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 April 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011725-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.
CONCURRING OPINION BY BOWES, J.: FILED DECEMBER 02, 2014
In light of this Court’s decisions in Commonwealth v. Newman, 99
A.3d 86 (Pa.Super. 2014) (en banc), and Commonwealth v. Valentine,
2014 PA Super 220, I am constrained to concur with the learned majority’s
severability analysis. I write further to express my disagreement with
aspects of those decisions, especially in light of those Courts’ discussions of
Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc), a
decision I authored.1 In my view, those provisions of Pennsylvania
____________________________________________
1
In this respect, I note that I am also in disagreement with the discussion
of my learned colleague Judge Mundy in her concurring and dissenting
opinion in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc), regarding Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.
2013) (en banc), and its implications on severability. In Watley, we found
the sentence therein legal since the jury determined the facts subjecting
(Footnote Continued Next Page)
J-S38045-14
mandatory minimum statutes affected by Alleyne v. United States, 133
S.Ct. 2151 (2013), are severable.2
In Newman, this Court found, in pertinent part, that 42 Pa.C.S.
§ 9712.1(c), governing a burden of proof and declaring that possession of a
firearm was not an element of the underlying crime, was not severable from
the remainder of § 9712.1. The en banc Court, in an opinion authored by
my esteemed colleague on this panel, the learned President Judge Emeritus
Ford Elliott, found that subsection (a) of § 9712.1 was essentially and
_______________________
(Footnote Continued)
Watley to his increased sentence beyond a reasonable doubt. We did not
discuss or reach the non-raised question of the unconstitutionality of the
statute as a whole. Thus, I agree with my learned colleague President Judge
Emeritus Ford Elliott’s characterization of Watley in footnote 9 of her
opinion in Newman to the limited extent that Watley did not address
severability. Nevertheless, my sentiments on the ultimate question of
severability are closer in line to those of Judge Mundy, and I believe Watley
supports the idea that the mandatory statutes are not unconstitutional as a
whole.
2
I am cognizant that our Supreme Court is currently considering the
severability issue. See Commonwealth v. Newman, 99 A.3d 86(Pa.Super. 2014) (en banc) (collecting cases). Further, I am aware that the
High Court is considering whether Alleyne v. United States, 133 S.Ct.
2151 (2013), implicates this Commonwealth’s illegal sentencing doctrine.
Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). Unlike Newman
and Commonwealth v. Valentine, 2014 PA Super 220, Appellant properly
preserved his challenge to his mandatory minimum sentence at the trial
level, anticipating the decision in Alleyne. Thus, there are no issue-
preservation questions as in Newman and Valentine. Since Appellant
properly preserved his Alleyne issue, a decision determining that certain
Alleyne issues do not pertain to the legality of a sentence will have no effect
on this case. Hence, this case presents a pure vehicle for the determination
of whether 18 Pa.C.S. § 6317(b) is severable from the remainder of the
statute following Alleyne.
-2-
J-S38045-14
inseparably connected to subsection (c). The Newman Court reasoned that
submitting to the jury the question of whether the firearm was possessed in
close proximity to the drugs therein would constitute impermissible
legislating by the Court and result in the court impermissibly rewriting the
mandatory statute.
Although I concede reasonable minds may disagree as to the issue, I
am unpersuaded that the burden of proof aspects of the mandatory
minimum statutes affected by Alleyne are not severable. It is long-standing
law in this Commonwealth that, merely because a portion of a statute is
unconstitutional, the entire statute is not ipso facto unconstitutional. See
Rothermel v. Meyerle, 20 A. 583 (Pa. 1890). In Rothermel, our High
Court opined,
A statute may be void only so far as its provisions are repugnant
to the constitution: one provision may be void, and this will not
affect other provisions of the statute. If the part which is
unconstitutional in its operation, is independent of, and readily
separable from that which is constitutional, so that the latter
may stand by itself, as the reasonable and proper expression of
the legislative will, it may be sustained as such; but, if the part
which is void is vital to the whole, or the other provisions are so
dependent upon it, and so connected with it, that it may be
presumed the legislature would not have passed one without the
other, the whole statute is void: Gibbons v. Ogden, 9 Wheat.
203; City of New York v. Miln, 11 Pet. 102; Packet Co. v.
Keokuk, 95 U.S. 80; Tiernan v. Rinker, 102 U.S. 123;
Presser v. Illinois, 116 U.S. 252; Lea v. Bumm, 83 Pa. 237;
In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413.
The constitutional and the unconstitutional provisions may even
be contained in the same section of the law, and yet be perfectly
distinct and separable, so that the former may stand though the
latter fall: the question is, whether the several provisions are
essentially and inseparably connected in substance:
-3-
J-S38045-14
Hagerstown v. Dechert, 32 Md. 369; 3 Amer. & Eng. Encyc.
of Law, 677, and cases there cited.
Rothermel, supra at 587-588. These principles hold true even where the
statute in question does not contain a severability provision. Rieck-
McKunkin Dairy Co. v. Milk Control Com., 18 A.2d 868 (Pa. 1941). Our
legislature codified this expression of American common law in 1 Pa.C.S.
§ 1925. That statute provides:
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
incapable of being executed in accordance with the legislative
intent.
1 Pa.C.S. § 1925; see also Stilp v. Commonwealth, 905 A.2d 918, 970-
971 (Pa. 2006) (discussing briefly the history of the severability doctrine).
Thus, there is a presumption that Pennsylvania legislation is severable.
“Severance is precluded only where, after the void provisions are excised,
the remainder of the statute is incapable of execution in accordance with
legislative intent.” Commonwealth v. Williams, 832 A.2d 962, 986 (Pa.
2003). Importantly, “Section 1925 funnels our inquiry to examining what
the enacting legislature would have done had it known that the [provision in
-4-
J-S38045-14
question] was unconstitutional.” Annenberg v. Commonwealth, 757 A.2d
338, 347 (Pa. 2000).
As our Supreme Court set forth in Stilp, "The test of severability may
be stated in simple terms as follows: After the invalid portion of the act has
been stricken out, whether that which remains is self-sustaining and is
capable of separate enforcement without regard to that portion of the
statute which has been cast aside. If this be true the statute should be
sustained to the extent of that which remains." Stilp, supra at 972 n.38
(quoting Rutenberg v. City of Philadelphia, 196 A. 73, 79 (Pa. 1938)).
Following Alleyne, 18 Pa.C.S. § 6317(b) is unquestionably
unconstitutional. That aspect of the statute reads:
(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.
18 Pa.C.S. § 6317(b).
If that section were excised, the statute would read:
(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), [FN1] 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
-5-
J-S38045-14
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. 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).
...
(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
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.
-6-
J-S38045-14
18 Pa.C.S. § 6317.
Reading the statute without the burden of proof provision does not, in
my view, render it wholly incapable of enforcement. The statute remains
both coherent and self-sustaining when read in conjunction with the
constitutional jury requirements articulated in Alleyne. For example, in
Watley, it was clear that the jury determined beyond a reasonable doubt
the facts necessary to impose the mandatory sentence. Hence, no jury trial
right issues were involved, nor was the sentence unconstitutionally
increased. Similarly, in Commonwealth v. Matteson, 96 A.3d 1064(Pa.Super. 2014), the jury verdict included the facts needed to impose the
mandatory minimum sentence. Today, the legislature could readily reenact
mandatory minimum statutes absent the burden of proof provisions and
without specifying a new burden of proof procedure and there would be no
constitutional impediment to their enforcement.
Respectfully, the Newman Court asked the wrong question in
conducting its severability analysis. Specifically, it looked to whether the
General Assembly intended to have a jury decide the sentencing factors that
triggered the mandatory sentence. See id. at 102 (“the legislature also
intended those penalties to be imposed according to a very specific
procedure—the issue of firearm possession must be decided by the judge, at
sentencing, by a preponderance of the evidence.”). The proper query,
however, is what the legislature would have done had it known that a judge
could not decide such facts by a preponderance of the evidence standard.
-7-
J-S38045-14
See Annenberg, supra at 347; see also United States v. Booker, 543
U.S. 220, 246 (2005).
I simply cannot agree that the legislature would not have enacted a
statute to mandatorily increase punishment based on the sale of drugs in a
school zone solely because a judge could not determine the facts by a
preponderance standard. Had the legislature known this burden of proof
was unconstitutional, it is more likely that it would have substituted the
constitutional standard in its place. The overriding concern of the legislature
was to increase punishment for offenses committed in school zones and
decrease judicial sentencing discretion. The mandatory minimum statute did
not exist for the sole purpose of allowing judges to determine facts by a
preponderance standard. Where the purpose of a statute is “to accomplish
several distinct objects, and these can be severed, so that one may fall and
the others stand, only the part which infringes the constitution will be
declared invalid[.]” Thomas Raeburn White, Commentaries on the
Constitution of Pennsylvania, at 29 (1907) (collecting cases).
Therefore, I believe the procedure adopted by the trial court in
Valentine, which was ultimately rejected by this Court based on Newman,
was entirely proper. Submitting to the jury the facts essential to invoke the
mandatory is consistent with federal practice following the earlier Apprendi
v. New Jersey, 530 U.S. 466 (2000) decision, and provides an easy and
manageable constitutional method to follow. Further, I strongly disagree
that such procedures result in courts re-writing the mandatory statute. I
-8-
J-S38045-14
acknowledge that “a court is empowered merely to strike existing language;
the judiciary is given no authority to draft its own language and insert it into
the statute or ordinance.” Pap's A.M. v. City of Erie, 719 A.2d 273,
281 (Pa. 1998), reversed on other grounds sub nom. City of Erie v. Pap's
A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). However, to
the extent that Newman and the trial court opinions upon which it relied
assert that such a procedure violates the separation of powers, I believe
they have misconstrued that doctrine.
The separation of powers doctrine provides that “the executive,
the legislature and the judiciary are independent, co-equal
branches of government.” Beckert v. Warren, 497 Pa. 137,
439 A.2d 638, 642 (Pa. 1981). The dividing lines among the
three branches “are sometimes indistinct and are probably
incapable of any precise definition.” Stander v. Kelly, 433 Pa.
406, 250 A.2d 474, 482 (Pa. 1969) (plurality). “Under the
principle of separation of the powers of government, . . . no
branch should exercise the functions exclusively committed to
another branch.” Sweeney v. Tucker, 473 Pa. 493, 375 A.2d
698, 706 (Pa. 1977).
Commonwealth v. Melvin, 2014 PA Super 181, *5.
It has been written that “[w]hen the legislative and executive powers
are united in the same person, or in the same body of magistrates, there
can be no liberty[.]” John Adams, A Defence of the Constitutions of
Government of the United States of America, Vol. I, at 153 (3rd Ed.
Philadelphia, 1797). Writing further, Adams eloquently set forth, “Again,
there is no liberty, if the power of judging be not separated from the
legislative and executive powers: were it joined with the legislative, the life
-9-
J-S38045-14
and liberty of the citizens would be exposed to arbitrary control[.]” Id. at
154.
However, the act of following Alleyne by requiring a jury to determine
the facts necessary to trigger a statutory mandatory sentence in no way is a
legislative act by either prosecutors or the courts. Instead, we are excising
the burden of proof section and enforcing the constitutional pronouncement
of Alleyne. This is not legislating, but enforcing constitutional rights based
on existing binding precedent. Indeed, this procedure bears a strong
resemblance to our procedure pertaining to certain other criminal offenses.
For example, our theft statutes do not discuss a burden of proof, but the
amount of money stolen aggravates the crime. The jury must therefore
determine the amount taken in rendering its verdict. We do not require the
statute to delineate that the jury must unanimously determine these facts
beyond a reasonable doubt. This is merely presumed based on
constitutional law. Admittedly, in these situations the elements are included
in the underlying offense, but, as the United States Supreme Court has
repeatedly opined, it matters not what label a fact is given, whether it be an
element or sentencing factor. See Apprendi, supra; Booker, supra at
242; Alleyne, supra.To engraft on a statute a beyond a reasonable doubt burden of proof
based on a United States Supreme Court decision is no more legislating than
requiring the Commonwealth to prove the age of a victim or the amount of
- 10 -
J-S38045-14
money stolen beyond a reasonable doubt. The proper question, as
mentioned earlier, is: had the legislature known when it passed the
mandatory sentencing provision that the burden of proof provision was void,
how would it have exercised its power to define sentencing practices? Cf.
Annenberg, supra at 347 (rejecting contention that Supreme Court’s
severing of a statute would violate the separation of powers by arrogating to
itself the power to tax and stating, “When this Court severs a void provision
from a statute, it is doing so to attempt to effectuate legislative intent. We
are therefore not arrogating to ourselves the power to tax but rather are
attempting to determine how the legislature would have exercised its taxing
power had it known, in 1889, that the exclusion was void.”).
Pointedly, certain Pennsylvania mandatory statutes, as applied, are
unaffected by Alleyne despite their burden of proof provisions running afoul
of that decision. For example, 42 Pa.C.S. § 9718 applies mandatory
sentences based on the youth of the victim. In certain instances, however,
the age of the victim is already included as an element of the crime,
specifically with regard to various sex offenses. In those situations, there
should be no impediment to sentencing the defendant under the mandatory
sentence. See Matteson, supra.Further, I add that 42 Pa.C.S. § 9717, a mandatory minimum statute,
which applies to crimes committed against the elderly, includes no burden of
proof provision. Relying on the no longer constitutionally-sound decision in
- 11 -
J-S38045-14
McMillan v. Pennsylvania, 477 U.S. 79 (1986), this Court applied a
preponderance of the evidence standard at sentencing. Commonwealth v.
Rizzo, 523 A.2d 809 (Pa.Super. 1987). Based on the decision in Alleyne,
that holding is invalid and the Alleyne decision provides the proper mode
for imposing that mandatory minimum sentence. As the Commonwealth
astutely observes, the entire Crimes Code is devoid of providing a burden of
proof for any element of a crime. Rather, no such burden of proof is
required to be delineated based on well-ensconced constitutional principles.
Consistent with Judge Mundy’s view in her concurring opinion in Newman, I
believe that “pre-existing procedures and Alleyne specify that the burden of
proof shall be beyond a reasonable doubt and it shall be submitted to the
jury.” Newman, supra at 106 (Mundy, J., concurring).
In this respect, the trial court opinions relied on by the Newman
Court are similarly unpersuasive and misplaced precisely because the default
method of resolving disputed questions of fact is for the jury, even absent a
legislative directive. Frankly, the United States Supreme Court has judicially
directed the manner in which mandatory minimum sentences are to be
decided: via a jury determination of the facts included in those mandatory
sentences.
Our United States Supreme Court’s decision in Booker is illustrative.
Booker involved an Apprendi challenge to the federal sentencing guidelines
and resulted in two separate majority opinions. The first majority opinion
- 12 -
J-S38045-14
declared that the then-mandatory federal sentencing guidelines were
unconstitutional to the extent they permitted a judge to increase a
defendant’s maximum sentence based on facts the court decided by a
preponderance of the evidence. The second majority opinion (hereinafter
the “remedial opinion”) concluded that the proper remedy was not to strike
the guidelines in their entirety, but to sever those provisions that made the
guidelines mandatory.
Therein, Booker was charged with possession with intent to distribute
fifty grams of crack cocaine. The jury heard evidence that he had 92.5
grams of crack cocaine when arrested. At sentencing, however, the judge
determined that Booker possessed an additional 566 grams of crack cocaine.
This finding resulted in an almost ten-year increase in the sentence Booker
would have received under the guidelines based solely on the jury verdict.
Consistent with its earlier Apprendi and Blakely v. Washington, 542 U.S.
296 (2004) decisions, the United States Supreme Court concluded that
Booker’s jury trial rights were infringed and that “any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, supra at 244.
In doing so, the Court rejected the government’s position that
requiring a jury to determine the sentencing factors beyond a reasonable
- 13 -
J-S38045-14
doubt would violate the separation of powers doctrine by unconstitutionally
granting the Federal Sentencing Commission, which promulgated the
guidelines, the legislative power to define criminal elements. The Court
maintained that the argument was without merit because “the impact of
such facts on federal sentences is precisely the same whether one labels
such facts ‘sentencing factors’ or ‘elements’ of crimes.” Id. at 242.3
The remedial opinion in Booker severed the provisions of the Act in
question that made it mandatory. The remedial justices maintained that the
Act, as written, with jury fact-finding added, was preferable to total
invalidation of the statute, but that the legislature would have preferred its
proffered remedy. In creating its remedy, the remedial majority opined,
“We seek to determine what ‘Congress would have intended’ in light of the
Court’s constitutional holding.” Id. at 246. This statement is wholly
consistent with the Pennsylvania Supreme Court’s approach in Annenberg,
supra, and with long-standing severability jurisprudence.
The remedial Booker opinion opined that requiring juries to determine
the facts necessary to impose the increased guideline sentences “would
create a system far more complex than Congress could have intended.” Id.
____________________________________________
3
In the case at bar, we have no similar separation of powers concern
because the legislature passed the mandatory minimum statute in question.
Describing the facts necessary in those statutes as sentencing factors or
elements of an aggravated crime does not impact the state sentences that
could be imposed.
- 14 -
J-S38045-14
at 254. Accordingly, it chose to make the mandatory guidelines advisory
only. The dissenting opinions from that remedial opinion, however, cogently
recognized that the remedial majority was not excising unconstitutional
provisions of the law in question.
With this in mind, I could share the sentiments of the Newman Court
and the trial court opinions it discussed with respect to courts acting in a
legislative function, had we declared that the mandatory minimum statutes
would no longer be mandatory. However, that is not what I propose, nor
what the Commonwealth sought here or in our earlier decisions. I add that
submitting to the jury those facts included in the current mandatory
sentencing statutes affected by Alleyne is not complex, nor does it create a
unwieldy system that our General Assembly would not have enacted had it
known the burden of proof provision was unconstitutional.
As in the federal system, the vast majority of criminal proceedings are
the result of plea bargains. Where a defendant admits to the facts needed
to trigger a mandatory sentence, there are no constitutional problems. As
Justice Stevens pointed out in his dissent to the remedial Booker opinion, in
the event that a trial occurs, “prosecutors could avoid an Apprendi . . .
problem simply by alleging in the indictment the facts necessary to reach the
chosen Guidelines sentence.” Booker, supra at 277 (Stevens, J.,
dissenting). Instantly, absent the holdings in Newman and Valentine,
prosecutors could avoid Alleyne issues by including in the criminal
- 15 -
J-S38045-14
information the facts required to reach the mandatory sentence at issue. In
this regard, Justice Stevens noted at that time that the Department of
Justice was advising federal prosecutors to charge and prove facts that
increased statutory maximums for drug types and quantities. He accurately
recognized that “[e]nhancing the specificity of indictments would be a simple
matter[.]” Id. In Pennsylvania, the same result could be achieved by
prosecutors and judges following the procedure that occurred and was
reversed in Valentine, that is, including the facts in the criminal information
and submitting the question to the jury.
Rather than engage in a wholesale striking down of our mandatory
sentencing statutes, I would allow prosecutors to prove any fact required to
subject the defendant to a mandatory sentence to the jury beyond a
reasonable doubt. In the event that the defendant elects to proceed non-
jury, as occurred here, the trial judge would be charged with finding the
essential facts beyond a reasonable doubt. Furthermore, where the fact-
finder’s findings already encompass the necessary facts needed to subject a
defendant to a mandatory minimum sentence, or the facts have been
stipulated too, I would find any non-compliance with Alleyne to be
harmless. See Watley, supra; Matteson, supra; United States v.
Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United
States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation
- 16 -
J-S38045-14
harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same);
United States v. Mack, 729 F.3d 594, (6th Cir. 2013) (same).
Since I believe the Newman Court and the trial court opinions it
discussed misperceived the legislative intent analysis pertaining to the
severability doctrine and did not consider what the legislature would have
intended had it known that the burden of proof provisions of its mandatory
statutes were unconstitutional, I cannot join the majority in full. Absent the
decisions in Newman and Valentine, I would find that because the
evidence in this case that the drug sale occurred within one thousand feet of
a school was uncontradicted, the Alleyne error was harmless. However,
because Newman is binding on this panel, as is Valentine, I am
constrained to concur in the result.
- 17 -