Com. v. Mills, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES H. MILLS
Appellant No. 1803 MDA 2013
Appeal from the Judgment of Sentence entered September 10, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001318-2013
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014
James H. Mills appeals from the judgment of sentence entered for his
guilty plea to robbery. Appellant argues that the trial court’s imposition of a
mandatory minimum sentence is illegal under Alleyne v. United States,
133 S. Ct. 2151 (2013). This case is controlled by this Court’s recent
decision in Commonwealth v. Valentine, 2014 PA Super 220, 2014 WL
4942256, 2014 Pa. Super. LEXIS 3420 (filed Oct. 2, 2014), which declared
unconstitutional the mandatory minimum sentencing statute used in this
case. Therefore, we are constrained to vacate and remand for resentencing.
On January 23, 2013, Appellant approached a woman on a Harrisburg
street and demanded money. When she told Appellant she had none,
Appellant placed an object against her back, said it was a gun, and forced
her toward an ATM machine. Two nearby off-duty police officers foiled
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Appellant’s plan. After a brief foot chase, the officers apprehended Appellant
and discovered that his “gun” was a pair of wire snips.
On September 10, 2013, Appellant pled guilty to one count of robbery,
graded as a first-degree felony, 18 Pa.C.S.A. § 3701(a)(1)(ii). During the
guilty plea colloquy, Appellant admitted that a mandatory five-year sentence
applied because he committed a crime of violence while using a replica of a
firearm that placed the victim in reasonable fear of death or serious bodily
injury. See N.T., 9/10/13, at 4-7, 10. The trial court accepted the guilty
plea, and sentenced Appellant to five to ten years in prison, applying the
mandatory minimum sentence at 42 Pa.C.S.A. § 9712(a) requested by the
Commonwealth. This appeal followed.
Appellant raises one issue for our review:
Whether the trial court erred in imposing a mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9712, since, under the
United States Supreme Court’s ruling in Alleyne v. United
States, 133 S. Ct. 2151 (2013), imposing a mandatory
minimum sentence under 42 Pa.C.S.A. § 9712 is
unconstitutional?
Appellant’s Brief at 4 (typeface altered). Although Appellant admitted to
using wire snips to simulate a firearm, he argues that § 9712 is facially
unconstitutional.1 We agree, as Valentine, supra, is directly on-point.
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A challenge to the legality of a sentence is a question of law, which we
review de novo. Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa.
Super. 2013).
(Footnote Continued Next Page)
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Valentine applies Alleyne, in which the Supreme Court of the United
States held:
[a]ny fact that, by law, increases the penalty for a crime is an
“element” that must be submitted to the jury and found beyond
a reasonable doubt. Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that increases
the mandatory minimum is an “element” that must be submitted
to the jury.
Alleyne, 133 S. Ct. at 2155 (internal citation omitted). Alleyne is
grounded in the Sixth Amendment right to a jury trial. Id. at 2163-64(holding that the use of judge-found facts violated the defendant’s Sixth
Amendment rights).
This Court has struggled to apply Alleyne, because many of
Pennsylvania’s mandatory minimum sentencing statutes include language
now found to be unconstitutional. See Commonwealth v. Watley, 81 A.3d
108, 117 (Pa. Super. 2013) (en banc) (dicta) (“[Alleyne], therefore,
renders those Pennsylvania mandatory minimum sentencing statutes that do
not pertain to prior convictions constitutionally infirm insofar as they permit
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(Footnote Continued)
Appellant did not challenge the legality of his sentence before the trial
court—even though his guilty plea and sentencing date occurred three
months after Alleyne was decided. We must nevertheless address
Appellant’s contention, because a challenge to the application of a
mandatory minimum sentence—including a challenge under Alleyne—is a
non-waivable challenge to the legality of the sentence. Commonwealth v.
Thompson, 93 A.3d 478, 494 (Pa. Super. 2014). But cf. Commonwealth
v. Johnson, 93 A.3d 806, 806 (Pa. 2014) (granting allocatur to consider,
inter alia, “[w]hether challenge to a sentence pursuant to [Alleyne]
implicates the legality of the sentence and is therefore non-waivable”).
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a judge to automatically increase a defendant’s sentence based on a
preponderance of the evidence standard.”) (footnote omitted). The
sentencing statute in this case is an example:
(a) Mandatory sentence.--Except as provided under [42
Pa.C.S.A. §] 9716 (relating to two or more mandatory minimum
sentences applicable), any person who is convicted in any court
of this Commonwealth of a crime of violence as defined in [id.
§] 9714(g) (relating to sentences for second and subsequent
offenses), shall, if the person visibly possessed a firearm or a
replica of a firearm, whether or not the firearm or replica was
loaded or functional, that placed the victim in reasonable fear of
death or serious bodily injury, during the commission of the
offense, be sentenced to a minimum sentence of at least five
years of total confinement notwithstanding any other provision
of this title or other statute to the contrary. Such persons shall
not be eligible for parole, probation, work release or furlough.
(b) 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.A. § 9712 (subsections (c)-(e) omitted).
In Commonwealth v. Newman, 2014 PA Super 178, 2014 WL
4088805, at *15, 2014 Pa. Super. LEXIS 2871, at *40 (filed Aug. 20, 2014)
(en banc), we declared 42 Pa.C.S.A. § 9712.12 wholly unconstitutional. In
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42 Pa.C.S.A. § 9712.1 required a five-year mandatory minimum sentence
for drug trafficking crimes committed while in actual or constructive
possession of a firearm in close proximity to the drugs.
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Newman, we we found that the “enforcement arm” of the statute, 42
Pa.C.S.A. § 9712.1(c), was inseparable from the “predicate arm,” 42
Pa.C.S.A. § 9712.1(a), which delineated the facts triggering the mandatory
sentence. Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super. LEXIS
2871, at *31-33. Thus, because the inseparable enforcement arm violated
Alleyne, we found the entire statute unconstitutional. Id., 2014 Pa. Super.
LEXIS 2871, at *31-33.
Valentine extends Newman to the statute at issue here, 42
Pa.C.S.A. § 9712, which has an identical “enforcement arm” as § 9712.1.
Valentine, 2014 WL 4942256, at *7-8, 2014 Pa. Super. LEXIS 3420, at
*17-21. Moreover, Valentine rejects the harmless error analysis employed
in Watley that saved the imposition of a mandatory sentence in that case.
Id. at *9 n.4, 2014 Pa. Super. LEXIS 3420, at *23 n.9 (acknowledging
Watley, but adhering “to our decision in Newman which concluded that the
entirety of the mandatory minimum sentencing statute must be stricken as
unconstitutional”).
In Valentine, the defendant received a five-year mandatory sentence
because he robbed a woman at gunpoint on a city bus. Valentine, 2014 WL
4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *2-3. At his trial, the jury,
through special interrogatories, found the facts necessary to trigger
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application of 42 Pa.C.S.A. §§ 9712 and 9173.3 Valentine, 2014 WL
4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *3-4. Even though the jury
found beyond a reasonable doubt the triggering facts, we held that the
mandatory sentences could not be applied. Rather, the statutes
implementing the mandatory sentence were wholly unconstitutional:
Here, the trial court permitted the jury, on the verdict slip, to
determine beyond a reasonable doubt whether Appellant
possessed a firearm that placed the victim in fear of immediate
serious bodily injury in the course of committing a theft for
purposes of the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or
in part at or near public transportation, for purposes of the
mandatory minimum sentencing provisions of 42 Pa.C.S.A.
§ 9713(a). The jury responded “yes” to both questions. In
presenting those questions to the jury, however, we conclude, in
accordance with Newman, that the trial court performed an
impermissible legislative function by creating a new procedure in
an effort to impose the mandatory minimum sentences in
compliance with Alleyne.
The trial court erroneously presupposed that only Subsections
(c) of both 9712 and 9713 (which permit a trial judge to
enhance the sentence based on a preponderance of the evidence
standard) were unconstitutional under Alleyne, and that
Subsections (a) of 9712 and 9713 survived constitutional
muster. By asking the jury to determine whether the factual
prerequisites set forth in § 9712(a) and § 9713(a) had been
met, the trial court effectively determined that the
unconstitutional provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds that the
unconstitutional provisions of § 9712(c) and § 9713(c) are not
severable but “essentially and inseparably connected” and that
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42 Pa.C.S.A. § 9713 required a five-year mandatory minimum sentence for
crimes of violence committed in or near public transportation. Section 9713
contains an identical “enforcement arm” as §§ 9712 and 9712.1.
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the statutes are therefore unconstitutional as a whole.
[Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super.
LEXIS 2871, at *34-35]. (“If Subsection (a) is the predicate arm
. . . then Subsection (c) is the enforcement arm. Without
Subsection (c), there is no mechanism in place to determine
whether the predicate of Subsection (a) has been met.”).
***
Because Alleyne and Newman render §§ 9712 and 9713
unconstitutional, we vacate the judgment of sentence and
remand for the re-imposition of sentence without consideration
of any mandatory minimum sentence as provided by §§ 9712
and 9713.
Id. at *8-9.
Valentine applies to Appellant’s case. First, it applies because
Appellant’s judgment of sentence is not final, and the general rule is to apply
the law in effect at the time of the appellate decision. Commonwealth v.
Housman, 986 A.2d 822, 840 (Pa. 2009). Second, a statute declared
unconstitutional is generally void ab initio. “An unconstitutional statute is
ineffective for any purpose since its unconstitutionality dates from the time
of its enactment and not merely from the date of the decision holding it so.”
Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa. Super. 1996)
(quoting Commonwealth v. Brown, 431 A.2d 905, 907-08 (Pa. 1981));
see also Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010)
(vacating a conviction under 18 Pa.C.S.A. § 4119 (trademark
counterfeiting), because the statute was declared unconstitutional after the
date of conviction).
Because § 9712 is void, there is no statutory authorization for the
mandatory minimum sentence imposed here. “If no statutory authorization
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exists for a particular sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super.
2013) (quotation omitted); see also Commonwealth v. Randal, 837 A.2d
1211, 1214 (Pa. Super. 2003) (en banc) (concluding that a Supreme Court
decision declaring unconstitutional ignition interlock law required vacation of
defendant’s sentence, even though defendant was sentenced before
declaration of unconstitutionality). We recognize that Appellant admitted the
fact triggering § 9712 and conceded that it applied, but a defendant cannot
agree to serve an illegal sentence. Commonwealth v. Gentry, --- A.3d ---
, 2014 PA Super 219 2014 WL 4942271, at *4, 2014 Pa. Super. LEXIS 3421,
at *12 (filed Oct. 3, 2014) (“Our cases clearly state that a criminal
defendant cannot agree to an illegal sentence, so the fact that the illegality
was a term of his plea bargain is of no legal significance.”).
In light of Valentine, 42 Pa.C.S.A. § 9712 is void, and no statutory
basis exists to sentence Appellant to a mandatory minimum of five years in
prison. Accordingly, we vacate Appellant’s sentence and remand for
resentencing without consideration of § 9712.4
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The unconstitutionality of § 9712 does not affect the trial court’s discretion
to impose any other lawful sentence. See Alleyne, 133 S. Ct. at 2163 (“We
have long recognized that broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.”); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting
that Alleyne does not affect a trial court’s ability to deviate from the
Sentencing Guidelines).
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2014
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