of the statute at issue provides as follows:

§ 9714. Sentences for second and subsequent offenses
(a) Mandatory sentence.—
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. ... Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa.C.S.A. § 9714(a)(2) (emphasis supplied). By its terms, the statute requires a mandatory minimum sentence of at least 25 years of total confinement upon a conviction of a third crime of violence.6 The statute affords the court discretion to impose a life sentence without parole if the court determines that 25 years of total confinement would be insufficient to protect the public safety.

¶ 7 The range of permissible sentences is expanded only by a showing that the defendant has committed two previous crimes of violence. After such a showing, it is then within the discretion of the court to impose a sentence of life imprisonment without parole. As such, the court is free to take account of factual matters not determined by a jury and to increase the sentence. See Rita, supra at 127 S.Ct. 2465-66.

¶ 8 In the case sub judice, the sentencing court was not limited to a choice of either 25 years or life imprisonment. Rather, it was required to impose a sentence of at least 25 years, but it remained free to impose a greater sentence. See 42 Pa.C.S.A. § 9714(e) (“Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section.”).7 The options available to the trial court included sentencing Appellant to any term of years in excess of 25 up to and including life imprisonment without parole. Because the statute does not mandate imposition of a life sentence and allows for the exercise of discretion within a statutory range, it provides for the type of genuine discretion which permits judicial fact-finding without violation of the Sixth or Fourteenth Amendments. See Cunningham, supra at 127 S.Ct. 871 n. 17 (citing with approval Lopez v. People, 113 P.3d 713 (Colo.2005), which holds that the fact of a prior conviction opens the aggravated range and permits the sentencing court to determine other aggravating factors.) See also People v. Montour, 157 P.3d 489, 496 (Colo. 2007) (noting that in Lopez, the court adopted the labeling of the fact of a prior conviction as “Blakely-exempt” because it need not be found by a jury, and explaining that the existence of any “Blakely-exempt” fact opens the aggravated range and permits the sentencing court to determine other aggravating facts that are not “Blakely-exempt.”)

*38¶ 9 Our analysis is further informed by that of the California Supreme Court in People v. Black, 41 Cal.4th 799, 62 Cal.Rptr.3d 669, 161 P.3d 1130 (2007), in its application of the California determinate sentencing law upon remand by the United States Supreme Court for reconsideration in light of Cunningham. In holding that a defendant’s right to a jury trial was not violated by imposition of an enhanced sentence because at least one aggravating circumstance had been established, the California Supreme Court stated:

Accordingly, so long as a defendant is eligible for the upper term 'by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. “Judicial fact[-]finding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.” (Harris v. United States (2002) 536 U.S. 545, 558 [, 122 S.Ct. 2406, 153 L.Ed.2d 524].) Facts considered by trial courts in exercising their discretion within the statutory range of punishment authorized for a crime “have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime.” (Id. at p. 560 [122 S.Ct. 2406]).

People v. Black, supra at 1138.

¶ 10 In summary, we hold that Section 9714(a)(2) does not require a jury determination as to the protection of public safety. This section only requires the showing of two prior convictions for crimes of violence before it affords the trial court discretion to impose a life sentence. Because the trial court had the statutory discretion, but was not mandated to impose a life sentence, we hold that the trial court did not err in its imposition of sentence. We determine that the court did not violate Appellant’s constitutional rights by considering facts that were not determined by the jury, but properly exercised its discretion to consider the protection of public safety in reaching its sentencing decision in accordance with the precepts of Apprendi Ring, and Blakely.8 Accordingly, we affirm the judgment of sentence.

¶ 11 Judgment of sentence affirmed.

¶ 12 BENDER, J., files Dissenting Opinion which KLEIN, J., joins and TODD, J., poncurs in the Result.

. 18 Pa.C.S.A. §§ 3701, 2702, and 907, respectively.

. The record does not establish the degree of the 1972 murder conviction.

. Section 9714(a)(2) provides that upon conviction for a third or subsequent crime of violence, the court must impose a minimum sentence of at least 25 years’ imprisonment and that it may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole. See discussion infra.

. The question of whether a sentence of life imprisonment has been constitutionally imposed presents a challenge to the legality of the sentence which may not be waived upon appellate review. Commonwealth v. Aponte, 579 Pa. 246, 250 n. 1 855 A.2d 800, 802 n. 1 (2004). Consequently, we conclude this issue is properly before the Court.

. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the United States Supreme Court held that the fact of a prior conviction may be found by a judge at the time of sentencing, rather than by the jury, even if the prior conviction results in an enhancement that increases the statutory maximum sentence. Almendarez-Torres remains good law. See Ring v. Arizona, 536 U.S. 584, 597 n. 4, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); United States v. Vargas, 477 F.3d 94, 105 (3d Cir.2007).

. There is no dispute that each of Appellant’s two previous convictions and the current conviction constitute crimes of violence within the meaning of the statute.

. Unlike the circumstance in Ring, which was a capital case in which the mandatory penalty was a sentence of either life imprisonment or death, the trial court in the instant case was not required to impose one of only two sentencing options.

. Although Appellant purports to challenge his sentence on the basis of the Pennsylvania Constitution, as well as that of the United States, he does not adequately develop a separate argument in support of his state constitutional challenge, pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Rather, Appellant again relies upon Apprendi, Ring, and Blakely in support of his contention that Section 9714(a)(2) is violative of his rights to due process and a jury trial as secured by the Pennsylvania Constitution. (Appellant’s Brief at 28).