Com. v. McCullough, C.

J-S60042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CRAIG MCCULLOUGH
Appellant No. 413 MDA 2014
Appeal from the Judgment of Sentence August 8, 2012
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000407-2011
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 15, 2014
Appellant, Craig McCullough, appeals from the judgment of sentence
entered in the Lycoming County Court of Common Pleas following his jury
trial convictions for possession of a controlled substance, possession with
intent to deliver (“PWID”), and possession of paraphernalia.1 We vacate the
judgment of sentence and remand for further proceedings.
The relevant facts and procedural history of this appeal are as follows.
On February 3, 2011, police entered the residence of 1643 Memorial
Avenue, in Williamsport, Pennsylvania, to execute an arrest warrant on Bilar
Sabui. While apprehending Sabui, police officers encountered Appellant and
another male in the residence. They also observed controlled substances,
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1
35 P.S. § 780-113(a)(16), (30), (32) respectively.
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drug paraphernalia, and firearms in plain view. After obtaining a search
warrant, police officers discovered prepackaged crack cocaine and heroin,
drug paraphernalia, and three firearms in the residence. Police officers
determined Appellant inhabited one of the rooms in the home after
discovering several identifying items, including his birth certificate, a work
ID card, and a personal letter addressed to Appellant therein. Officers
charged Appellant with one count of PWID, one count of possession of crack
cocaine, one count of possession of heroin, and one count of possession of
drug paraphernalia.2
On March 12, 2012, a jury convicted Appellant of possession of crack
cocaine, possession of heroin, and possession of drug paraphernalia, but did
not come to a decision on the PWID charge. On June 13, 2012, however, a
second jury convicted Appellant of PWID.
On August 8, 2012, Appellant appeared before the court for sentencing
on all convictions. Pursuant to 18 Pa.C.S. § 7508, the court found, by a
preponderance of the evidence, that Appellant was in possession of 2-10
grams of crack cocaine for purposes of his PWID charge.3 Pursuant to 42
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2
Appellant was also charged with possession of a firearm, but the court
subsequently dismissed this charge upon motion of the Commonwealth.
3
At his sentencing hearing, Appellant conceded to possessing 11.1 grams of
cocaine at the time of his arrest, however, he claimed that at least 1.2
grams would be consumed by the occupants of the residence, including
himself, leaving less than 10 grams for the PWID charge.
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Pa.C.S. § 9712.1, the court also found by a preponderance of the evidence
that Appellant was in possession of a firearm when he committed the crime
of PWID. The court sentenced Appellant to five (5) to ten (10) years’
incarceration, the mandatory minimum sentence under Section 9712.1.4
The possession of crack cocaine conviction merged with the PWID conviction
for sentencing purposes. The court also imposed a concurrent sentence of
three (3) months to two (2) years’ incarceration for possession of heroin,
and an adjudication of guilt without further penalty for possession of drug
paraphernalia.
On August 22, 2012, Appellant filed untimely post-sentence motions,
which the court denied. On October 19, 2012, Appellant filed a notice of
appeal. On December 14, 2012, this Court quashed Appellant’s notice of
appeal as untimely. On December 13, 2013, Appellant filed a petition
pursuant to the Post Conviction Relief Act (“PCRA”),5 alleging his counsel
was ineffective for failing to timely file a notice of appeal.
On February 5, 2014, the court granted Appellant’s PCRA petition and
reinstated Appellant’s appellate rights nunc pro tunc. Appellant then timely
filed a notice of appeal on March 4, 2014. On March 10, 2014, the court
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4
The court did not impose any mandatory minimum sentence under Section
7508, presumably because its mandatory minimum sentence of 3-6 years’
incarceration is lower than the mandatory minimum under Section 9712.1.
5
42 Pa.C.S. §§ 9541-9546.
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ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on March
17, 2014.6
Appellant raises the following issue on appeal:
WHETHER APPELLANT’S MANDATORY MINIMUM SENTENCE
OF FIVE (5) YEARS IMPOSED PURSUANT TO 42 [PA.C.S. §]
9712.1(A) CONSTITUTED A VIOLATION OF DUE PROCESS
WHERE THE COMMONWEALTH FAILED TO PROVE TO A
JURY BEYOND A REASONABLE DOUBT THE FACT(S) THAT
SUPPORT THE MANDATORY MINIMUM SENTENCE?
(Appellant’s brief at 6).
Appellant argues the court erred in imposing the mandatory minimum
sentence for PWID under Section 9712.1. Appellant contends that the
question of whether he possessed a firearm should have been submitted to a
jury and proved beyond a reasonable doubt, and that, because the
sentencing court found that he possessed a firearm only by a preponderance
of the evidence, the imposition of the mandatory minimum sentence based
on this factor violated the Due Process Clause of the Fourteenth
Amendment. We agree.
Our standard of review regarding the imposition of a mandatory
sentence is as follows:
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6
In lieu of filing a separate Rule 1925(a) opinion, the trial court submitted
its September 20, 2012 order and opinion denying Appellant’s post-sentence
motions.
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Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiveable challenge to the legality
of the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court's interpretation of
a statute. Our standard of review over such questions is de
novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super.2012).
The sentencing code provides, in relevant part:
§ 7508. Drug trafficking sentencing and penalties
(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
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exhaust the assets utilized in and the proceeds
from the illegal activity;
* * *
(b) Proof of sentencing.--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. § 7508 (a)(3)(i). The Sentencing Code further provides:
§ 9712.1. Sentences for certain drug offenses
committed with firearms
(a) Mandatory sentence.–Any person who is
convicted of violation of section [1]13(a)(30) of [] 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
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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. § 9712.1.
In Alleyne v. United States, __ U.S. __,133 S.Ct 2151, 2163, 186
L.Ed 2d 341 (2013), the Supreme Court of the United States held that the
Due Process Clause of the Federal Constitution requires each factor that
increases a mandatory minimum sentence to be submitted to a jury and
found beyond a reasonable doubt. Id. Based upon Alleyne, this Court
stated in dicta in Commonwealth v. Watley, that Sections 7508 and
9712.1 are unconstitutional insofar as they permit a judge to automatically
increase a defendant’s sentence based on a preponderance of the evidence
standard for factors other than a prior conviction. Watley, 81 A.3d 108,
117 n. 4 (Pa.Super.2013) (en banc).
More recently, in Commonwealth v. Newman, 99 A.3d 86
(Pa.Super.2014) (en banc), following our dicta in Watley, we held that the
preponderance of the evidence standard in section 9712.1(c) is
unconstitutional under Alleyne. We then addressed whether it was possible
to continue enforcing the remaining subsections of section 9712.1 after
severing subsection (c). We held that section 9712.1, as a whole, was no
longer workable, because subsection (c) was “essentially and inseparably
connected” with the mandatory minimum sentencing provision in subsection
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(a). Id., 99 A.3d at 101. We cited with approval several trial court opinions
on this subject, most notably the following analysis by the Montgomery
County Court of Common Pleas:
While the Commonwealth clearly is correct that
unconstitutional provisions of a statute may be severed in
order to effectuate the legislature’s intent in enacting that
statute, the undersigned believes that this simply is not
possible in the instant situation, where the constitutional
and unconstitutional provisions of the mandatory minimum
statutes are inextricably interwoven. In order to effectuate
the legislature’s intent for the imposition of mandatory
minimum sentences, the Commonwealth would have us
ignore the legislature’s clear intent: that the factors
triggering such sentences be found by a judge and not a
jury; that the defendant need not be informed of the
applicability of the mandatory sentence prior to
sentencing; and that the applicable standard be one of
preponderance of the evidence. The undersigned believes
it is for the legislature, and not this court, to make such
determinations. Further, and crucially, rather than asking
this court simply to ‘sever’ unconstitutional provisions
within the statutes, the Commonwealth is essentially
asking this court to rewrite them, by imposing different
burdens of proof and notification than the legislature
imposed.
Id. at 103 (citing Commonwealth v. Brockington, et al. (CCP
Montgomery Cty., March 21, 2014)) (emphasis in original). Accordingly, we
vacated the defendant’s judgment of sentence and remanded for re-
imposition of sentence “without consideration of any mandatory minimum
sentence provided by section 9712.1.” Id. at 103.
Based on Brockington and other Common Pleas Court opinions,
Newman suggested, in dicta, that 18 Pa.C.S. § 7508, as a whole, is no
longer workable in the wake of Alleyne. Newman, supra, at 102-03.
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Newman did not, however, issue a definitive ruling on Section 7508,
because Section 7508 was not implicated in the Newman defendant’s
sentence. Likewise, Section 7508 was not ultimately implicated in
Appellant’s sentence.
In this case, utilizing the preponderance of the evidence standard, the
trial court found that Appellant was in possession of a firearm during the
commission of his PWID felony and sentenced him to the mandatory
minimum according to Section 9712.1. Whether or not Appellant was in
possession of a firearm is a fact that alters the legally prescribed punishment
so as to aggravate it, and it was never submitted to a jury. Therefore, we
hold that the trial court must resentence Appellant without consideration of
any mandatory minimum sentence provided by section 9712.1.
Judgment of sentence vacated; case remanded for further
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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