Commonwealth v. Finnegan ( 2019 )

J-S73025-18
2019 PA Super 23COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOHN ALEXANDER FINNEGAN,
Appellant No. 648 WDA 2018
Appeal from the Judgment of Sentence Entered March 13, 2018
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000395-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 1, 2019
Appellant, John Alexander Finnegan, appeals from the aggregate
judgment of sentence of 24 to 48 months’ incarceration, imposed after he pled
guilty to manufacturing a controlled substance (Methamphetamine), 35 P.S.
§ 780-113(a)(30), and recklessly endangering another person, 18 Pa.C.S. §
2705. Appellant solely challenges the legality of a mandatory minimum
sentence imposed in his case pursuant to 35 P.S. § 780-113(k). After careful
review, we affirm.
The facts underlying Appellant’s convictions are not pertinent to the
issue he raises on appeal. He pled guilty to the above-stated offenses on
January 25, 2018, and was sentenced to the aggregate term stated supra on
March 13, 2018. Appellant thereafter filed a timely motion for reconsideration
of his sentence, which the trial court denied. He then filed a timely notice of
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appeal, and he also timely complied with the court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. The court issued an
opinion on May 30, 2018.
Herein, Appellant presents the following issue for our review:
I. Whether the [t]rial [c]ourt erred in denying [] Appellant’s
Motion for Reconsideration of sentence wherein [] Appellant
submit[ted] that his mandatory sentence of 24 to 48 months
was in contradiction to the Supreme Court’s holding in
Commonwealth v. D[i]Matteo, 177 A.3d 182 ([Pa.]
2018)[,] as his sentence under 35 P.S. § 780-113(A)(30)(K)
required judicial fact[-]finding?
Appellant’s Brief at 4.
Appellant argues that his mandatory-minimum sentence is invalid, as
the court’s imposing it required judicial fact-finding in contravention of
Alleyne v. United States, 133 S.Ct. 2151 (2013), and our Supreme Court’s
decision in DiMatteo. For the following reasons, we disagree.
In Alleyne, the United States Supreme Court held that any fact
that, by law, increases the penalty for a crime must be regarded
as an element of the offense, and found beyond a reasonable
doubt by the fact-finder. See Alleyne, 133 S.Ct. at 2163. After
Alleyne, various mandatory minimum sentencing statutes have
been held by this Court to be unconstitutional because they
contain a non-severable, ‘proof at sentencing’ subsection stating
that the “[t]he provisions of [the statute] shall not be an element
of the crime[,]” and that “the applicability of [the statute] shall be
determined at sentencing ... by a preponderance of the evidence.”
See, e.g., [Commonwealth v.] Newman, 99 A.3d [86,] 90,
101–102 [(Pa. Super. 2014) (en banc)] (holding that the ‘proof at
sentencing’ provision contained in 42 Pa.C.S. § 9712.1 is
unconstitutional in light of Alleyne, and is not severable from the
remainder of the statute).
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[Additionally, in Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
2016),] the [Pennsylvania Supreme] Court struck down the
mandatory minimum sentencing provision set forth in 42 Pa.C.S.
§ 9718, which also contains the standard ‘proof at sentencing’
provision. See 42 Pa.C.S. § 9718(c). The Wolfe Court reiterated
its holding in [Commonwealth v.] Hopkins[, 117 A.3d 247 (Pa.
2015),] that such provisions “plainly and explicitly require judicial
fact-finding” and are not severable from the remaining provisions
of the sentencing statute. Wolfe, 140 A.3d at 660–61, 662–63.
Further, the Wolfe Court acknowledged that the ‘fact’ triggering
application of section 9718—i.e., the age of the victim—was also
an element of the offense for which Wolfe was convicted. Id. at
661. However, our Supreme Court agreed with Wolfe that,
under Alleyne, [s]ection 9718 must be treated as creating
a “distinct and aggravated crime,” Alleyne, … 133 S.Ct. at
2163; that the statute’s directive for judicial fact-finding
attaches to that aggravated crime notwithstanding a jury
verdict; and that sentencing judges are not free to disregard
such explicit legislative mandates by substituting their own
procedures. Accordingly, although the jury at [the
a]ppellee’s trial plainly decided that the victim was under
sixteen years of age, the sentencing court was bound to
make its own determination at sentencing, see 42 Pa.C.S.
§ 9718(c), but it could not do so in a manner consistent with
the Sixth Amendment to the United States Constitution, on
account of Alleyne. See Alleyne, … 133 S.Ct. at 2163–64
(disapproving a judicial finding relative to a mandatory
minimum sentence).
Id. Accordingly, the Wolfe Court held “that [s]ection 9718 is
irremediably unconstitutional on its face, non-severable, and
void.” Id. at 663.
Commonwealth v. Blakney, 152 A.3d 1053, 1055–56 (Pa. Super. 2016)
(footnote omitted).
Following Wolfe, our Supreme Court granted allowance of appeal in
DiMatteo “to assess what relief, if any, a criminal defendant is entitled to
when he raises an illegal sentencing challenge premised on Alleyne … in a
timely petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
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9546, when, at the time Alleyne was decided, the defendant’s judgment of
sentence was not yet final.” DiMatteo, 177 A.3d at 183. Notably, the parties
did not dispute that the mandatory-minimum sentencing statute under which
DiMatteo’s sentence had been imposed - 18 Pa.C.S. § 7508 - was
“unconstitutional and illegal … in light of Alleyne and its Pennsylvania
progeny.” Id. at 191 (citing, inter alia, Wolfe, 140 A.3d at 660-61).1 Similar
to every other mandatory-sentencing statute struck down in this
Commonwealth following Alleyne, “[s]ection 7508 specifies that its provisions
‘shall not be an element of the crime[,]’ the application of the sentence ‘shall
be determined at sentencing[,]’ and the factual determinations necessary to
impose the sentence are to be found by the sentencing court by a
preponderance of the evidence.” Id. at 183-84 (quoting 18 Pa.C.S. §
7508(b)).
In the case sub judice, Appellant contends that the statute under which
his mandatory-minimum sentence was imposed is unconstitutional under
Alleyne, Wolfe, and DiMatteo. That statute reads:
(k) Any person convicted of manufacture of amphetamine, its
salts, optical isomers and salts of its optical isomers;
methamphetamine, its salts, isomers and salts of isomers; or
phenylacetone and phenyl-2-proponone shall be sentenced to at
least two years of total confinement without probation, parole or
work release, notwithstanding any other provision of this act or
other statute to the contrary.
____________________________________________
1 Section 7508 “prescribes various mandatory minimum sentences for certain
violations of The Controlled Substance, Drug, Device and Cosmetic Act …
predicated on the weight and classification of the controlled substance.”
DiMatteo, 177 A.3d at 183.
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35 P.S. § 780-113(k). According to Appellant,
[t]hough the ruling in DiMatteo did not apply to the statute
[pursuant to which] [] Appellant was sentenced…, [] Appellant
would note that said statute still requires judicial fact-finding,
which the DiMatteo Court deemed unconstitutional pursuant to
Wolfe; more specifically, the [t]rial [c]ourt in implementing the
mandatory sentence of two years to which [] Appellant was
sentenced [was required to] determine [that] [] Appellant was
convicted of manufacturing one of the following: “amphetamine,
its salts, optical isomers and salts of its optical isomers;
methamphetamine, its salts, isomers and salts of isomers; or
phenylacetone and phenyl-2-propane[;”] hence, judicial fact-
finding [was] required to implement the mandatory sentence of
two years, which is unconstitutional per DiMatteo and Wolfe.
Appellant’s Brief at 9.
Appellant’s argument is unconvincing. Notably, section 780-113(k)
does not contain the Alleyne-offending language present in the statutes
addressed in Wolfe and DiMatteo. Additionally, Appellant pled guilty to
manufacturing a controlled substance under section 780-113(a)(30), which
reads:
(30) Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30) (emphasis added). Thus, an element of this offense
is that the person manufactured, delivered, or possessed with the intent to
deliver, a controlled substance. To prove that element, the Commonwealth
must necessarily establish what substance the person possessed, in order to
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demonstrate that it is a ‘controlled substance’ as defined by section 780-104
(Schedules of controlled substances).
Accordingly, it is not the sentencing court that makes a factual finding
regarding what specific controlled substance(s) the defendant possessed for
purposes of applying section 780-113(k). Instead, that determination is a
component of proving the ‘controlled substance’ element of section 780-
113(a)(30). The present case is illustrative of this point, as Appellant pled
guilty to manufacturing the specific controlled substance of
methamphetamine; thus, it was his plea that triggered application of section
780-113(k), not any factual finding by the sentencing court. See N.T. Plea
Proceeding, 1/25/17, at 16-17. Therefore, Appellant’s mandatory-minimum
sentence under section 780-113(k) does not violate Alleyne.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2019
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