Com. v. Bizzel, J.

J-S38045-14
2014 PA Super 267COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JERMAL BIZZEL, :
:
Appellant : No. 2556 EDA 2013
Appeal from the Judgment of Sentence Entered April 16, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0011725-2012.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
OPINION BY SHOGAN, J.: FILED DECEMBER 02, 2014
Appellant, Jermal Bizzel, appeals from the judgment of sentence
entered on April 16, 2013, in the Philadelphia County Court of Common
Pleas. In this appeal, Appellant argues that the unconstitutional provisions
of 18 Pa.C.S. § 6317 (Drug-free school zones) cannot be severed from the
remainder of the statute, and therefore, the entire statute should be
declared void and unenforceable. We conclude they cannot be severed, and
thus hold that 18 Pa.C.S. § 6317 is unconstitutional. Accordingly, we affirm
Appellant’s convictions, but we vacate the judgment of sentence and remand
for resentencing.
On June 14, 2012, the Philadelphia Narcotics Enforcement Team
conducted surveillance in the 2900 block of South Sydenham Street in South
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Philadelphia. N.T., 2/5/13, at 10-12. Police Officers witnessed Appellant
engage in the sale of a controlled substance, later identified as four Xanax
pills, on the street in front of 2937 South Sydenham Street. Id. at 13-17,
37-39. Appellant was arrested and charged with possession of a controlled
substance with intent to deliver (“PWID”), possession of a controlled
substance, and criminal conspiracy. Criminal Complaint, 6/15/12. Following
a bench trial, Appellant was found guilty on all counts. N.T., 2/5/13, at 50.
On April 16, 2013, the trial court sentenced Appellant on the PWID
conviction to a term of two to four years of incarceration pursuant to the
mandatory minimum requirements under 18 Pa.C.S. § 6317, relating to
sales of controlled substances in drug-free school zones. N.T., 4/16/13, at
57-58. In doing so, the trial court found by a preponderance of the evidence
that the drug transaction occurred within one thousand feet of a school.
N.T., 4/16/13, at 56. The trial court further concluded that the possession
of a controlled substance conviction merged with PWID for sentencing
purposes. The trial court then imposed a consecutive sentence of two years
of probation for the conspiracy conviction. Id.
Appellant filed a timely post-sentence motion that was denied by
operation of law on August 22, 2013. Thereafter, Appellant filed a timely
notice of appeal on September 5, 2013. Both the trial court and Appellant
have complied with Pa.R.A.P. 1925.
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On appeal, Appellant presents one issue for this court’s consideration:
Should not the mandatory minimum sentencing statute, 18
Pa.C.S. § 6317 Drug-free school zones, be declared void and
unenforceable, where multiple procedural provisions within the
statute are unconstitutional under the holding in Alleyne v.
United States,[1] and cannot properly be severed from the
remaining statute?
Appellant’s Brief at 3 (footnote added).
On April 16, 2013, the date Appellant was sentenced, the
Commonwealth was required to prove by a preponderance of the evidence
that Appellant sold controlled substances in a drug free school zone, as
defined in 18 Pa.C.S. § 6317, with the trial judge determining whether the
mandatory minimum sentence applied at the time of sentencing. However,
on June 17, 2013, in the Alleyne decision, the United States Supreme Court
held that facts which increase a mandatory minimum sentence are elements
of the crime and must be proven beyond a reasonable doubt. 2 Here,
Appellant filed a timely post-sentence motion challenging the
constitutionality of the mandatory minimum in anticipation of the decision in
1
Alleyne v. United States, 133 S.Ct. 2151 (2013).
2
The mandate that facts that increase a mandatory minimum are elements
of the crime and are required to be proven beyond a reasonable doubt
applies in both bench trials and jury trials. See Commonwealth v.
Munday, 78 A.3d 661, 666 (Pa. Super. 2013) (stating that Alleyne
established “that when a mandatory minimum sentence is under
consideration based upon judicial factfinding of a ‘sentencing factor,’ that
‘sentencing factor’ is, in reality, ‘an element of a distinct and aggravated
crime’ and, thus, requires it be proven beyond a reasonable doubt.”
(quoting Alleyne, 133 S.Ct. at 2163).
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Alleyne. Post-sentence Motion, 4/23/13, at ¶¶ 9-11. Moreover, Appellant
raised the issue in his Pa.R.A.P. 1925(b) statement and cited the decision in
Alleyne as support for his appeal. Pa.R.A.P. 1925(b) Statement, 10/28/13,
at ¶ 5. Thus, this issue was properly preserved on appeal.3
The constitutionality of a statute is a pure question of law. Robinson
Tp., Washington County v. Commonwealth of Pennsylvania, 83 A.3d
901, 943 (2013). Thus, our standard of review is de novo and our scope of
review is plenary. Id.Appellant is challenging the constitutionality of 18 Pa.C.S. § 6317 in its
entirety. As noted above, the United States Supreme Court’s decision in
Alleyne rendered unconstitutional those portions of Pennsylvania’s
mandatory minimum sentencing statutes that allow a judge to increase a
defendant’s sentence based on a preponderance of the evidence standard as
opposed to utilizing the beyond a reasonable doubt standard. Thus, Alleyne
rendered 18 Pa.C.S. § 6317(b) unconstitutional.4 Here, Appellant argues
that, 18 Pa.C.S. § 6317(b) cannot be severed from the balance of the
statute, and therefore, the unconstitutionality of Section 6317(b) results in
the entire statute being unconstitutional.
3
While Appellant was sentenced prior to the filing of the decision in Alleyne,
this Court has applied the holding in Alleyne to cases pending on appeal at
the time Alleyne was decided. Commonwealth v. Watley, 81 A.3d 108,
116-118 (Pa. Super. 2013).
4
The constitutional infirmity of 18 Pa.C.S. § 6317(b), and other sentencing
statutes, was noted, albeit in dicta, in this Court’s decision in Watley.
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With regard to severability, the rules of statutory construction provide
as follows:
1925. Constitutional construction of statutes
The provisions of every statute shall be severable. If any
provision of any statute or the application thereof to any person
or circumstance is held invalid, the remainder of the statute, and
the application of such provision to other persons or
circumstances, shall not be affected thereby, unless the court
finds that the valid provisions of the statute are so essentially
and inseparably connected with, and so depend upon, the void
provision or application, that it cannot be presumed the General
Assembly would have enacted the remaining valid provisions
without the void one; or unless the court finds that the
remaining valid provisions, standing alone, are incomplete and
are incapable of being executed in accordance with the
legislative intent.
1 Pa.C.S. § 1925.
The statute at issue, the drug-free school zone provision of the
Pennsylvania Crimes Code, provides as follows:
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), 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
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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.
If the sentencing court finds that the delivery or possession with
intent to deliver was to an individual under 18 years of age, then
this section shall not be applicable and the offense shall be
subject to section 6314 (relating to sentencing and penalties for
trafficking drugs to minors).
(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.
(c) Authority of court in sentencing.--There shall be no
authority for a court to impose on a defendant to which this
section is applicable a lesser sentence than provided for in
subsection (a), to place the defendant on probation or to
suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than that
provided in this section. Sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing shall not supersede
the mandatory sentences provided in this section. Disposition
under section 17 or 18 of The Controlled Substance, Drug,
Device and Cosmetic Act shall not be available to a defendant to
which this section applies.
(d) Appeal by Commonwealth.--If a sentencing court refuses
to apply this section where applicable, the Commonwealth shall
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have the right to appellate review of the action of the sentencing
court. The appellate court shall vacate the sentence and remand
the case to the sentencing court for imposition of a sentence in
accordance with this section if it finds that the sentence was
imposed in violation of this section.
18 Pa.C.S. § 6317.
Initially, we point out 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.
Additionally, we conclude that 18 Pa.C.S. § 6317(b) cannot be severed
from the rest of the statute because there would be no enforcement
mechanism. In addressing a similar issue regarding Alleyne and 42 Pa.C.S.
§ 9712.1,5 this Court explained as follows:
We find that Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected. Following Alleyne,
Subsection (a) must be regarded as the elements of the
aggravated crime of possessing a firearm while trafficking drugs.
If Subsection (a) is the predicate arm of Section 9712.1, 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.
Commonwealth v. Newman, 99 A.3d 86, 101 (Pa. Super. 2014). In the
case at bar, after reviewing the language in 18 Pa.C.S. § 6317 pursuant to
our rules of statutory construction, it is apparent that Section 6317(a) is the
5
42 Pa.C.S.A. § 9712.1 set forth the mandatory minimum sentences for
crimes involving controlled substances pursuant to 35 P.S. § 780-113(a)(3).
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predicate arm and Section 6317(b) is the enforcement arm. Without
6317(b) there is no mechanism in place to determine whether the predicate
enumerated in Section 6317(a) has been met.6
As noted above, the United States Supreme Court’s decision in
Alleyne rendered Section 6317(b) unconstitutional. In the instant case,
after careful review and pursuant to the rules of statutory construction set
forth in 1 Pa.C.S. § 1925, we conclude that the remainder of 18 Pa.C.S. §
6317 is inseparably connected with and dependent upon the unconstitutional
provision in Section 6317(b). It cannot be presumed the General Assembly
would have enacted the remaining provisions without Section 6317(b), and
the remaining provisions, standing alone, are incomplete and are incapable
of being executed in accordance with the legislative intent. Therefore, we
are constrained to hold that 18 Pa.C.S. § 6317 is unconstitutional.
For the reasons set forth above, we affirm Appellant’s convictions.
However, because we hold that 18 Pa.C.S. § 6317 is unconstitutional, we
vacate the judgment of sentence and remand for resentencing.
6
Indeed, the Commonwealth concedes that subsection (c) of 42 Pa.C.S. §
9712.1 is “virtually identical” to 18 Pa.C.S. § 6317(b). See Commonwealth’s
Brief at 11 n.5 (referencing our decision in Watley, 81 A.3d at 117 n.4).
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Convictions affirmed. Judgment of sentence vacated due to the
unconstitutionality of 18 Pa.C.S. § 6317. Case remanded for resentencing.
P.J.E. Ford Elliott joins this Opinion.
Judge Bowes files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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