Com. v. Jennings, N. ( 2014 )

J-S44033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORRIS EDWARD JENNINGS
Appellant No. 245 WDA 2014
Appeal from the Judgment of Sentence December 19, 2013
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000388-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 13, 2014
Norris Edward Jennings appeals from the judgment of sentence
imposed on December 19, 2013, in the Court of Common Pleas of Mercer
County following his conviction by jury of three counts each of unlawful
delivery of cocaine, possession of cocaine, possession of drug paraphernalia
and criminal use of a communication facility (cell phone).1 Jennings received
an aggregate sentence of three to six years’ incarceration. The sentence
represents the imposition of the mandatory minimum sentence allowable
under 18 Pa.C.S. § 7508(a)(3)(i).2 In this timely appeal, Jennings raises a
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1
35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 7512(a),
respectively.
2
Section 7508 states, in relevant part:
(Footnote Continued Next Page)
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single issue, claiming the imposition of the mandatory minimum sentence
represents cruel and unusual punishment, and is, therefore, unconstitutional
under the Eighth and Fourteenth Amendments of the United States
Constitution and Article 1, Sections 13 and 9 of the Pennsylvania
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(Footnote Continued)
(a) General rule.--Notwithstanding any other provisions of this
or any other act to the contrary, the following provisions shall
apply:
...
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance, Drug,
Device and Cosmetic Act where the controlled substance is
coca leaves or is any salt, compound, derivative or
preparation of coca leaves or is any salt, compound,
derivative or preparation which is chemically equivalent or
identical with any of these substances or is any mixture
containing any of these substances except decocainized
coca leaves or extracts of coca leaves which (extracts) do
not contain cocaine or ecgonine shall, upon conviction, be
sentenced to a mandatory minimum term of imprisonment
and a fine as set forth in this subsection:
(i) when the aggregate weight of the compound or
mixture containing the substance involved is at least
2.0 grams and less than ten grams; one year in
prison and a fine of $5,000 or such larger amount as
is sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity; however, if at the
time of sentencing the defendant has been convicted
of another drug trafficking offense: three years in
prison and $10,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity
18 Pa.C.S. § 7508(a)(3)(i).
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Constitution. After a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm on the basis of the March
11, 2014, Pa.R.A.P. 1925(a) Opinion and the January 15, 2014,
Memorandum Opinion and Order, both authored by the Honorable
Christopher J. St. John.
The history of this matter and the issue raised in this appeal are both
straightforward and uncomplicated. They are both addressed in the cogent
Memorandum Opinion and Order of January 15, 2014, denying Jennings’
post-sentence motion challenging the constitutionality of 18 Pa.C.S. § 7508.
We need add nothing to that analysis.
We note that the Pennsylvania mandatory minimum sentencing
statutes have been called into question to the extent that sentencing factors,
such as the weight of the drugs possessed were not determined by jury.
See Alleyne v. United States, 133 S.Ct. 2151 (2013); Commonwealth v.
Lane, 81 A.3d 974, 976 n.5 (Pa. Super. 2013); Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013).3
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3
We also recognize that our Supreme Court has accepted Commonwealth
v. Johnson, ___ A.3d ___ (Pa. June 13, 2014) for review, to determine
whether the application of 18 Pa.C.S. § 6317, regarding drug free school
zones, must be submitted to the jury and whether a challenge to sentencing
pursuant to Alleyne implicates the legality of a sentence and cannot be
waived. The instant matter is not dependent upon the resolution of
Johnson.
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Instantly, Jennings was subject to the mandatory minimum sentence
pursuant to 18 Pa.C.S. § 7508(a)(3)(i) due to both the weight of the drugs
involved and the fact that Jennings had a prior drug conviction. However,
the Alleyne considerations are not applicable herein because the jury did
determine the weight of the drugs involved. See Jury Verdict Form,
10/23/2013. Additionally, the fact of a prior conviction is exempt from jury
determination. See; Alleyne, 133 S.Ct. at 2160 n.1; Almendarez-Torres
v. United States, 118 S.Ct. 1219 (1998) and Lane, id. Therefore,
Jennings’ sentence is not unconstitutional under the Sixth and Fourteenth
Amendments of the United States Constitution and Article 1, Sections 13 and
9 of the Pennsylvania Constitution .
In light of the above, Jennings is not entitled to relief.
Judgment of sentence affirmed. Parties are directed to attach a copy
of the January 15, 2014 Memorandum and Order and the March 11, 2014
1925(a) Opinion in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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