Com. v. Slaughter, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE SLAUGHTER,
Appellant No. 3270 EDA 2013
Appeal from the Judgment of Sentence July 6, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015984-2009
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015
George Slaughter1 appeals from the judgment of sentence of six to ten
years incarceration that the trial court imposed after a jury convicted him of
possession of a controlled substance (marijuana) with intent to deliver
(“PWID”), possession of a firearm by a prohibited person, and possession of
an instrument of crime. We vacate the judgment of sentence and remand
for re-sentencing.
The pertinent facts were outlined by the trial court herein:
On November 19, 2009, the Defendant, George Slaughter,
was arrested and was charged with inter alia, possession of a
controlled substance with the intent to deliver, possession of an
instrument of crime, and possession of a firearm by a person
ineligible for events which occurred at or near 607 Mifflin Street
in the City and County of Philadelphia.
1
The Commonwealth, which had until January 2, 2015 to file a brief in this
matter, has not submitted that document.
*
Former Justice specially assigned to the Superior Court.
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A jury trial was conducted before this court on May 3,
2011. Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, the following evidence was
proved at trial: Police Officer Jeffrey Galazka conducted an
investigation of 607 Mifflin Street on November 17, 2009 based
on information he had received from an informant regarding the
sale of narcotics at that address. Between the hours of 3 p.m.
and 5 p.m., Officer Galazka, with his partner, Police Officer Kidd
(first name not given) sat in an unmarked vehicle and observed
their confidential informant (CI) attempt to purchase narcotics at
that location. Someone (not the Defendant) answered the door
and the CI entered the residence. Approximately two (2)
minutes later, the CI returned to Officer Galazka’s vehicle and
turned over two (2) red-tinted zip-lock packets each containing
an offwhite chunky substance of alleged crack-cocaine.
Based on Officer Galazka's observation, a search warrant
for the property was obtained and executed on November 19,
2009. In a second floor bedroom, Officer Galazka found the
Defendant standing at the foot of the bed. The Defendant told
Officer Galazka that a firearm was located under a bed pillow.
From that location, the officer recovered a .22 caliber five-shot
revolver loaded with five (5) live rounds. Officer Galazka also
observed a small safe sitting on the bed. He opened the safe
which contained marijuana, a bottle containing 93 pills (later
identified as Xanax), a digital scale, and numerous new and
unused packaging in different colors. A work ID card and mail
with address of the Defendant was also found. . . .
Trial Court Opinion, 6/19/14, at 1-2 (footnotes and citations to record
omitted). In the safe, there were twelve sandwich bags and forty-four
smaller, blue and pink zip-lock packets. All of the packages contained
marijuana.
Appellant was sentenced on July 6, 2011. In the information, the
Commonwealth had indicated that it intended to proceed both under the
mandatory minimum applicable based upon the weight of the marijuana, 18
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Pa.C.S. § 7508, which will be analyzed infra, as well as the mandatory
minimum outlined in 42 Pa.C.S. § 9712.1, which applies when guns are
found in close proximity to drugs and which also will be examined in full
infra. At sentencing, the prosecution similarly indicated that it considered
both to be at play. The Commonwealth noted that a jury found Appellant
“guilty of possession with intent to deliver marijuana and a gun. It’s a
mandatory sentence in this case.” N.T. Sentencing, 7/6/11, at 5.
Separately, it observed that, with respect “to the marijuana, there will not
be a minimum or maximum as normally would be the case,” and that the
court “could only give a flat five-year sentence.” Id. Later, the
Commonwealth mentioned that Appellant had a prior record score that
included a “conviction for selling drugs” as well as various firearms offenses.
Id. at 9. It continued, “So for those reasons the Commonwealth is asking for
a sentence of five years for the marijuana PWID[.]” Id. at 11. These
statements pertain to application of § 7508.
While the sentencing court did not explicitly state which mandatory it
was applying, it appears to have applied § 7508. The court stated, “On the
marijuana case, based on the fact that, you know, it’s a mandatory
minimum sentence, it just so happens that the mandatory sentence in that
case is the maximum sentence as well, so I’m going to have to impose that
sentence.” Id. at 12. Thus, the court did not mention the gun and imposed
the sentence solely based upon the fact that the marijuana case had a
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mandatory minimum. Next, in addition to the flat sentence of five years on
the PWID, the court imposed a consecutive one to five year term of
incarceration on the firearms offense, for a total sentence of six to ten years
in jail.
Appellant did not file a direct appeal, but he did file a timely PCRA
petition on December 9, 2011. Counsel was appointed, and, on July 31,
2012, counsel filed an amended petition averring that Appellant’s appellate
rights should be reinstated since his trial counsel ignored Appellant’s request
to file a direct appeal. On July 13, 2013, the Commonwealth agreed that the
requested relief should be accorded.
On October 31, 2013, the PCRA court granted reinstatement of
Appellant’s direct appeal rights. Appellant thereafter filed the present,
timely nunc pro tunc appeal. Appellant complied with the trial court’s
directive to file a Pa.R.A.P. 1925(b) statement and raised one issue: “The
Court erred in imposing the mandatory minimum sentence in this matter for
the conviction for possession of marijuana because the Commonwealth did
not produce at trial sufficient evidence of the amount of marijuana
recovered.” Statement of Matters Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), 4/11/14, at 1.
The trial court authored a response to this position. It indicated that it
did not impose the five-year mandatory minimum sentence as to the PWID
charge based upon the weight of the marijuana under 18 Pa.C.S. § 7508.
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Rather, the trial court reported that it imposed the sentence pursuant to 42
Pa.C.S. § 9712.1(a) “once the court determined that the Defendant was
found with a gun and 280 grams of marijuana.” Trial Court Opinion,
6/19/14, at 6.
On appeal, Appellant raises one contention, “Is the mandatory
sentence in this case an illegal sentence?” Appellant’s brief at 9. Appellant
avers that he was sentenced under a statute declared unconstitutional by
the Supreme Court in Alleyne v. United States, U.S. , 133 S. Ct. 2151
(2013). He maintains that, while not raised below, this contention cannot be
waived as it relates to the legality of his sentence. We agree with
Appellant’s contentions and therefore vacate the sentence and remand for
re-sentencing.
Initially, we note that the record is unclear as to which mandatory
minimum was applied herein. In its Pa.R.A.P. 1925(a) opinion, the court
indicated that it sentenced pursuant to 42 Pa.C.S. § 9712.1(a). That statute
provides, in relevant part that, if a person is convicted of violating 35 P.S. §
780-113(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act
(the “Act”), as Appellant was herein, the person must be sentenced to at
least five years total confinement when, at the time of the offense, a firearm
is in close proximity to the controlled substance.2 It justified its sentence
2
That statute’s full text is as follows:
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based upon the fact that the jury determined that Appellant possessed a
weapon, which was under the pillow on a bed, and that the jury also found
that Appellant possessed the marijuana found in a safe located in the same
area.
The other mandatory minimum mentioned in the information and at
the sentencing proceeding is outlined in 18 Pa.C.S. § 7508, which relates to
drug trafficking sentencing and penalties. That statute provides in relevant
part that, if a person is convicted of violating 35 P.S. § 780-113(30) of the
Act, where the controlled substance is classified as a Schedule I3 drug under
the Act, the person must be sentenced to five years imprisonment if the
weight of the drugs was between ten and 100 grams and if the person has a
prior drug trafficking conviction.”4 In both statutes, the applicability of the
(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), 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.
42 Pa.C.S. § 9712.1(a).
3
“Marihuana” is a Schedule I drug under the Act. 35 P.S. 780-104(1)(iv).
4
The full text of the portion of § 7508 at issue herein is as follows
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mandatory minimums is determined by the sentencing court by a
preponderance-of-the-evidence standard.5
(2) 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 or a mixture
containing it is classified in Schedule I or Schedule II under
section 4 of that act and is a narcotic drug shall, upon
conviction, be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this subsection:
....
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000 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: five
years in prison and $30,000 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)(2).
5
Specifically, 42 Pa.C.S. § 9712.1 provides:
(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. § 9712.1(c).
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However, as noted, it appears that the Commonwealth invoked both
statutes, and the trial court could have applied either one. In light of the
fact that either mandatory minimum was potentially implicated herein, we
will analyze Appellant’s present claim with respect to both mandatory
minimum sentencing statutes. We first 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 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 “if 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).
Likewise, 18 Pa.C.S. § 7508 states:
(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(b).
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Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014). Appellant
did not raise an Alleyne issue at sentencing or in his Pa.R.A.P. 1925(b)
statement. However, in Commonwealth v. Watley, 81 A.3d 108, 118
(Pa.Super. 2013) (en banc) (citations omitted), we noted, “Application of a
mandatory minimum sentence gives rise to illegal sentence concerns, even
where the sentence is within the statutory limits. Legality of sentence
questions are not waivable and may be raised sua sponte by this Court.”
We have recently explained the holding and impact of Alleyne as
follows:
In Alleyne, the Supreme Court held that “facts that increase
mandatory minimum sentences must be submitted to the jury”
and must be found beyond a reasonable doubt. Alleyne, supra
at 2163. Alleyne is an extension of the Supreme Court's line of
cases beginning with Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Alleyne, the Court
overruled Harris v. United States, 536 U.S. 545, 122 S. Ct.
2406, 153 L. Ed. 2d 524 (2002), in which the Court had reached
the opposite conclusion, explaining that there is no constitutional
distinction between judicial fact finding which raises the
minimum sentence and that which raises the maximum
sentence.
Feeney, supra at 16 (citation omitted).
This Court has held that, under Alleyne, 18 Pa.C.S. § 7508 is
unconstitutional in its entirety.6 Commonwealth v. Vargas, 2014 WL
7447678 (Pa.Super. 2014) (en banc); Commonwealth v. Cardwell, 2014
6
The fact of the prior conviction invoking § 7508(a)(2)(ii) does not implicate
Alleyne, see Apprendi v. New Jersey, 530 U.S. 466 (2000), but the
weight of the drugs required to apply that section does.
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WL 6656644 (Pa.Super. 2014); Feeney, supra; Commonwealth v.
Thompson, 93 A.3d 478, 493 (Pa.Super. 2014). Additionally, 42 Pa.C.S. §
9712.1 has been completely struck down as unconstitutional pursuant to the
Alleyne decision. Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc); see also Commonwealth v. Ferguson, 2015 WL 49438
(Pa.Super. 2015) (vacating sentence imposed under 42 Pa.C.S. § 9712,
which concerns a mandatory minimum on offenses committed with a firearm
under certain circumstances); Commonwealth v. Valentine, 101 A.3d
801, 808 (Pa.Super. 2014) (same); Commonwealth v. Bizzel, 2014 WL
6756277 (Pa.Super. 2014) (invalidating 18 Pa.C.S. § 6317, imposing a
mandatory minimum sentence and pertaining to the sale of drugs within a
certain distance from a school); Commonwealth v. Wolfe, 2014 WL
7331915 (Pa.Super. 2014) (observing that any mandatory minimum statute
in Pennsylvania that contains a format allowing the sentencing court to
determine its application at sentencing by a preponderance of the evidence
standard has been “struck down as facially unconstitutional in Newman and
Valentine,” including 42 Pa.C.S.A. §§ 9712, 9712.1, 9713, and 9718).7
7
This author has noted her disagreement with the severability analysis in
the cited cases. Commonwealth v. Wolfe, 2014 WL 7331915 (Pa.Super.
2014) (Bowes, J., concurring); Commonwealth v. Bizzel, 2014 WL
6756277 (Pa.Super. 2014) (Bowes, J., concurring). Furthermore, the issue
is currently under review by our Supreme Court. Commonwealth v.
Hopkins, 98 MAP 2013.
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Under this recent authority, it is clear that Appellant must be
resentenced without application of either mandatory minimum arguably
applicable herein.
Judgment of sentence vacated. Case remanded for resentencing in
accordance with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2015
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