Commonwealth v. Line

DISSENTING OPINION BY

BENDER, J.:

¶ 1 Appellant was sentenced to a life sentence imder the provisions of 42 Pa. C.S. § 9714. The Majority contends Appellant’s prior convictions was the sole factor that caused Appellant to be eligible for a life sentence, and that therefore the imposition of that term of imprisonment did *39not violate Appellant’s constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). I respectfully dissent.

¶ 2 As the Majority acknowledges, and the cases of Apprendi, Blakely, et al, establish, 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 maximum9 be submitted to a jury and proven beyond a reasonable doubt. Conversely, as the Majority emphasizes, the mere exercise of judicial discretion within a statutorily authorized range of punishment does not offend the above constitutional rights.

¶ 3 Taking into account the above statement of law, the essence of the Majority’s rationale, if I understand it correctly, is that under 42 Pa.C.S. § 9714, the presence of three prior qualifying convictions on a criminal defendant’s record authorizes a new and higher range of punishment for a robbery conviction — the ceiling of which is life imprisonment — from which the sentencing court merely exercises its discretion in choosing a finite sentence of at least 25 years’ imprisonment or an indefinite term of life imprisonment. Since the court merely exercises its discretion within a range established by the defendant’s convictions, Apprendi and its progeny are not implicated and neither due process nor the right to trial by jury is offended. Unfortunately for the Majority, this analysis ignores the actual language of the statute in question and also ignores the fact that this type of distinction has been rejected by the United States Supreme Court.

¶ 4 42 Pa.C.S. § 9714 provides:

(a) Mandatory sentence.—

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(2) Where the person has 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 total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. 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.

¶ 5 Deconstructing the language of section 9714, the presence of two or more prior convictions for crimes of violence requires, upon the third or subsequent such conviction, the imposition of a finite term of imprisonment of at least 25 years total confinement. However, upon conviction of a third or subsequent qualifying 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.” The Majority construes the statute’s language as setting a range of *40punishment, from 25 years imprisonment to life imprisonment, which is applicable when the offender has three or more prior convictions for crimes of violence.

¶ 6 I use the word “construe” purposefully, because upon close reading it is clear the Majority’s position rests upon a construction of the literal language of section 9714 rather than an unequivocal expression provided by the statute’s actual wording. Section 9714 can certainly be recast to explicitly provide what the Majority reconstructs. I proffer the following, theoretical reconstruction of section 9714, which utilizes a great deal of the original language:

Where the person has 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 term of imprisonment which is not less than 25 years total confinement and not greater than life imprisonment without the possibility of parole.

However, currently, section 9714 is not worded in such a manner as to explicitly convey the above.

¶ 7 The Majority’s interpretation of section 9714 as merely setting forth a range of punishment from 25 years to life imprisonment begs the question whether the phrase “if it determines that 25 years of total confinement is insufficient to protect the public safety” is a precondition to imposing a sentence of life imprisonment or merely words illustrating the discretionary nature of the task involved. If the opera-five phrase is deemed to be a precondition, the Majority’s rationale falls apart because it would not be the fact of a prior conviction alone justifying the imposition of a sentence enhancement but, rather, a conclusion reached by the sentencing court.

¶ 8 In resolving this question of statutory construction it should be useful to resort to the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., and well accepted principles of statutory construction. One essential premise of statutory construction is that words and phrases are to be given their plain meaning.10 Giving credence to the plain language of the statute, the court may impose a sentence of life imprisonment, if it determines that 25 years of total confinement is insufficient to protect the public safety. While, literally read, the statute imbues the court with discretion to impose a life sentence, the language “if [the court] determines” certainly connotes a condition to the court’s exercise of its discretion to impose a life sentence. As such, a plain reading of the statute leads to the conclusion that imposition of a life sentence is not preconditioned upon the fact of prior convictions alone, but is further conditioned upon a finding that 25 years of total confinement is insufficient to protect the public safety.

¶ 9 Another principle of statutory construction provides that words or phrases in statutes should not be construed as mere surplusage.11 In construing section 9714 as providing complete discretion to impose a life sentence upon proof of the requisite number and type of prior convictions alone, the Majority essentially glosses *41over, if not completely ignores, the seemingly qualifying phrase “if it determines that 25 years of total confinement is insufficient to protect the public safety.” In other words, the Majority treats that phrase as mere surplusage that adds nothing of significance to the statute. Of course, this interpretation contravenes the idea that words in a statute are deemed not to be construed as mere surplusage.

¶ 10 For additional guidance in construing the import of the qualifying language in 42 Pa.C.S. § 9714, it may be instructive to compare that section to the other statutory provisions setting forth maximum levels of punishment. The range of punishment allowed for felonies is set forth at 18 Pa.C.S. § 1108 and provides:

§ 1103. Sentence of imprisonment for felony
Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses), a person who has been convicted of a felony may be sentenced to imprisonment as follows:
(1) In the case of a felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.
(2) In the case of a felony of the second degree, for a term which shall be fixed by the court at not more than ten years.
(3) In the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years.

¶ 11 As the many cases relating to sentencing in Pennsylvania establish, sentencing in Pennsylvania is primarily a matter of judicial discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). A review of section 1103 above reveals that the primary statutory authority allowing the imposition of a term of imprisonment indeed supports this conclusion. The statute providing primary authorization to impose a sentence of imprisonment does nothing more than set forth a maximum term of imprisonment or, in other words, establish a statutory ceiling. These provisions provide no restrictions to the court’s discretion in imposing sentence and case-law clearly establishes that the imposition of sentence within the authorized range is a matter of the court’s discretion.12

¶ 12 As established above, unlike 18 Pa. C.S. § 1103, 42 Pa.C.S. § 9714 provides a minimum sentence that is mandatory, thereby restricting the court’s discretion. More significantly for the purposes of the present constitutional question, the statute provides for the permissive imposition of a life sentence, but includes the language at issue here, which seemingly conditions the court’s determination upon a finding that the mandatory minimum sentence is insufficient to protect the public safety. A side-by-side comparison, therefore, reveals a substantial difference between section 9714 and the general provisions authorizing punishment. Similar to the demonstration above, if the legislature had intended for section 9714 to have the same application as the general sentencing provisions, it could have, to simply track the language of section 1103, authorized a sentence “fixed by the court at not less than 25 years and not greater than life imprisonment” and left it at that. Under such a wording, the imposition of a life sentence truly would have had a completely permissive and discretionary nature between the two parameters. That section 9714 does not simply set a new ceiling at life imprisonment, as the legislature chose in other sections of *42the crimes code, is another clue that there is more at work in section 9714 than merely authorizing a new range from which the judge may exercise discretion.

¶ 13 In reality, the present case differs very little from Blakely. Under the Washington sentencing scheme found in Blakely, Blakely’s conviction established his statutory maximum of ten years’ imprisonment. However, other provisions set forth a presumptive and relatively narrow range of imprisonment below the statutorily allowed maximum, in Blakely’s case 49 to 53 months’ imprisonment. Additional provisions allowed,13 but did not compel, a sentence above the presumptive range if the court found “substantial and compelling reasons justifying an exceptional sentence.” Id. at 299, 124 S.Ct. 2531. In finding a constitutional violation, the Court did not focus upon the fact that the court had discretion to impose the enhanced sentence, that is, that a sentencing court in Washington may impose an enhanced sentence. Rather, the Court focused upon the fact that, discretionary or not, the enhancement could not be imposed absent a conclusion that there were substantial and compelling circumstances justifying the imposition of an exceptional sentence.14 Because the exercise of discretion was further conditioned, allowing the court to determine that the condition was satisfied violated the constitutional rights mentioned above.

¶ 14 Referencing Blakely, section 9714 comes clearly into constitutional focus. The presence of qualifying prior convictions raised Appellant’s potential range of punishment to a minimum of 25 years total confinement and a maximum of life imprisonment. In Blakely, Blakely’s maximum was 10 years of imprisonment. A finite sentence of incarceration of at least 25 years is the equivalent of Blakely’s “standard range” sentence, the sentence which the court could impose in recognition of Appellant’s convictions alone. As in Blakely, section 9714 allows for an enhancement, in this case “life imprisonment,” but conditions the imposition of that sentence upon an additional finding made by the court “that 25 years of total confinement is insufficient to protect the public safety.” This qualifying phrase is the functional equivalent of a judge in Washington concluding that “substantial and compelling reasons justify [] an exceptional sentence.” It matters not that the imposition of the enhancement is discretionary with the court when the exercise of that discretion is further conditioned upon a determination made by the court. Because the terms of the statute condition the exercise of discretion upon an additional conclusion, that conclusion *43must be either admitted by the defendant or submitted to a jury and proven beyond reasonable doubt.

¶ 15 I understand the Majority’s reluctance to impair the operation of an important piece of legislation relating to repeat offenders by labeling a portion of it unconstitutional, and I would admit that, with proper wording, the legislature is empowered to grant sentencing courts discretionary authority to impose life sentences. However, the statute as currently worded is unconstitutional and I am unwilling to reconstruct the plain terms of section 9714 so as to conform to constitutional mandates. Thus, I dissent.

. Relevant case law firmly establishes that the statutory maximum for purposes of an Ap-prendi analysis is not simply defined by the maximum punishment allowed by statute for a class of crimes or for a particular crime but, rather, it is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis removed).

. “[The court is] obliged, however, to construe a statute according to its plain meaning and in such a manner as to give effect to all of its provisions.” Borough of Pottstown v. Pa. Mun. Ret. Bd., 551 Pa. 605, 612, 712 A.2d 741, 744 (1998).

. In Metropolitan Life Ins. Co. v. Bodge, 385 Pa.Super. 77, 560 A.2d 175, 181 (1989), we stated: "The Statutory Construction Act, ... requires that every statute or regulation 'be construed, if possible, to give effect to all its provisions.’ 1 Pa.C.S. § 1921(a) (emphasis supplied).”

. The only other restriction of significance is 42 Pa.C.S. § 9756, which requires the court to impose both a minimum and maximum term of imprisonment and which compels the maximum sentence be at least twice that of the minimum sentence.

. That the United States Supreme Court viewed a sentencing enhancement as permissive and not mandatory is established by the Court’s statement "[a] judge may impose a sentence above the standard range....” Blakely, 542 U.S. at 299, 124 S.Ct. 2531 (emphasis added). Similarly, in Cunningham v. California,-U.S.-, 127 S.Ct. 856, 865, 166 L.Ed.2d 856 (2007), the Court stated: "The State in Blakely had endeavored to distinguish Apprendi on the ground that 'under the Washington guidelines, an exceptional sentence is within the court’s discretion as a result of a guilty verdict.' ”

Washington law further establishes that the imposition of an exceptional sentence was discretionary with the court. The Supreme Court of Washington stated in State v. Law, 154 Wash.2d 85, 110 P.3d 717, 721 (2005): “The SRA then sets forth nonexclusive 'illustrative' factors which the court may consider in exercising its discretion to impose an exceptional sentence.”

. In this regard, the Court stated: "Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.” Blakely, 542 U.S. at 305, n. 8, 124 S.Ct. 2531 (emphasis removed).