Commonwealth, Aplt. v. Wolfe, M. , 636 Pa. 37 ( 2016 )

[J-24-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 68 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1962 MDA 2013 dated
v. : 12/24/14 vacating and remanding the
: judgment of sentence of the Lancaster
: County Court of Common Pleas,
MATTHEW BRYAN WOLFE, : Criminal Division, at No. CP-36-CR-
: 5791-2012 dated 10/1/13
Appellee :
:
: ARGUED: November 18, 2015
: RESUBMITTED: January 20, 2016
Chief Justice Saylor delivered the Opinion of the Court with
respect to Parts I and II(B), joined by Justices Baer,
Donohue and Wecht. Chief Justice Saylor also authored
Part II(A), which is joined by Justice Donohue. Justice Baer
files a concurring opinion pertaining to Part II(A), joined by
Justice Wecht. Justice Todd files a dissenting opinion,
joined by Justice Dougherty, and Justice Dougherty files a
separate dissenting opinion.
OPINION
CHIEF JUSTICE SAYLOR1 DECIDED: June 20, 2016
1
This matter was reassigned to this author.
Appeal was allowed to assess the validity of the Superior Court’s sua sponte
determination that a sentencing statute is facially unconstitutional under Alleyne v.
United States, ___ U.S. ___, 133 S. Ct. 2151 (2013).
I. Background
In August 2012, Appellee, an eighteen-year-old male, engaged in sexual
intercourse with a thirteen-year-old girl on several occasions. He was charged with and
convicted in a jury trial of a number of sexual offenses, including two counts of
involuntary deviate sexual intercourse under Section 3123(a)(7) of the Crimes Code, 18
Pa.C.S. §3123(a)(7). This statute prescribes, as a general rule, that it is a felony of the
first degree to engage in deviate sexual intercourse with a complainant who is less than
sixteen years of age. See id.
During Appellee’s trial and prior to sentencing, the Supreme Court of the United
States issued its Alleyne decision, overruling its own prior precedent and establishing a
new constitutional rule of law, grounded on the Sixth Amendment to the United States
Constitution. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2162-63. The Alleyne Court
held that any fact that, by law, increases the penalty for a crime must be treated as an
element of the offense, submitted to a jury rather than a judge, and found beyond a
reasonable doubt. See id. at ___, 133 S. Ct. at 2163. The opinion also explained that
the requirement to treat factors triggering at-law mandatory sentencing enhancements
as offense elements “enables the defendant to predict the legally applicable penalty
from the face of the indictment.” Id. at ___133 S. Ct. at 2161.
The effect of Alleyne’s new rule was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-elemental facts
and requiring such facts to be determined by a preponderance of the evidence at
sentencing. See, e.g., Commonwealth v. Hopkins, ___ Pa. ___, ___, 117 A.3d 247,
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262 (2015) (holding that Section 6317 of the Crimes Code is constitutionally infirm for
these reasons, under Alleyne).
Among a litany of other prescriptions for mandatory minimum sentences, Section
9718(a)(1) of the Sentencing Code requires imposition of a ten-year mandatory
minimum sentence for IDSI crimes, where the victims are less than sixteen years of
age. See 42 Pa.C.S. §9718(a)(1). Of particular relevance here, the statute specifies
that its provisions “shall not be an element of the crime,” and that the applicability “shall
be determined at sentencing,” with factual matters being resolved by the sentencing
court “by a preponderance of the evidence.” Id. §9718(c). Both the directive that a
sentencing factor establishing a mandatory minimum sentence is not an element of a
crime and the allocation of decision-making authority relative to such factor to a judge
contravene Alleyne. See Hopkins, ___ Pa. at ___, 117 A.3d at 257-58. Section 9718
also does not require the Commonwealth to provide notice that it intends to pursue the
mandatory minimum sentence before trial, but rather, prescribes only that such
notification must be furnished after conviction and before sentencing. See 42 Pa.C.S.
§9718(c). Again, the absence of a requirement for pretrial notice of aggravation is in
substantial tension with Alleyne. See Hopkins, ___ Pa. at ___, 117 A.3d at 258.
Significantly, however, at least for purposes of the arguments presented in this appeal,
the statute’s proclamation that the age-of-the-victim factor is not an offense element is
anomalous, since the victim’s age is, in fact, encompassed within IDSI offenses under
Section 3123(a)(7), under which Appellee was convicted.
In October 2013, the sentencing court imposed mandatory minimum sentences
of ten years upon Appellee for each IDSI offense, albeit that the court specified that
those sentences would run concurrently. The record contains no evidence that the
sentencing court conducted any independent inquiry or assessment relative to
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determining the victim’s age, as directed by Section 9718(c). Appellee pursued relief in
a direct appeal; however, he did not raise a challenge to his sentences under Alleyne.
Nevertheless, the Superior Court invoked Alleyne sua sponte, vacated the
judgments of sentence, and remanded for resentencing. See Commonwealth v. Wolfe,
106 A.3d 800, 801, 806 (Pa. Super. 2014). The majority explained that ordinary waiver
principles do not apply to “the legality of the sentence,” and that illegal sentences may
be corrected by appellate courts of their own accord. Id. at 801 (citing Commonwealth
v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)). Further, the majority observed
that the Superior Court had previously determined that violations of Alleyne’s
commands implicate sentencing legality. See id. (citing Commonwealth v. Lawrence,
99 A.3d 116, 122-25 (Pa. Super. 2014)).
The majority regarded the Alleyne error in the present case as being patent, in
that the mandatory minimum sentence was imposed under the authority of a statute
predicating its applicability on a fact designated as a non-element and directing a judge
to make the determination by a preponderance of the evidence. In this regard, the
majority noted that the Superior Court had previously invalidated a range of similarly-
patterned statutes. See id. at 803-05 (citing Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc) (holding that Section 9712.1 of the Sentencing Code
violates Alleyne), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)
(same, relative to Sections 9712 and 9713 of the Sentencing Code)).
The majority acknowledged the anomaly in Section 9718(c), in that the statute
mandates that the age factor “shall not be an element of the crime,” whereas, in point of
fact, age is an element. Indeed, the majority recognized that, in Commonwealth v.
Matteson, 96 A.3d 1064 (Pa. Super. 2014), the Superior Court had previously decided
that a sentence under Section 9718(a)(1) did not violate Alleyne, on account of this
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incongruity. See Wolfe, 106 A.3d at 805-06 (quoting Matteson, 96 A.3d at 1066-67).
Nevertheless, the majority regarded Matteson as implicitly effectuating a severance of
unconstitutional provisions of Section 9718, an exercise which the Superior Court had
refused to undertake in other cases, including the en banc Newman decision. See
Newman, 99 A.3d at 102 (“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.”); see also Valentine,
101 A.3d at 811 (concluding, in accordance with Newman, that a court of common pleas
had performed “an impermissible legislative function” by submitting special
interrogatories to a jury in an effort to work around the unconstitutional terms of a
statute directing that fact-finding relative to a mandatory minimum sentence was to be
accomplished at the sentencing stage).
All members of the three-judge panel took the opportunity to express their views
that Newman was wrongly decided and severance should be permitted. See Wolfe,
106 A.3d at 803 n.4 (Mundy, J.); id. at 807 (Bowes, J., concurring, joined by Jenkins,
J.). Furthermore, because the jury, in fact, had determined that the victim in Appellee’s
case was under the age of sixteen, left to her own devices, Judge Bowes would have
deemed any Alleyne-related error to have been harmless. See id. at 808.
Judge Bowes also expressed concern with the majority’s approach in addressing
severability sua sponte. See id. at 809. In her view, the matter was sufficiently
debatable, and the underlying questions sufficiently complex, that resolution should
have occurred only after full briefing. See id.
Six months after the Superior Court filed its opinion in Wolfe, this Court set forth
its own decision in Hopkins, which vindicated the en banc Newman panel’s position that
unconstitutional terms of a mandatory minimum sentencing statute -- including the
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requirement for operative facts to be determined by a judge at sentencing by a
preponderance of the evidence -- cannot be severed by the judiciary. See Hopkins, ___
Pa. at ___, 117 A.3d at 262. In this regard, this Court found the defective provisions to
be simply too fundamental to the sentencing statute to permit severance. See id. at
259-60 (“[I]t cannot be stressed enough that the legislature intended that Section 6317
be a sentencing provision and not a substantive offense.”). In addition, Hopkins
emphasized the courts’ limited role in redressing statutes infused with such deep-seated
constitutional infirmities. See id. at 262 (“[W]e will not judicially usurp the legislative
function and rewrite [the mandatory minimum sentencing statute] or create a
substantive offense which the General Assembly clearly did not desire. Rather, we
leave it to our sister branch for an appropriate statutory response to the United States
Supreme Court’s decision in Alleyne.”). Hopkins also declined to cognize work-around
efforts deviating from the statutory commands, such as the use of special
interrogatories. Id. (“[T]he General Assembly has made clear that the provisions of
Section 6317 are not to be elements of the crime and no substitute process can fix
that.”).
We allowed appeal in this case to consider the issue, as framed by the
Commonwealth, of “[w]hether the Superior Court[‘s] sua sponte determination that the
ten year mandatory minimum sentence for [IDSI] . . . is facially unconstitutional is
erroneous as a matter of law?” Commonwealth v. Wolfe, ___ Pa. ___, 121 A.3d 433,
434 (2015) (per curiam). Our review of the legal questions involved is plenary.
Presently, the Commonwealth argues that the Superior Court’s decision to
proceed sua sponte upon its discernment of an Alleyne violation was improper. In
support of this proposition, the Commonwealth references several decisions that
generally reinforce the issue preservation doctrine. See id. at 11 (citing Commonwealth
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v. Colavita, 606 Pa. 1, 29-30, 993 A.2d 874, 891-92 (2010), and Steiner v. Markel, 600
Pa. 515, 521-22, 968 A.2d 1253, 1256-57 (2009)). The Commonwealth, however, does
not discuss the line of cases clearly implicated by the Superior Court’s opinion, per
which courts are empowered to address illegal sentences regardless of issue
preservation concerns. See, e.g., Commonwealth v. Foster, 609 Pa. 502, 522, 17 A.3d
332, 345 (2011) (Opinion Announcing the Judgment of the Court);2 cf. Commonwealth
v. Dickson, 591 Pa. 364, 370, 918 A.2d 95, 99 (2007) (“[I]f the sentence clearly
implicates the legality of sentence, whether it was properly preserved below is of no
moment, as a challenge to the legality of sentence cannot be waived.”).
On the merits, the Commonwealth argues that Appellee received all of the
benefit of the constitutional right announced in Alleyne. According to its brief, “[n]o
judicial fact finding took place in this case,” since the age factor already was an element
of the IDSI crime. Brief for Appellant at 8. In this respect -- and although Section
9718(c) explicitly directs sentencing judges to conduct the material fact-finding -- the
Commonwealth loosely pronounces that “Section 9718 does not require any judicial fact
finding.” Id. at 17. In the same vein, the Commonwealth indicates that “Section 9718(a)
standing alone is all that is required to impose the mandatory sentence and it fully
comports with the dictates of Alleyne,” id., thus implicitly suggesting that the elemental
2
Although Foster is a plurality opinion, there was a consensus among a majority of
Justices that there is some range of sentences concerning which challenges are
“nonwaivable” and, thus, subject to correction by the courts of their own accord. See
Foster, 609 Pa. at 522, 17 A.3d at 345 (Opinion Announcing the Judgment of the
Court); id. at 534, 17 A.3d at 352 (Castille, C.J., concurring) (explaining that at least “[a]
classic claim of sentencing ‘legality’ . . . may be raised sua sponte”); id. at 539-41, 17
A.3d 355-56 (Saylor, J., concurring) (“To the degree [that the lead opinion] reflects that
review of legality-of-sentence claims has been made available in limited categories of
cases beyond those involving claims that sentences exceeded statutory maximums --
despite non-adherence to ordinary principles of issue preservation and presentation -- I
support its reasoning and holding.”).
[J-24-2016] - 7
and procedural requirements of Section 9718(c) that are contrary to Alleyne should be
severed, disregarded, displaced, or otherwise obviated.
For similar reasons, to the extent that this Court would find a constitutional
violation, the Commonwealth urges us to consider the error harmless. The
Commonwealth explains that Alleyne is an extension of Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000), and the Supreme Court of the United States has held
that Apprendi errors can be harmless. See Brief for Appellant at 17 (citing United
States v. Cotton, 535 U.S. 625, 632-33, 122 S. Ct. 1781, 1786 (2002)). The
Commonwealth cites Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), for the
proposition that “where a reviewing court concludes beyond a reasonable doubt that [an
offense] element [omitted from a jury charge] was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent
the error, the erroneous instruction is properly found to be harmless.” Id. at 17, 119 S.
Ct. at 1837.
It is also the Commonwealth’s position that the Superior Court’s en banc decision
in Newman should be overruled insofar as it denominated mandatory minimum
sentencing statutes as being facially unconstitutional. Once again without reference to
9718(c), the Commonwealth repeatedly states that “Section 9718 as currently written
fully complies with and provides any defendant with all the Constitutional rights
guaranteed by the Sixth Amendment.” Brief for Appellant at 8, 20. In a footnote, the
Commonwealth alludes to the determination in Hopkins that severance was unavailable
relative to the sentencing provision under consideration there, but the Commonwealth
nonetheless contends that severance would be more readily accomplished as to
Section 9718. See id. at 20 n.5.
[J-24-2016] - 8
The Pennsylvania District Attorneys Association (“PDAA”) has submitted a brief
as an amicus. Unlike the Commonwealth, PDAA does recognize that there is a line of
cases from this Court vindicating the appellate courts’ authority to act sua sponte to
redress illegal sentences. See supra note 2. PDAA describes this area of the law as
“confused,” however, and urges clarification in the form of a rule confining “illegality” to
instances in which jurisdiction to impose a sentence is clearly lacking. See Brief for
Amicus PDAA at 17-18.
On the merits, PDAA supports the Commonwealth’s view that Section 9718 is
not facially unconstitutional, and that it can be applied in the present scenario without
violating the Constitution. The analysis initially segues into a harmless error
assessment, in which PDAA cites Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.
2546 (2006), as an example where the Supreme Court of the United States deemed an
Apprendi-based error to be harmless. See id. at 221-22, 126 S. Ct. at 2552-53. To
mitigate the implication that a harmless-error analysis would suggest that Section 9718
might be invalid in the first instance, PDAA reasons that “applying a statute in a manner
that is constitutionally erroneous but harmless is at least one circumstance in which the
statute continues to be valid.” Brief for Amicus PDAA at 10.
In any event, it is also PDAA’s position that Section 9718 is not constitutionally
erroneous. In this regard, PDAA asserts that Alleyne does not mandate particular forms
of legislation, but rather, merely enforces the federal constitutional rights to trial by a jury
and due process by requiring factual triggers to mandatory minimum sentences to be
specified in the criminal information and proven at trial by a jury (in absence of a jury-
trial waiver), beyond a reasonable doubt. Where, as here, these elements are met in
the abstract, PDAA contends that there is no constitutional violation in the first instance,
and further assessment of the terms of the sentencing statute is unnecessary and,
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indeed, misguided. “By focusing on the sentencing statute,” PDAA indicates, “the
Superior Court was looking through the wrong end of the telescope.” Brief for Amicus
PDAA at 12; id. (“Here the relevant task was not to compare the statute with Alleyne,
but its application.” (emphasis in original)).
PDAA also takes the opportunity to express its continuing disagreement with
Hopkins and urges that it should be overruled, particularly as concerns the decision to
deny severance. See, e.g., id. at 25-26 (“A due process decision by the federal
Supreme Court should not be construed to require wholesale rewriting of criminal
statutes.”). In the absence of severance, PDAA contends that the problematic
requirements of Section 9718 can be deemed “preempt[ed]” or “moot” or “dormant” or
“irrelevant.” Id. at 25. In this way, PDAA envisions that the remainder of the statute can
be constitutionally applied without severance.
Appellee, on the other hand, charges that “this case is an inappropriate vehicle to
even consider the arguments of the Commonwealth and its amicus because . . . they
are all based on the faulty premise that [Appellee] received the requisite statutory and
due process protections in this case.” Brief for Appellee at 22. Appellee stresses that
the relevant provisions of Section 9718 are materially identical to those before the Court
in Hopkins, which held that the sentencing statute containing them was void in its
entirety. See Hopkins, ___ Pa. at ___, 117 A.3d at 260-62. Appellee further observes
that Hopkins confirmed that the statute could not be “cured” by a jury determination at
trial of the factual element necessary to be established. See id. at ___, ___, 117 A.3d
at 250, 260. Additionally, Appellee points to a series of per curiam orders in which this
Court, in more than thirty separate cases, has affirmed decisions of the intermediate
and trial courts holding that sentencing statutes patterned in the same manner as
Section 9718 are non-severable and void. See, e.g., Commonwealth v. Wiley, ___ Pa.
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___, 124 A.3d 735 (2015) (per curiam); Commonwealth v. Peres, ___ Pa. ___, 121 A.3d
983 (2015) (per curiam); Commonwealth v. Guzman, ___ Pa. ___, 121 A.3d 986 (2015)
(per curiam).
Next, Appellee notes that Section 9718(a) applies to convictions for not only
IDSI, but also twenty-one different underlying offenses as defined by multiple criminal-
law statutes, and only in one such permutation is the triggering fact also an element of
the underlying offense. Thus, Appellee regards the Commonwealth’s present legal
position as one of very limited application, and he maintains that all other applications of
Section 9718(a) are “indistinguishably unconstitutionally void” under Hopkins. Brief for
Appellee at 12.
As to the Commonwealth’s and PDAA’s position that a mandatory minimum
sentence can be upheld in the absence of a valid enabling statute, Appellee finds such
position to be untenable. According to Appellee, “[i]n the absence of a mandatory
minimum sentencing statute is a court supposed to make up its own mandatory
minimum sentence or impose the one that used to exist in the now unenforceable
voided statute?” Brief for Appellee at 15 n.4. To the contrary, it is Appellee’s core
position that there simply can be no mandatory minimum sentence without valid
statutory authorization. For this proposition, Appellee draws support from a line of
Superior Court cases holding that unconstitutional statutes are of no effect. See Brief
for Appellee at 15-16 (citing Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa.
Super. 2006) (“If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.”); Commonwealth v. Michuck, 686 A.2d
403, 407 (Pa. Super. 1996) (“An unconstitutional statute is ineffective for any purpose”
and a “court does not have power to enforce a law which is no longer valid.”)).
[J-24-2016] - 11
Appellee also explains that in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d
593 (1999), after determining that a statutory presumption in determining status as a
sexually violent predator was unconstitutional and not severable, this Court simply
struck all relevant provisions of the statute related to sexually violent predators. See id.
at 312-13 & n.18, 733 A.2d at 608 & n.18. Likewise, Appellee argues, the courts are not
entitled to substitute their own procedures for those that are clearly prescribed by the
Legislature in Section 9718(c) and which contravene Alleyne. To the extent that the
sentencing court merely acceded to the jury’s finding rather than performing its statutory
duty to engage in fact-finding, Appellee believes that such procedure is “entirely
contrary to those unambiguously intended by the Legislature” and “is the antithesis of
the court’s appropriate role.” Brief for Appellee at 20; cf. Commonwealth v. Fennell, 105
A.3d 13, 20 (Pa. Super. 2014) (reaffirming that creating any new procedure for imposing
a mandatory minimum sentence to supplant statutes invalidated by Alleyne was a
matter “solely within the province of the legislature”). According to Appellee,
reinstatement of his mandatorily-imposed minimum sentence would be tantamount to
the same sort of rewriting of a statute, and transformation of legislative sentencing
commands, that was eschewed in Hopkins. See Hopkins, ___ Pa. at ___, 117 A.3d at
261.
In the broadest plane, Appellee maintains that statutes violating Alleyne in the
manner discussed in Hopkins are facially void, and no minimum sentence may be
sanctioned that was imposed under them.
Appellee’s amicus, the Defender Association of Philadelphia, clarifies that,
conceptually, per Alleyne, Section 9718 must be viewed as a separate and distinct
offense from the IDSI statute. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2161
(couching an at-law enhancement requirement predicated upon a particular fact as “a
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new, aggravated crime”). The Association recognizes the anomaly driving the
Commonwealth’s arguments for divergence from Hopkins, in that Section 9718(c) is
flatly incorrect in its pronouncement that the age factor is not an element of the offense.
The amicus, however, does not accept the notion that this incongruity relieves
sentencing courts from compliance with their express statutory responsibility to
undertake judicial fact-finding. Because, under Alleyne, the IDSI crime and the Section
9718(a)(1) crime are now separate offenses, the Defender Association asserts that
each requires independent fact-finding by separate fact-finders, per the express
legislative command. See 42 Pa.C.S. §9718(c). In the Association’s estimation,
abstract notions of collateral estoppel -- discussed by neither the Commonwealth nor
PDAA but which appear to be implicit in their arguments -- cannot negate or displace
the sentencing court’s express statutory responsibility. See Brief for the Defender Ass’n
of Phila. at 13 (“What the jury may have found in relation to the IDSI [statute] does not
supplant the trial court’s Section 9718(c) statutorily required fact-finding
responsibilities.”); id. at 11-12 (citing State v. Allen, 31 A.3d 476, 483 (Md. Ct. App.
2011), for the proposition that collateral estoppel may not be used against a criminal
defendant).
The Defender Association does not specifically contest the jury’s finding as to the
victim’s age in this case on its merits. Nevertheless, the Association observes that this
factor may be legitimately in dispute in other cases, such as where the victim emigrates
from a foreign country and arrives without a birth certificate or other official or definitive
records. In any event, amicus regards the issue presented in this case as a structural
one -- Section 9718(c) mandates unconstitutional non-elemental status and judicial fact-
finding; this Court held in Hopkins that such provisions were non-severable; and, thus,
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Section 9718 must be reevaluated by the Legislature, not reformulated or skirted by the
judiciary.
In terms of harmless error, it is the position of the Defender Association that
harmless-error review is inappropriate where a mandatory minimum sentence is
imposed under a statute that is itself unconstitutional and unenforceable. See Brief for
Amicus Defender Ass’n of Phila. at 14 (“The harmlessness of any procedural infirmity
does not bring back to life the constitutional[ly] dead statute.”); accord Fennell, 105 A.3d
at 19-20 n.5 (“[O]nce the Court concludes that the subsections cannot be severed and
must all be struck down, there is no statutorily authorized sentence upon which a
harmless error analysis may be applied.” (citing Commonwealth v. Rivera, 95 A.3d 913,
915 (Pa. Super. 2014), for the proposition that “[i]f no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction”)). While
recognizing that the Commonwealth and PDAA have cited a number of cases
suggesting that Apprendi-based errors can be harmless, amicus relates that none of
these decisions involved a scenario in which the harmless-error determination
“reanimate[d] or [brought] back to life a statute that was found to be facially
unconstitutional and unenforceable absent the harmless error.” Brief for Amicus
Defender Ass’n of Phila. at 15.
II. Discussion
A. Legality of Sentencing
We begin our consideration of the above presentations with the matter of sua
sponte appellate review. Appeal has been allowed in Commonwealth v. Barnes, ___
Pa. ___, 122 A.3d 1034 (2015) (per curiam), to address the question of whether an
Alleyne violation implicates the legality of a sentence and thus renders a challenge non-
waivable. Particularly since the Commonwealth, in the role of the appellant in the
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present case, has not addressed the relevant line of decisions, we defer deeper
consideration of the waiver question to Barnes.3 For the present, it is sufficient to
observe that this Court has previously found that an asserted Apprendi-line violation
implicated the legality of a sentence, see Commonwealth v. Aponte, 579 Pa. 246, 250-
51 n.1, 855 A.2d 800, 802-03 n.1 (2004); accord Commonwealth v. Gordon, 596 Pa.
231, 234, 942 A.2d 174, 175 (2007) (“It seems to be a settled question in Pennsylvania
that Apprendi-based challenges raise questions related to the legality of a sentence[.]”),
and that legality-of-sentence claims are not subject to the traditional waiver doctrine.
See supra note 2.4
3
In his dissent, Justice Dougherty expresses a preference for the present case to be
held pending Barnes. At this juncture, however, Barnes is only midway through the
briefing stage. Moreover, unlike this case, the Barnes appeal does not involve the
anomaly per which the Legislature’s apparent misapprehension concerning offense
elements serves as the Commonwealth’s justification for disregarding the statute’s
unconstitutional directives to judicial officers.
Throughout his opinion, Justice Dougherty repeatedly characterizes the application of
Alleyne in the present scenario as “retroactive” or “retrospective,” without recognizing
that Alleyne was decided months before the issuance of the dispositive sentencing
order under review in this case.
4
In concurrence, Justice Baer advocates a broader approach, relating that “a majority
of justices in Foster agreed that a challenge to the application of a mandatory minimum
sentence was not waivable,” and that the division among Justices involved the
reasoning only. Concurring Opinion, slip op. at 2. To clarify, what was at issue in
Foster was a particular, discrete challenge to a mandatory minimum sentence, namely,
one grounded in a longstanding judicial misreading of the terms of the relevant
sentencing provision. See Foster, 609 Pa. at 505, 17 A.3d at 334 (Opinion Announcing
the Judgment of the Court); see also Commonwealth v. Dickson, 591 Pa. 364, 372-74,
918 A.2d 95, 100-01 (2007) (elaborating on the issue of statutory interpretation
involved). While the Court unanimously determined that such specific challenge could
be vindicated in spite of lapses in issue preservation, it is important to recognize that a
majority of Justices disagreed with the position advanced in the lead opinion that all
challenges associated with the application of mandatory minimum sentences should be
deemed non-waivable. See Foster, 609 Pa. at 526-27, 17 A.3d at 347 (Castille, C.J.,
(continuedN)
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B. Alleyne’s Application
On the merits, we reaffirm our decision in Hopkins in all material respects and
conclude that it applies here. Initially, as should be apparent from the above, we differ
with the Commonwealth’s position that Section 9718 does not require judicial fact-
finding and that Section 9718(a), standing alone, is all that is required to impose the
mandatory minimum sentence. To the contrary, Section 9718 does plainly and explicitly
require judicial fact-finding in its subsection (c). See 42 Pa.C.S. §9718(c) (“The
applicability of this section shall be determined at sentencing . . . by a preponderance of
the evidence.”). Moreover, since subsection (c) is integral to the statute, Section
9718(a) does not stand alone. See id.
Similarly, we regard the suggestions by the Commonwealth and its amicus that
Section 9718(c) can be deemed preempted, moot, dormant, or irrelevant -- or can be
otherwise disregarded or overlooked -- to be tantamount to severance. The severance
doctrine is the appropriate mechanism for testing whether some provisions of an
otherwise unconstitutional statute may stand. See, e.g., Hopkins, ___ Pa. at ___, 117
A.3d at 259-62 (applying the severance doctrine in determining “whether the statute can
survive without [unconstitutionally] invalid provisions”). Accordingly, in our considered
judgment, Section 9718 rises or falls based on the application of such principles, and,
(Ncontinued)
concurring, joined by Orie Melvin, J.); id. at 539-41, 17 A.3d at 355-56 (Saylor, J.,
concurring); id. at 541-42, 17 A.3d at 356-57 (Eakin, J., concurring, joined by Castille,
C.J.).
Certainly, Justice Baer’s inclination to maintain the bright-line approach that he
advocated from a minority position in Foster is understandable. From our perspective,
however, it is preferable for the Court to revisit this controversial area of the law, in
which sharp divisions previously have arisen and been maintained, in a context in which
the competing positions are better developed by the parties in the first instance.
[J-24-2016] - 16
based on their application in Hopkins, it is the latter outcome which must prevail. We
also agree with Appellee and his amicus that a sentence based on an unconstitutional
statute that is incapable of severance is void. Accord Commonwealth v. Armao, 446
Pa. 325, 337-38 & n.9, 286 A.2d 626, 632 & n.9 (1972) (indicating, with reference to an
unconstitutional non-severable statute, that “the whole statutory scheme is invalid on its
face”); Michuck, 686 A.2d at 407 (“An unconstitutional statute is ineffective for any
purpose.”). See generally 16 C.J.S. CONSTITUTIONAL LAW §265 (2016) (depicting the
general rule that an unconstitutional, non-severable statute is “not a law, has no
existence, is a nullity, or has no force or effect or is inoperative” (footnotes omitted)).
Although the anomaly in Section 9718 -- i.e., the incorrect specification that the
age-of-victim factor is not an element of a Section 3123(a)(7) IDSI crime -- injects a
conceptual wrinkle into this case, it does not alter our core assessment. In this regard,
we agree with Appellee and his amicus that, under Alleyne, Section 9718 must be
treated as creating a “distinct and aggravated crime,” Alleyne, ___ U.S. at ___, 133 S.
Ct. at 2163; that the statute’s directive for judicial fact-finding attaches to that
aggravated crime notwithstanding a jury verdict; and that sentencing judges are not free
to disregard such explicit legislative mandates by substituting their own procedures.
Accord Fennell, 105 A.3d at 20. Accordingly, although the jury at Appellee’s trial plainly
decided that the victim was under sixteen years of age, the sentencing court was bound
to make its own determination at sentencing, see 42 Pa.C.S. §9718(c), but it could not
do so in a manner consistent with the Sixth Amendment to the United States
Constitution, on account of Alleyne. See Alleyne, ___ U.S. at ___, 133 S. Ct. at 2163-
64 (disapproving a judicial finding relative to a mandatory minimum sentence).5
5
The dissent authored by Justice Todd references no authority for its proposition that a
sentencing court may treat a statutorily-prescribed fact-finding duty assigned to a
judicial officer as merely a “pro forma act.” Dissenting Opinion, slip op. at 10.
(continuedN)
[J-24-2016] - 17
We are also unable to deem the violation inherent in the application of a
sentencing statute that is unconstitutional on its own non-severable terms to be
harmless. On this subject, we reject PDAA’s contention that Pennsylvania courts
should be completely unconcerned with the unconstitutional provisions of mandatory
minimum sentencing statutes, so long as constitutional requirements can be said to
have been satisfied in the abstract. Although we realize that the Supreme Court of the
United States and other courts have found Apprendi-based errors to be harmless in
various cases, which are ably cited by the Commonwealth and its amicus, none of these
concerned a scenario in which the underlying sentencing statute was itself found to be
invalid and non-severable.6
(Ncontinued)
Obviously, we also do not share the dissent’s perspective that our approach of squarely
addressing the express, direct, and specific challenge to the underlying sentencing
provision presented by Appellee is “myopic[],” “inexplicabl[e],” or otherwise misdirected.
Dissenting Opinion, slip op. at 2, 11. Indeed, we believe that our analysis is
straightforward and rests on far firmer foundation than the dissent’s position that small
segments of a statute that is otherwise irreparably unconstitutional on its terms should
be preserved on account of an anomaly, and despite suffering from the same, integral,
explicit statutory directive for sentencing courts to perform what is now unconstitutional
judicial fact finding.
6
The dissents’ alternative approach favoring a finding of harmless error would sanction
a residual longevity in small segments of an unseverable statute requiring
unconstitutional actions on the part of judicial officers. Along these lines, such a finding
would effectively give credence to the principle advanced by the PDAA that “applying a
statute in a manner that is constitutionally erroneous but harmless is at least one
circumstance in which the statute continues to be valid.” Brief for Amicus PDAA at 10.
From our perspective, however, the prospect of enforcing a statute containing
unseverable, unconstitutional directives to judicial officers here and potentially into
perpetuity on the theory that such enforcement will be harmless on an ongoing basis is
simply untenable. Because Alleyne invalidates material requirements of this statute,
(continuedN)
[J-24-2016] - 18
Notably, as well, from the federal perspective at least, matters of state law are
integral to determining whether, and to what extent, a state statute ultimately may
survive an Apprendi or Alleyne challenge. See, e.g., Lavitt v. Jane L., 518 U.S. 137,
139, 116 S. Ct. 2068, 2069 (1996) (per curiam) (“Severability is of course a matter of
state law.”). Accordingly, it should come as no surprise that the federal courts
frequently focus on the particular application at hand rather than structural problems
with an underlying state legislative enactment. From the state level, however, we have
not been free to avoid the essential inquiry connected with the viability of Section 9718
and other similarly patterned statutes. See, e.g., Hopkins, ___ Pa. at ___, 117 A.3d at
257-63.
We are not unsympathetic to the plight of the Commonwealth in Alleyne’s wake,
given the volume of the mandatory minimum sentences that must be stricken, and the
scale of the task of resentencing. We also appreciate that, in enacting the mandatory
minimum sentencing regime, the General Assembly had acted in good faith reliance on
the previous jurisprudence of the Supreme Court of the United States, which was
discarded by that Court in Alleyne. Nevertheless, new constitutional rules of Alleyne’s
magnitude often have unavoidable, wide-scale consequences. Against the above
backdrop, we believe that the Commonwealth also should appreciate the judiciary’s
position, in that our ability to curtail Alleyne’s ramifications is limited according to our
subordinate role within the federal-state hierarchy, as well as our co-equal status in a
Commonwealth where the legislative power is allocated to another branch.
Harkening back to Hopkins, we reiterate that it is not an appropriate function of
the judiciary to create new aggravated crimes, via severance or otherwise.
(Ncontinued)
and because those provisions are non-severable per Hopkins, the statute simply cannot
be enforced by the judiciary in any respect.
[J-24-2016] - 19
Transformation of a sentencing factor which the Legislature has specifically mandated
“shall not be an element of the crime” into an offense element is simply beyond our
constitutionally prescribed authority and purview. Accord Hopkins, ___ Pa. at ___, 117
A.3d at 262.7
In summary, we reaffirm Hopkins and find that Section 9718 is irremediably
unconstitutional on its face, non-severable, and void.
The order of the Superior Court is affirmed.
Justices Baer, Donohue and Wecht join the opinion with respect to Parts I and
II(B). Justice Donohue joins the opinion with respect to Part II(A).
Justice Baer files a concurring opinion, joined by Justice Wecht.
7
In response to Justice Todd’s portrayal of a “windfall” arising from our present holding,
see Dissenting Opinion, slip op. at 13, we observe that Appellant stands convicted of
three counts of felonies of the first degree, four counts of felonies of the second degree,
and one count of a felony of the third degree. Given that the entire sentencing plan
must be reevaluated in instances in which a defendant challenges one of several
interdependent sentences, see Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517
A.2d 1280, 1283 (1986), on remand Appellee may in fact receive exactly the same
aggregate term of sentence that previously was imposed. Along these lines, Appellant
will again be exposed to a potential maximum aggregate sentence -- exclusive of the
mandatory minimum sentencing provisions -- of up to 107 years’ imprisonment. See 18
Pa.C.S. §1103 (delineating the 20-year maximum sentence for felonies of the first
degree, the 10-year maximum sentence for felonies of the second degree, and the
seven-year maximum sentence for felonies of the third degree). Furthermore, should
Appellant somehow garner a “windfall” from the sentencing court, the Commonwealth
has the ability to seek review of the substantial question that obviously would be
presented in the Superior Court. See 42 Pa.C.S. §9781(b).
Every day, the above individualized, discretionary sentencing regime operates to
facilitate fair and appropriate sentencing for criminal defendants across Pennsylvania.
Thus, we do not find the dissent’s speculative depiction of a windfall to be well taken.
[J-24-2016] - 20
Justice Todd files a dissenting opinion, joined by Justice Dougherty.
Justice Dougherty files a dissenting opinion.
[J-24-2016] - 21