Com. v. Bailey, F.

J-S46030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK BAILEY
Appellant No. 2225 MDA 2013
Appeal from the Judgment of Sentence October 11, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003342-2012
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 26, 2014
Frank Bailey appeals from his judgment of sentence, entered in the
Court of Common Pleas of Lancaster County, after being found guilty by a
jury of delivery of cocaine.1 Bailey was sentenced to a 2-4 year2 mandatory
minimum sentence, based upon the Drug-Free School Zone statute, 18
Pa.C.S. § 6317. After careful review, we vacate and remand for
resentencing.
confidential informant (CI) on the evening of December 6, 2011. The CI had
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1
35 P.S. § 780-113(a)(30).
2
-range for his offense (based
upon an offense gravity score of 6 and a prior record score of 3) under the
Sentencing Guidelines.
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been working with members of the Selective Enforcement Unit (SEU) of the
3
- Instantly,
the police provided $40 in buy money to the CI, who placed a phone call to
cocaine. A few minutes after the CI confirmed the meeting with JuJu, a
green Dodge Caravan entered the prearranged buy area where the CI
approached the vehicle as a police officer stood on the sidewalk
approximately 25 feet away from the minivan to clearly observe the
door, walk to the rear of the vehicle and engage in a hand-to-hand
transaction with the CI.
Soon after the controlled buy, another officer, in full uniform and
driving a marked police cruiser, stopped the green minivan in a nearby
Turkey Hill Convenience Store parking lot, spoke to the driver and identified
the passenger of the van as Bailey. Bailey, who was positively identified by
the police officer who observed the transaction, was charged with one count
of delivery of a controlled substance. Included in the criminal complaint, bill
of information and affidavit of probable cause was the allegation that the
crime occurred within a school zone.
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3
- -level drug
dealer, after which an unrecognized dealer would be stopped by the police in
a marked car and asked for identification.
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After the first day of a two-day trial, the parties stipulated on the
record, but outside of the presence of the jury, that the drug delivery
occurred within 1,000 feet of a school. N.T. Jury Trial, 8/15/13, at 76-77.4
At the close of the second day of trial, the Commonwealth called Officer
Robert Whiteford as a witness. Officer Whiteford was the secondary
surveillance officer on duty at the time of the controlled buy involving Bailey.
assisting in the operation of the buy-walk detail. Officer Whiteford, sitting in
his car approximately 25 feet from the minivan during the delivery, was in
radio contact with the undercover officer standing across from the
intersection where the controlled buy occurred. Officer Whiteford, referring
to a map entered at trial as an exhibit, testified that the controlled buy
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4
In his opening statement to the jury, the assistant district attorney stated:
Now, the elements of this crime are that the Commonwealth
must prove that the defendant, Frank Bailey, delivered which
handling of something to another individual a controlled
substance, in this case the controlled substance is cocaine, and
that he did this within a school zone.
going to hear
elements are.
N.T. Jury Trial, 8/15/13, at 30 (emphasis added).
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involving Bailey occurred within a school zone. N.T. Jury Trial, 8/16/13, at
118.
At the close of trial, the jury found Bailey guilty of delivery of cocaine;5
the jury verdict, however, made no finding regarding whether the drugs
were delivered in a school zone. Verdict, 8/15/13. On October 11, 2013,
sentencing was held in the case; however, because Bailey did not appear at
the hearing, sentencing was conducted in absentia.6 Prior to imposing
sentence, defense counsel objected to application of the two-year mandatory
minimum under section 6317, arguing that it was improperly applied by the
court because the jury had made no finding as to whether the offense
occurred in a school zone. The trial court imposed a 2 to 4 year sentence of
imprisonment based upon the mandatory minimum sentence under section
6317 and the guidelines, imposing a six-month aggravating factor.7 Bailey
filed unsuccessful post-sentence motions. This timely appeal followed.
On appeal, Bailey presents the following two issues for our
consideration:
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5
The cocaine delivered weighed approximately .12 grams.
6
Defense counsel acknowledged that notice of sentencing was sent to
7
See
based on two things: Number one, the mandatory minimum. . . . But
also, the guidelines. I consider this to be an aggravated offense because
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(1) Did the trial court illegally sentence Mr. Bailey to a
to 18 Pa.C.S. § 6317, where the jury did not make a
specific finding that Mr. Bailey committed the offense in a
school zone, as require by Alleyne v. United States, 133
S.Ct. 2151 (2013)?
(2) Did the trial court abuse its discretion by imposing a
sentence at the top of the aggravated range of the
sentencing guidelines, without legitimate basis?
Pursuant to 18 Pa.C.S. § 6317 (Drug-free school zones):
§ 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
the contrary.
18 Pa.C.S. § 6317(a) (emphasis added). A trial court has no authority to
impose upon a defendant a lesser sentence than that provided in section
6317(a). Id. §6317(c).
Id. § 6317(b). Rather, the Commonwealth must give a defendant
reasonable notice, after conviction and before sentencing, of its intention to
proceed under section 6317. Id. The court shall determine, by a
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preponderance of the evidence at sentencing, whether section 6317 applies
based upon evidence presented at trial and shall afford the Commonwealth
and the defendant an opportunity to present necessary additional evidence.
Id.
recent decision, Alleyne v. United States, 133 S.Ct. 2151 (2014), the
issue of whether Bailey delivered drugs within 1,000 feet of a school zone is
an element of the underlying offense that must be proven, beyond a
reasonable doubt, by the factfinder. In Alleyne, a case concerning the
application of a federal mandatory minimum statute, the Supreme Court
held that any fact that triggers an increase in the mandatory minimum
sentence for a crime is necessarily an element of the offense. Id. at 2163-
64. The Supreme Court reasoned that "the core crime and the fact
triggering the mandatory minimum sentence together constitute a new,
aggravated crime" and consequently that the Sixth Amendment requires
that every element of the crime, including any fact that triggers the
mandatory minimum, must be alleged in the charging document, submitted
to a jury, and found beyond a reasonable doubt. Id. at 2160-64.
In Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), our
Court recently discussed the application of Alleyne
mandatory minimum statutes:
This term, in Alleyne, the United States Supreme Court
expressly overruled Harris, holding that any fact that increases
the mandatory minimum sentence for a crime "is 'an element'
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that must be submitted to the jury and found beyond a
reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The
Alleyne majority reasoned that "[w]hile Harris limited Apprendi
to facts increasing the statutory maximum, the principle applied
in Apprendi applies with equal force to facts increasing the
mandatory minimum." Alleyne, 133 S.Ct. at 2160. This is
because "[i]t is impossible to dissociate the floor of a sentencing
range from the penalty affixed to the crime[,]" and "it is
impossible to dispute that facts increasing the legally prescribed
floor aggravate the punishment." Id. at 2161. Thus, "[t]his
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." Id.Id. at 665. In Munday, the Court held that even where a statute
ctor at issue still had to be determined by the
factfinder, beyond a reasonable doubt. Id. at 666. Thus, the Court found
sentence under section 9712.1 (sentences for certain drug offenses
committed with firearms), violated the Due Process Clause of the Fourteenth
Amendment and the jury trial guarantee of the Sixth Amendment. As a
remanded for resentencing. Id. at 667.
The principles announced in Alleyne, as interpreted by our Court in
Munday, are equally applicable to the instant issue of whether evidence that
the delivery of drugs occurred within 1,000 feet of a school zone must go
before a factfinder, and be found beyond a reasonable doubt, before the
mandatory minimum sentence under section 6317 can be applied to a
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sections 6317(c) (Drug-free school zones) and 9712.1(c) (sentences for
drug offenses committed with firearms in Munday) is identical. However,
unlike the facts in Munday, here the parties stipulated at trial that the drug
delivery occurred within 1,000 feet of a school. Specifically, the following
exchange took place on the record, after the jury retired:
The Court: All right. Are we going to have a stipulation on
the school zone or is there going to be testimony and I
need to have that part of the verdict slip?
Assistant Public Defender:
within 1,000 feet of a school.
The Court: If it occurred, it occurred within a thousand feet.
Assistant Public Defender:
agreeing this happened, though, within 250 feet of a primary or
secondary school, which would invoke any enhanced guidelines,
though. I probably would refer to whether the school zone
mandatory
Assistant District Attorney: I would have no problem with the
verdict slip just saying within a thousand feet.
N.T. Jury Trial, 8/15/13, at 76 (emphasis added).
research and now believed that the issue of whether the drug delivery
occurred within 1,000 feet of a school was something that needed to be
submitted to a jury pursuant to Alleyne. N.T. Sentencing, 10/11/13, at 5.
Specifically, counsel claimed that his client never waived the right for the
jury to consider whether the drug delivery occurred within the proscribed
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distance from a school under section 6317, that the issue goes to the
-waivable. We are constrained
to agree.
A mandatory minimum sentencing claim that invokes the reasoning of
Alleyne implicates the legality of the sentence. Munday, 78 A.3d at 664;
Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en
banc). "A challenge to the legality of the sentence may be raised as a
matter of right, is non-waivable, and may be entertained so long as the
See Commonwealth v. Foster, 960 A.2d
160 (Pa. Super. 2008), , 17 A.3d 332 (Pa. 2011). Here, even the
Commonwealth concedes that the school zone mandatory minimum is not
applicable because the jury did not specifically find that Bailey had
Compare Commonwealth v. Matteson, 2014 PA Super 149 (Pa. Super.
imposition of mandatory minimum on conviction for aggravated indecent
assault of child less than 13 years of age did not violate Sixth Amendment
under Alleyne); Watley, 81 A.3d 108 (Pa. Super. 2013) (where jury found
defendant possessed firearms based on other convictions related to same
incident, factual predicates for determining mandatory minimum under
section 9712.1 (drug offenses committed with firearms) were proven to jury
beyond reasonable doubt; sentence was not illegal under Alleyne). Despite
the fact that the assistant district attorney stated to the jury in his closing
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N.T. Jury Trial, 8/16/13, at 143, he also indicated that there was an
agreement by the parties on this issue, and the jury was never asked to
determine that issue when rendering its verdict on the underlying drug
offense. Neither the parties, by way of stipulation, nor the trial judge, could
take this issue away from the jury, as the finder of fact, under the dictates
of Alleyne.
controlled substance occurred within 1,000 feet of the real property on which
Munday,
78 A.3d at 666, the imposition of the mandatory sentencing provision of
section 6317 violated the rule in Apprendi as interpreted by Alleyne.
ocess
Clause of the Fourteenth Amendment and the jury trial guarantee of the
Sixth Amendment, and must be vacated. Munday, supra.the mandatory minimum sentence under section 6317, the sentencing
scheme has been upset. Accordingly, we must remand the case to the trial
court for resentencing.8
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8
We instruct the trial court, upon remand, that it is not to consider section
(Footnote Continued Next Page)
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Judgment of sentence vacated.9 Case remanded for resentencing,10 in
accordance with the dictates of this decision. Jurisdiction relinquished.
SHOGAN, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
_______________________
(Footnote Continued)
with pre-Alleyne procedure when the Commonwealth failed to present
sufficient 6317 evidence before the trial judge at sentencing and was
permitted to put new evidence before the re-sentencing court. Compare
Commonwealth v. Wilson, 934 A.2d 1191 (Pa. 2007) (pre-Alleyne,
Commonwealth permitted to present sentence enhancement evidence at
sentencing hearing on remand after original sentence vacated due to
insufficient evidence supporting application of enhancement; no double
jeopardy concerns implicated and vacation of original sentence allows court
to treat case anew for evidentiary purposes). We do note, however, that
upon resentencing a court may look to other factors not previously
enumerated since the trial court will be free to impose an entirely new
sentence.
9
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113(a)(30), however, shall remain undisturbed.
10
Having determined that the sentencing scheme is upset and we must
remand the case to the trial court for resentencing, see Commonwealth v.
Sutton
regarding the discretionary aspect of his sentence moot.
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