Com. v. Fennell, C.

J-A30016-14
2014 Pa. Super. 261
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CASEEN FENNELL
Appellant No. 2610 EDA 2013
Appeal from the Judgment of Sentence August 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013779-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
OPINION BY MUNDY, J.: FILED NOVEMBER 21, 2014
Appellant, Caseen Fennell, appeals from August 12, 2013 aggregate
judgment of sentence of three to six years’ imprisonment after he was
convicted of one count each of possession with intent to deliver (PWID) and
intentional possession of a controlled substance.1 After careful review, we
vacate and remand for resentencing.
We summarize the relevant factual and procedural history of this case
as follows. On November 29, 2012, the Commonwealth filed an information,
charging Appellant with the above-mentioned offenses. On May 1, 2013,
Appellant proceeded to a bench trial, at the conclusion of which, the trial
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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court found Appellant guilty of the same. On August 12, 2013, the trial
court sentenced Appellant to three to six years’ imprisonment for PWID, and
no further penalty for the possession charge, as the counts merged for the
purposes of sentencing. Relevant to this appeal, Appellant received a three-
year mandatory minimum sentence on the basis of the weight of the heroin,
pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i). On August 23, 2013, Appellant
filed an untimely post-sentence motion, but the trial court did not take any
action. On September 11, 2013, Appellant filed a timely notice of appeal. 2
On appeal, Appellant raises the following issue for our review.
Did not the [trial] court err in applying certain
provisions of the mandatory minimum sentencing
statute at 18 Pa.C.S. § 7508 to [Appellant]’s case,
and thereby sentencing [Appellant] to a term of
incarceration of 3 to 6 years, in that portions of
[Section] 7508 are facially unconstitutional pursuant
to Alleyne v. United States, 133 S. Ct. 2151
(2013), and are non-severable from the remaining
portions of the statute?
Appellant’s Brief at 3.
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 entertained as long as the reviewing court has jurisdiction.”
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2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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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).
In this case, Appellant was sentenced under a mandatory minimum
statute at Section 7508, which provides in relevant part as follows.
§ 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:
…
(7) 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 heroin shall, upon
conviction, be sentenced as set forth in this
paragraph:
(i) when the aggregate weight of the
compound or mixture containing the
heroin involved is at least 1.0 gram but
less than 5.0 grams the sentence shall
be a mandatory minimum term of two
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years 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: a mandatory
minimum term of 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
…
(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.A. § 7508.
This Court recently explained Alleyne’s impact on the imposition of
mandatory minimum sentences 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 (2000). In Alleyne, the Court
overruled Harris v. United States, 536 U.S. 545
(2002), in which the Court had reached the opposite
conclusion, explaining that there is no constitutional
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distinction between judicial fact finding which raises
the minimum sentence and that which raises the
maximum sentence.
It is impossible to dissociate the floor of
a sentencing range from the penalty affixed to
the crime. Indeed, criminal statutes have long
specified both the floor and ceiling of sentence
ranges, which is evidence that both define the
legally prescribed penalty. This historical
practice allowed those who violated the law to
know, ex ante, the contours of the penalty that
the legislature affixed to the crime—and
comports with the obvious truth that the floor
of a mandatory range is as relevant to
wrongdoers as the ceiling. A fact that
increases a sentencing floor, thus, forms an
essential ingredient of the offense.
Moreover, it is impossible to dispute that
facts increasing the legally prescribed floor
aggravate the punishment. Elevating the low-
end of a sentencing range heightens the loss of
liberty associated with the crime: the
defendant’s expected punishment has
increased as a result of the narrowed range
and the prosecution is empowered, by invoking
the mandatory minimum, to require the judge
to impose a higher punishment than he might
wish. Why else would Congress link an
increased mandatory minimum to a particular
aggravating fact other than to heighten the
consequences for that behavior? This reality
demonstrates that the core crime and the fact
triggering the mandatory minimum sentence
together constitute a new, aggravated crime,
each element of which must be submitted to
the jury.
Alleyne, supra at 2160-2161 (internal quotation marks
and citations omitted).
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Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (Pa.
Super. 2014). Although Appellant was convicted at a bench trial, under the
Due Process Clause, he was still entitled to have the extra element of the
aggravated offense found by the factfinder beyond a reasonable doubt
pursuant to Alleyne and In re Winship, 397 U.S. 358 (1970). Alleyne,
supra at 2156.
This Court has recently noted that Section 7508(a)(2)(ii) cannot be
constitutionally applied in light of Alleyne, resulting in an illegal sentence.
See Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa. Super. 2014)
(resolving an as-applied challenge to Section 7508(a)(2)(ii) in Thompson’s
favor in light of Alleyne and remanding for resentencing). However, in this
case, Appellant argues that Section 7508 is facially unconstitutional in its
entirety and its subsections cannot be severed from one another.
Appellant’s Brief at 13-22. The Commonwealth counters that because
Appellant stipulated to the drug weight for the purposes of trial, any error
regarding Alleyne was rendered harmless. Commonwealth’s Brief at 10-12.
Both parties cite to this Court’s recent decision in Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).
In Newman, this Court confronted the same type of challenge to the
mandatory minimum found at Section 9712.1, regarding the distance
between drugs and guns. Id. at 91. Section 9712.1 has the same format
as Section 7508 in that one subsection contains the added element of the
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aggravated offense, and another subsection states that the elements shall
be found by the trial court by a preponderance of the evidence. See id.,
quoting 42 Pa.C.S.A. §§ 9712.1(a), 9712.1(c); 18 Pa.C.S.A.
§§ 7508(a)(7)(i), 7508(b).
The Newman Court first concluded that the defendant’s sentence was
illegal in light of Alleyne and required this Court to vacate and remand for
resentencing. Id. at 98. However, this Court noted that Alleyne issues are
subject to harmless error analysis, but nevertheless concluded that the
Alleyne issue in Newman was not harmless. Id. at 98-100.
We cannot find that the error here was
harmless, because the evidence as to the element of
“in close proximity” was not necessarily
overwhelming. As previously noted, the drug
contraband was found in a bathroom. The firearm
was found under a mattress in a bedroom across the
hallway, and the actual distance between the
contraband and the firearm was six to eight feet.
Recently, our supreme court discussed at length the
meaning of “in close proximity” as it is used in
Section 9712.1. See Commonwealth v. Hanson,
82 A.3d 1023 (Pa. 2013), generally. The Hanson
court noted that the concept of “in close proximity” is
inherently imprecise and observed the differing
conclusions as to its meaning both among the courts
of this Commonwealth and among the courts of
other jurisdictions. Hanson, 82 A.3d at 1037–1038,
and otherwise, generally. If learned jurists cannot
decide with precision what constitutes “in close
proximity,” we cannot say with finality that a panel
of lay jurors would undoubtedly conclude from the
evidence here that the firearm was “in close
proximity” to the drug contraband.
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Id. at 99-100. Finally, this Court rejected the Commonwealth’s argument
that if the error was not harmless, the appropriate remedy would be to
remand to the trial court to empanel a second sentencing jury. Specifically,
in rejecting this argument, the Newman Court concluded that Section
9712.1 in its entirety must be struck down as unconstitutional in light of
Alleyne, concluding that its subsections were not severable.3
The Commonwealth’s suggestion that we
remand for a sentencing jury would require this
court to manufacture whole cloth a replacement
enforcement mechanism for Section 9712.1; in other
words, the Commonwealth is asking us to legislate.
We recognize that in the prosecution of capital cases
in Pennsylvania, there is a similar, bifurcated process
where the jury first determines guilt in the trial
proceeding (the guilt phase) and then weighs
aggravating and mitigating factors in the sentencing
proceeding (the penalty phase). However, this
mechanism was created by the General Assembly
and is enshrined in our statutes at 42 Pa.C.S.A. §
9711. We find that 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. We cannot do so.
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3
The author in this case concurred in the result in Newman, disagreeing
with the majority that the subsections of Section 9712.1 could not be
severed, concluding that no special “mechanism” was required to allow a
jury to find the element of the aggravated offense beyond a reasonable
doubt. Id. at 105 (Mundy, J., concurring). The author continues to believe
Newman was wrongly decided on that point; however, it is binding on this
Court and must be applied in a principled manner in all future cases unless
reversed by our Supreme Court.
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Id. at 102.4
In the case sub judice, during trial, Appellant stipulated to certain
laboratory reports. N.T., 5/1/13, at 59-60. Relevant to this appeal, one
laboratory report was for 55 clear packets of a substance, the packets were
labeled “Magnet,” and the substance was an “off-white powder.” N.T.,
5/1/13, Commonwealth’s Exhibit C-4, at 1. The report noted that one
packet was analyzed as containing heroin and weighed 37 milligrams. Id.
The report also noted that the “packaging and material … [were] consistent
in appearance.” Id. Therefore, the Commonwealth argues, and the trial
court concluded, that the remaining 54 packets contained at least 37
milligrams as well, which in the aggregate, would bring the total weight to
2.035 grams. Commonwealth’s Brief at 5 n.2; Trial Court Opinion, 1/16/14,
at 5-6. Based on this, the Commonwealth argues that any Alleyne error
was harmless. Commonwealth’s Brief at 8.
However, we are mindful of this Court’s recent decision in
Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super.
2014). In Valentine, the Commonwealth sought to have a mandatory
minimum sentence imposed against the defendant. The trial court allowed
the Commonwealth to amend the information to include the necessary
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4
We note the Commonwealth has filed a petition for allowance of appeal
with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the
date of this decision, it is still pending.
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additional elements required by Alleyne to be found by the jury beyond a
reasonable doubt. Id. at *1. The two questions were submitted to the jury,
and it found the additional elements beyond a reasonable doubt. Id. As a
result, the trial court imposed the appropriate mandatory minimum
sentences pursuant to the appropriate statutes. Id.
Although the trial court seemingly followed Alleyne’s requirements,
the Valentine Court held that the trial court was not permitted to allow the
jury to resolve the mandatory minimum questions absent legislative action
in accordance with Newman.
Here, the trial court permitted the jury, on the
verdict slip, to determine beyond a reasonable doubt
whether Appellant possessed a firearm that placed
the victim in fear of immediate serious bodily injury
in the course of committing a theft for purposes of
the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred
in whole or in part at or near public transportation,
for purposes of the mandatory minimum sentencing
provisions of 42 Pa.C.S.A. § 9713(a). The jury
responded “yes” to both questions. In presenting
those questions to the jury, however, we conclude,
in accordance with Newman, that the trial court
performed an impermissible legislative function by
creating a new procedure in an effort to impose the
mandatory minimum sentences in compliance with
Alleyne.
The trial court erroneously presupposed that
only Subsections (c) of both 9712 and 9713 (which
permit a trial judge to enhance the sentence based
on a preponderance of the evidence standard) were
unconstitutional under Alleyne, and that
Subsections (a) of 9712 and 9713 survived
constitutional muster. By asking the jury to
determine whether the factual prerequisites set forth
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in § 9712(a) and § 9713(a) had been met, the trial
court effectively determined that the unconstitutional
provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds
that the unconstitutional provisions of § 9712(c) and
§ 9713(c) are not severable but “essentially and
inseparably connected” and that the statutes are
therefore unconstitutional as a whole. Id. at 13–14.
(“If Subsection (a) is the predicate arm … then
Subsection (c) is the enforcement arm. Without
Subsection (c), there is no mechanism in place to
determine whether the predicate of Subsection (a)
has been met.”).
Moreover, Newman makes clear that “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 at 14.
Therefore, the trial court lacked the authority to
allow the jury to determine the factual predicates of
§§ 9712 and 9713. See Newman at 14–15
(recognizing that several trial courts of this
Commonwealth have found Section 9712.1 as a
whole to be no longer workable without legislative
guidance).
Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence
and remanded for resentencing, without the applicable mandatory minimum
sentences.5 Id. at *9.
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5
As noted above, Newman did acknowledge that Alleyne errors, like those
under Apprendi v. New Jersey, 530 U.S. 466 (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
(Footnote Continued Next Page)
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In the instant case, as noted above, Appellant stipulated to laboratory
reports that, at a minimum, suggest that the total weight of the heroin was
2.035 grams. N.T., 5/1/13, at 60-62, Commonwealth’s Exhibit C-4. As a
result, the trial court concluded that the Commonwealth did prove this
element to the trial court beyond a reasonable doubt, as required by
Alleyne and Winship. Trial Court Opinion, 1/16/14, at 5-6. However, the
trial court’s opinion reveals that this conclusion was solely premised on its
belief that Section 7508(b), which permits the trial court to find the
necessary elements by a preponderance of the evidence, was severable from
the rest of the statute. Id. at 3-5. Pursuant to this Court’s decision in
Newman, this conclusion was not correct.
Furthermore, we see no meaningful difference, for the purposes of
Newman and Valentine between submitting the element to the jury and
accepting a stipulation from a defendant. They both have the purpose of
finding a method to impose a mandatory minimum sentence outside the
statutory framework, but consistent with Alleyne. However, both Newman
and Valentine unequivocally state that creating a new procedure in an
effort to impose a mandatory minimum sentence is solely within the
province of the legislature. See Newman, supra; Valentine, supra.
_______________________
(Footnote Continued)
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).
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While submission to a jury is a more formal and involved procedure, we
decline to fracture Newman and Valentine further by concluding that when
read together, they only prohibit formal mandatory minimum procedures,
but permit informal ones. Based on these considerations, we conclude that
the trial court erred in imposing the mandatory minimum sentence in this
case. As a result, Appellant is entitled to relief.
Based on the foregoing, we are constrained to conclude the trial court
erred in imposing the mandatory minimum sentence in light of this Court’s
recent decisions in Newman and Valentine. Accordingly, the trial court’s
August 12, 2013 judgment of sentence is vacated, and the case is remanded
for resentencing, without the mandatory minimum, consistent with this
opinion.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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