Com. v. Davilla, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JUAN J. DAVILLA
Appellant No. 2917 EDA 2013
Appeal from the Judgment of Sentence September 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005313-2012
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 14, 2015
Appellant, Juan J. Davilla, appeals from the September 20, 2013
aggregate judgment of sentence of five to ten years’ incarceration plus a
consecutive five years’ probation, imposed following his conviction by a jury
of possession with intent to deliver a controlled substance (PWID), to wit
heroin and cocaine, possession of a controlled substance, conspiracy, and
firearms not to be carried without a license.1 Appellant challenges the
legality of imposing a mandatory sentence in this case. After careful review,
we vacate Appellant’s sentence and remand for resentencing.
A summary of the pertinent factual and procedural history of the case
follows. During a police surveillance operation near the corner of Hope
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1
35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(16), 18 Pa.C.S.A. §§ 903,
and 6106(a)(1), respectively. An additional charge of carrying a firearm in
public in Philadelphia, 18 Pa.C.S.A. § 6108, was nolle prossed.
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Street and Sullivan Street in the city of Philadelphia, Pennsylvania, Appellant
was present with co-defendant, Eddie Mojica. Appellant and Mojica were
observed conducting apparent drug transactions with three individuals, who,
when stopped by back-up officers immediately after they left the scene,
were found in possession of packets containing heroin and/or packets
containing cocaine. Appellant was then observed entering a Ford Ranger
parked nearby, where he remained for about two minutes.
Appellant and Mojica were arrested and packets of cocaine, packets of
heroin, and small amounts of cash were found on their persons. A
subsequent warranted search of the Ford Ranger yielded more quantities of
cocaine and heroin, two handguns, and $525.00 in cash, all located in the
passenger airbag compartment. Appellant was charged with the
aforementioned crimes, and the case proceeded to a jury trial held on July
19-24, 2013.
During trial, the parties debated before the trial court the import of the
United States Supreme Court’s decision in Alleyne v. United States, 133
S. Ct. 2151 (2013), handed down a month earlier on June 17, 2013. In the
event of conviction, the Commonwealth sought imposition of a mandatory
sentence under 42 Pa.C.S.A. § 9712.1, based on the close proximity of the
drugs to a firearm, and 18 Pa.C.S.A. § 6317, based on the offenses
occurring within 1,000 feet of a school and 250 feet of a recreation area.2
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2
Those provisions provide in pertinent part as follows.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
§ 9712.1. Sentences for certain drug offenses
committed with firearms
(a) Mandatory sentence.--Any person who is
convicted of a violation of section 13(a)(30) of the
act of April 14, 1972 (P.L. 233, No. 64), [FN1]
known as The Controlled Substance, Drug, Device
and Cosmetic Act, when at the time of the offense
the person or the person’s accomplice is in physical
possession or control of a firearm, whether visible,
concealed about the person or the person's
accomplice or within the actor’s or accomplice's
reach or in close proximity to the controlled
substance, shall likewise be sentenced to a minimum
sentence of at least five years of total confinement.
…
(c) 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. § 9712.1.
§ 6317. Drug-free school zones
(a) General rule.--A person 18 years of age or
older who is convicted in any court of this
Commonwealth of a violation of section 13(a)(14) or
(30) of the act of April 14, 1972 (P.L. 233, No. 64),
(Footnote Continued Next Page)
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Appellant argued Alleyne rendered these statutes unconstitutional in their
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(Footnote Continued)
known as The Controlled Substance, Drug, Device
and Cosmetic Act, shall, if the delivery or possession
with intent to deliver of the controlled substance
occurred within 1,000 feet of the real property on
which is located a public, private or parochial school
or a college or university or within 250 feet of the
real property on which is located a recreation center
or playground or on a school bus, be sentenced to a
minimum sentence of at least two years of total
confinement, notwithstanding any other provision of
this title, The Controlled Substance, Drug, Device
and Cosmetic Act or other statute to the contrary.
The maximum term of imprisonment shall be four
years for any offense:
(1) subject to this section; and
(2) for which The Controlled Substance, Drug, Device
and Cosmetic Act provides for a maximum term of
imprisonment of less than four years.
…
(b) Proof at sentencing.--The provisions of this
section shall not be an element of the crime. Notice
of the applicability of this section 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 evidence presented at trial, shall
afford the Commonwealth and the defendant an
opportunity to present necessary additional evidence
and shall determine by a preponderance of the
evidence if this section is applicable.
…
18 Pa.C.S.A. § 6317.
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entirety, precluding imposition of the mandatory sentences. The
Commonwealth argued that the unconstitutional aspects of the statute were
severable and compliance with Alleyne would be possible if the pertinent
triggering facts were submitted to the jury to find beyond a reasonable
doubt.
The trial court agreed with the Commonwealth and devised a special
verdict slip. In it, the jury was asked to indicate whether the drugs located
in the red truck were in close proximity to a firearm; whether Appellant was
in physical possession or control of a firearm; whether the PWID charge
relative to the drugs located in the red truck occurred within 1,000 feet of a
school; and whether the PWID charge relative to the drugs located in the red
truck occurred within 250 feet of a recreation center.3 The trial court
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3
The parties agree that pertinent to the issues in this appeal the questions
were presented to the jury in a special jury interrogatory as follows.
3) If you answered yes to Question #2 [whether
Appellant was guilty of PWID], does that finding of
guilt include the narcotics (heroin and cocaine)
recovered from the red Ford truck? If yes, answer
Questions (a), (b), (c), (d), and (e). If no, do not
consider (a), (b), (c), (d), and (e).
(a) Were the narcotics (heroin and cocaine),
for which you have found the defendant
guilty, in proximity (close or near) to a
firearm?
(b) Was the defendant, his accomplice, or
his conspirator in physical possession or
control of a firearm?
(Footnote Continued Next Page)
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instructed the jury that each question “has to be proven by the
Commonwealth beyond a reasonable doubt.” N.T., 7/23/13, at 58.
The jury found Appellant guilty of all charges and answered the above
special questions in the affirmative, with exception of whether the PWID
offense took place within 1,000 feet of a school. At the September 20, 2013
sentencing, the trial court imposed an aggregate sentence of five to ten
years’ incarceration plus a consecutive five years’ probation. Specifically,
the trial court, applying the mandatory sentence under Section 9712.1,
imposed a term of incarceration of five to ten years on the PWID charge and
_______________________
(Footnote Continued)
(c) Was a firearm within the defendant’s, his
accomplice’s, or his conspirator’s reach?
(d) Were the narcotics (heroin and cocaine)
found within the red Ford truck within
1,000 feet of a school?
(e) Were the narcotics (heroin and cocaine)
found within the red Ford truck within
250 feet of a recreation center?
Appellant’s Brief at 8. We note with disapproval the absence of the jury
interrogatories or jury slip in the certified record. Neither is there a copy of
the trial transcripts from July 20-22, 2013, during which the form of the
verdict slip was discussed and approved by the trial court. It is Appellant’s
responsibility to ensure the record certified on appeal is complete.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. Super.
2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007). Instantly, the
gap in the record does not impede our review, and we decline to find waiver.
See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006)
(holding, “any claims that cannot be resolved in the absence of the
necessary transcript or transcripts must be deemed waived for the purpose
of appellate review”), appeal denied, 916 A.2d 632 (Pa. 2007).
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a concurrent term of five to ten years on the conspiracy charge. The
possession of a controlled substance count merged with the PWID. The trial
court imposed a consecutive five-year term of probation on the firearms not
to be carried without a license charge. Appellant again objected to the
imposition of the mandatory sentence, citing Alleyne. Appellant did not file
a post-sentence motion. Appellant filed a timely notice of appeal on October
17, 2013.4
On appeal, Appellant raises a single question for our review.
Whether 42 Pa.C.S.A section 9712.1 is
unconstitutional in light of the recent United States
Supreme Court decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013)[?]
Appellant’s Brief at 5.5
At the outset, we note that issues pertaining to
Alleyne go directly to the legality of the sentence.
Commonwealth v. Lawrence, 99 A.3d 116, 123
(Pa. Super. 2014). With this in mind, we begin by
noting our well-settled standard of review. “A
challenge to the legality of a sentence … may be
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4
The trial court ordered Appellant to file a concise statement pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant failed to
comply. However, as Appellant’s issue concerns the legality of his sentence,
it is not waivable. See Commonwealth v. Foster, 17 A.3d 332, 336 (Pa.
2011) (plurality) (noting that a challenge to the legality of a sentence is a
jurisdictional issue and is not waivable). The trial judge apparently retired
from the bench without preparing a Rule 1925(a) opinion for this appeal.
5
Appellant’s Brief was filed a week after this Court handed down our
decision in Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
(en banc), but does not cite it. The Newman Court held Section 9712.1
unconstitutional in its entirety. Appellant’s brief anticipates the issues and
arguments ultimately resolved by Newman and its progeny.
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entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka, 18
A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation
omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Rivera, 95 A.3d
913, 915 (Pa. Super. 2014) (citation omitted). “An
illegal sentence must be vacated.” Id. “Issues
relating to the legality of a sentence are questions of
law[.] … Our standard of review over such
questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227,
238 (Pa. Super. 2014) (citations omitted).
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014).
The mandatory sentencing provision of Section 9712.1 has recently
been held to be unconstitutional in its entirety as violative of the United
States Supreme Court’s ruling in Alleyne, that facts that increase
mandatory minimum sentences must be submitted to the finder of fact and
must be found beyond a reasonable doubt.6 Commonwealth v. Newman,
99 A.3d 86, 98 (Pa. Super. 2014) (en banc).
As described above, the trial court, with concern for the implications of
Alleyne, specifically presented the triggering factual determination to the
jury to find beyond a reasonable doubt. The Commonwealth argues this
precludes the relief Appellant seeks based on Alleyne. “In this case, the
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6
Because the mandatory sentence under Section 9712.1 is longer than the
mandatory sentence provided for in Section 6317, only the former was
imposed at sentencing. Our discussion, however, pertains equally to Section
6317, which was held unconstitutional in its entirety by this Court in
Commonwealth v. Bizzel, 107 A.3d 102, 105 (Pa. Super. 2014).
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jury did find that the Commonwealth established all relevant facts beyond a
reasonable doubt, including those facts triggering the mandatory minimum
sentence. Thus, the due process and Sixth Amendment concerns identified
in Alleyne were not implicated, and [Appellant] is not entitled to relief.”
Commonwealth’s Brief at 8.
We conclude the trial court’s employment of an unauthorized
alternative procedure to that mandated by Section 9712.1 is unavailing. In
Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014),
this Court determined that the mandatory minimum sentences imposed
pursuant to Sections 9712 and 9713 were unconstitutional even if the facts
that trigger the mandatory minimum sentence are submitted to the fact-
finder and found beyond a reasonable doubt, instead of by the trial court by
a preponderance of evidence at sentencing. Valentine, supra at 811-812.
In so concluding, the Court recognized that our decision in Newman held
“that the unconstitutional provisions of [comparable mandatory sentencing
provisions] are not severable … and that the statutes are therefore
unconstitutional as a whole.” Id.; see also Commonwealth v. Fennell,
105 A.3d 13, 20 (Pa. Super. 2014) (holding that notwithstanding the fact
triggering the imposition of a mandatory sentence under 18 Pa.C.S.A. 7508
was stipulated to at trial, the statute was facially unconstitutional under the
principles of Newman and Valentine), Commonwealth v. Wolfe, 106
A.3d. 800, 805-806 (Pa. Super. 2014) (holding that the mandatory
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minimum sentencing provision of 42 Pa.C.S.A. 9718(a)(1) was
unconstitutional even though the triggering fact was also an element of the
offense for which Appellant was convicted). Construing a similarly worded
provision in 42 Pa.C.S.A. § 6317(b), we noted, “that, pursuant to Alleyne,
Section 6317(b) is now an element of the crime despite the language in the
statute specifically stating that it was not an element. Thus, the
legislature clearly did not intend the result mandated by the decision in
Alleyne.” Commonwealth v. Bizzel, supra at 105 (emphasis in original).
As we noted in Newman, “it is manifestly the province of the General
Assembly to determine what new procedures must be created in order to
impose mandatory minimum sentences in Pennsylvania following Alleyne.”
Newman, supra at 101-102.
Acknowledging Newman’s holding, the Commonwealth alternatively
argues any error is harmless. Commonwealth’s Brief at 9.
The consistent point that emerges from [recent
Superior Court] decisions, however, is even where
Alleyne is not complied with, that is, even where
sentencing factors that increase a sentence are left
to a judge rather than a jury to determine, such
error can be deemed harmless. When such analysis
is applied here, where there was no Alleyne error,
[Appellant] is not entitled to relief.
Id.
We disagree. This Court has recently explained as follows.
As noted above, Newman did acknowledge that
Alleyne errors, like those under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d
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435 (2000), are subject to harmless error analysis.
See generally Newman, supra at 98–100.
However, if Newman’s overriding conclusion is, as
Valentine suggests, that mandatory minimum
statutes in Pennsylvania must be stricken in their
entirety as facially unconstitutional, any discussion of
harmless error is rendered moot. This is because,
once the Court concludes that the subsections
cannot be severed and must all be struck down,
there is no statutorily authorized sentence upon
which a harmless error analysis may be applied.
See, e.g., Rivera, supra (stating, “[i]f no statutory
authorization exists for a particular sentence, that
sentence is illegal and subject to correction[]”)
(citation omitted).
Fennell, supra at 19 n.5. The Commonwealth’s reliance on
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc),
appeal denied, 95 A.3d 277 (Pa. 2014), and Commonwealth v. Matteson,
96 A.3d 1064 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014),
as support for the application of harmless error analysis is misplaced in light
of Newman and Valentine.
In Valentine, this Court noted the tension between
Newman, Watley, and Matteson. See Valentine,
supra at 812 n. 4. However, the Valentine Court
concluded that Newman controlled based on the
conclusion in Newman that the subsections of the
mandatory minimum statutes in Pennsylvania cannot
be severed. Id. Based on the above passage, it
appears that the Matteson Court concluded that
Section 9718(a)(2) could still be constitutionally
applied since the Commonwealth “proved every
element of aggravated indecent assault of a child
beyond a reasonable doubt, including a victim under
the age of 13[.]” Matteson, supra at 1067.
However, the Matteson Court could not reach that
conclusion, unless it first concluded implicitly that
the various subsections of Section 9718 were
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severable. Pursuant to this Court’s decision in
Newman, we conclude this is not correct. In our
view, Newman abrogated this Court’s decision in
Matteson.
Wolfe, supra at 806 (footnote omitted).
For these reasons, we conclude the trial court imposed an illegal
sentence that must be corrected. See Cardwell, supra. Accordingly, we
vacate the September 20, 2013 judgment of sentence and remand for
resentencing.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Wecht joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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