Com. v. Vargas, J.

J. E01004/14
2014 PA Super 289COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSE VARGAS, : No. 1415 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, February 6, 2012,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0001895-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, ALLEN, LAZARUS, MUNDY AND OLSON, JJ.
CONCURRING STATEMENT BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 31, 2014
I join in the Majority’s decision but write separately to further support
the reasoning of Commonwealth v. Newman.1 In Newman, which I
authored for the en banc court, we determined that the mandatory
minimum sentencing statute, 42 Pa.C.S.A. § 9712.1, was non-severable
pursuant to the reasoning of Alleyne.
The prime impetus for this result is that without the enforcement arm
of § 9712.1(c), trial courts were without a legislatively sanctioned procedure
for determining how the predicate arm of § 9712.1(a) should be applied.
Clearly, the intent of the Legislature in enacting such mandatory provisions
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was to leave very little discretion with the trial courts in imposing sentence
and to allow for a much lesser burden of proof and production on the
Commonwealth. Following Alleyne, it is this sentencing structure itself that
is no longer workable.
We took the position in Newman that following Alleyne, the
continuing viability of several mandatory minimum statutes in this
Commonwealth was in question and any remedial action was better left to
the legislative process. The Legislature may well determine that the criminal
offense statutes may more appropriately be amended to include the Alleyne
aggravating factors or rewrite the mandatory sentencing statutes to meet
constitutional requirements. What appears clear following Alleyne is that
any factors required to be determined beyond a reasonable doubt by the
fact-finder can no longer be considered “sentencing factors” within the
rubric of such statutes as involved herein, but rather are elements which will
aggravate the conviction of the offense itself. Just as the grading of
offenses goes to the conviction and not to sentencing, so too such factors as
possession of a firearm in close proximity to drugs or the amount of the
contraband that the defendant is found in possession of2 or dealing
1
I respectfully recognize that the Majority’s author did not join in this
rationale but rather joined the Concurring Opinion in Newman that would
have allowed for severance.
2
I recognize that in this case appellant stipulated to the weight of the
heroin; however, I agree with my learned colleague in dissent that the trial
in this case was pre-Alleyne and that with the higher post-Alleyne
-2-
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contraband in a school zone are now aggravating elements of the offense of
possession and possession with the intent to deliver contraband. Hence,
Newman’s determination that any remedial action is better left to the
legislative process.
Judges Panella, Donohue, and Lazarus join this Concurring Statement.
standard of proof for the same fact, counsel may well have not entered into
the stipulation. However, once the Legislature has an opportunity to decide
on remedial action, I see no reason why stipulations and guilty pleas should
not have the same effect as always on limiting the Commonwealth’s burden
of production and satisfying its burden of proof.
-3-