Com. v. Hughes, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN HUGHES,
Appellant No. 2478 EDA 2013
Appeal from the Judgment of Sentence June 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006179-2012
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015
Brian Hughes appeals from the aggregate judgment of sentence of five
to ten years incarceration imposed by the trial court after it found him guilty
of three counts of aggravated assault, discharging a firearm into an occupied
structure, carrying a firearm on public street in Philadelphia, and possession
of an instrument of crime (“PIC”). Since Appellant was sentenced to a
mandatory minimum sentence of five to ten years pursuant to 42 Pa.C.S. §
9712, we are constrained to vacate his judgment of sentence.
On May 3, 2012, Appellant fired numerous shots with a nine millimeter
handgun into the home of Carl Geter, who resided with his wife, children,
and grandchildren. Earlier in the evening, Appellant had confronted Mr.
Geter over a purported $80 debt owed to him. Appellant threatened to
*
Former Justice specially assigned to the Superior Court.
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“knock [Mr. Geter] the fuck out.” N.T., 6/5/13, at 14; Id. at 18. In
addition, Appellant threatened to shoot Mr. Geter. Mr. Geter’s stepdaughter
and several other girls then began to get into an argument. After police
walked into the area, the verbal dispute temporarily dissipated.
However, several hours later, while Mr. Geter, his wife, and son and
two grandchildren were inside, Appellant opened fire at the home on two
occasions within twenty minutes to a half an hour of each other. Mr. Geter’s
wife witnessed Appellant shooting at her home from across the street on the
second occasion. A television, windows, and a decorative figure were all
shot. In addition, furniture and curtains were riddled with bullet holes.
Police recovered thirteen shell casings from the scene outside. Those shell
casings matched bullet fragments located in Mr. Geter’s home. Both the
casings and bullets were fired from a nine millimeter Luger semi-automatic
pistol.
Appellant proceeded to a non-jury trial. The court found him guilty of
the aforementioned charges on June 5, 2013. On that same date, the court
imposed concurrent five to ten year sentences on each aggravated assault
count.1 The court also sentenced Appellant to concurrent sentences of two
to four years imprisonment for discharging a firearm, and one to two years
for carrying a firearm on the public streets of Philadelphia. It did not impose
a sentence on the PIC charge.
1
Appellant waived his right to a presentence investigation.
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Appellant failed to timely appeal. However, on August 1, 2013,
Appellant filed a PCRA petition seeking the reinstatement of his appellate
rights. The court granted that petition on August 16, 2013. This timely
nunc pro tunc direct appeal ensued. The court directed Appellant to file and
serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Appellant complied, but did not raise the instant issue.
Appellant now raises one contention on appeal, “Should this matter
should [sic] be remanded for resentencing because under the recently
decided case of Commonwealth v. Newman, 2014 Pa. Super. 178 (Aug.
20, 2014), the sentencing scheme employed by the lower court was
unconstitutional?” Appellant’s brief at 4.
Appellant correctly asserts that this Court has held that mandatory
minimum sentencing statutes have been declared unconstitutional and
sentences based on those statutes are illegal. He also maintains that, since
his claim relates to the legality of his sentence, the issue is not waived. The
Commonwealth, in misleading fashion, argues that based on this Court’s
decision in Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en
banc), his claim is waived. Specifically, the Commonwealth takes entirely
out of context separate quotes from that decision and meshes them
together. The Commonwealth’s brief states, “an Alleyne claim regarding
‘the constitutionality of a statute can be waived’ where ‘appellant did not
preserve any challenge to his mandatory minimum sentence . . . or the
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constitutionality of § 9712.1[.]” Commonwealth’s brief at 6. However, what
this author actually wrote in Watley was,
[Watley] did not preserve any challenge to his mandatory
minimum sentence, his jury trial rights, or the constitutionality
of § 9712.1, likely because similar challenges had been rejected
based on prior United States Supreme Court decisions. The
constitutionality of a statute can be waived. See
Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139,
1142–1143 (1987) (en banc) (Cirillo, P.J. concurring) (collecting
cases); see also Commonwealth v. Bavusa, 574 Pa. 620, 832
A.2d 1042 (2003); Commonwealth v. Wallace, 368 Pa.Super.
255, 533 A.2d 1051 (1987).
Nonetheless, while we are cognizant that Alleyne was a
Sixth Amendment jury trial rights case, it necessarily implicated
Pennsylvania's legality of sentencing construct since it held that
it is improper to sentence a person to a mandatory minimum
sentence absent a jury's finding of facts that support the
mandatory sentence. Application of a mandatory minimum
sentence gives rise to illegal sentence concerns, even where the
sentence is within the statutory limits. See Commonwealth v.
Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 609 Pa. 502,
17 A.3d 332 (2011) (OAJC); Hopkins, supra at 821. Legality of
sentence questions are not waivable and may be raised sua
sponte by this Court.
Watley, supra 117-118 (footnote omitted).2
2
Writing solely for myself, my own position is that there is a critical
distinction between pre-Alleyne mandatory cases, where judges were
sentencing based on essential facts connected to the crime that were not
determined by a jury or agreed to by the defendant via stipulation or a plea,
and post-Alleyne sentencing cases. In the latter situation, I believe any
Alleyne issue should be preserved because the courts and Commonwealth
were attempting to comply with that decision, thereby eliminating the
constitutional jury trial problem. Hence, the grounds as to why a sentence
would be constitutionally infirm are simply not the same in the pre-Alleyne
cases. Phrased differently, in the pre-Alleyne cases, as here, there is an
alleged and, in some cases, actual constitutional violation, based on an
intervening change in the law, in combination with a lack of discretionary
authority on the part of the sentencing judge. In post-Alleyne cases, the
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Indeed, this Court has since opined that various Alleyne-type
challenges to mandatory minimum sentences present non-waivable legality
of sentence questions. See Commonwealth v. Vargas, 2014 Pa. Super.
289 (en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(en banc); Commonwealth v. Ferguson, 2015 PA Super 1;
Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014);
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014);
Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super. 2014);
Commonwealth v. Bizzel, 2014 Pa. Super. 267; Commonwealth v.
Wolfe, 106 A.3d 800 (Pa.Super. 2014); Commonwealth v. Lawrence, 99
A.3d 116 (Pa.Super. 2014); Commonwealth v. Matteson, 96 A.3d 1064
constitutional jury trial violation is generally no longer a concern. The
absence of discretion in sentencing does not automatically equate to an
illegal sentencing issue. See Commonwealth v. Schutzues, 54 A.3d 86
(Pa.Super. 2012); Commonwealth v. Sarapa, 13 A.3d 961 (Pa.Super.
2011); Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en
banc) (Bender, J., dissenting). For example, in Commonwealth v. Foster,
960 A.2d 160 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), in
addition to the lack of judicial discretion, there was a violation of the
statutory language interpreted by intervening Pennsylvania Supreme Court
case law.
I add that in recent cases I have criticized this Court’s severability and
separation of powers analysis relative to mandatory minimums,
Commonwealth v. Bizzel, 2014 Pa. Super. 267 (Bowes, J., concurring);
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014) (Bowes, J.,
concurring) (joined by Jenkins, J.), and suggested that we re-visit our
legality of sentence paradigm as it relates to Alleyne mandatory minimum
questions. See Wolfe, supra. I continue to adhere to those views, but I
am currently bound by precedent to the contrary.
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(Pa.Super. 2014); Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super.
2014); Watley, supra; Commonwealth v. Munday, 78 A.3d 661
(Pa.Super. 2013).3
3
In addition to Alleyne-related issues, in a host of other cases, we have
construed various mandatory minimum sentencing claims as legality of
sentence questions. See Commonwealth v. Akbar, 91 A.3d 227
(Pa.Super. 2014); Commonwealth v. Armstrong, 74 A.3d 228 (Pa.Super.
2013); Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013);
Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super. 2013);
Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2012);
Commonwealth v. Poland, 26 A.3d 518 (Pa.Super. 2011);
Commonwealth v. Kittrell, 19 A.3d 532 (Pa.Super. 2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
Commonwealth v. Bell, 901 A.2d 1033 (Pa.Super. 2006);
Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001);
Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super. 2000), reversed on
other ground, 786 A.2d 202 (Pa. 2001); see also Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000) (Commonwealth’s issue on appeal,
regarding failure to impose a mandatory fine under 18 Pa.C.S. § 7508, was
non-waivable illegal sentencing claim); Commonwealth v. Eisenberg, 98
A.3d 1268 (Pa. 2014) (constitutional challenge to mandatory minimum fine
was illegal sentencing question); Commonwealth v. Jacobs, 900 A.2d 368
(Pa.Super. 2006) (en banc) (noting in dicta that certain mandatory minimum
sentencing claims present legality of sentence issues); cf. Commonwealth
v. Taylor, __ A.3d __ (Pa. 2014) (filed November 20, 2014) (failure to order
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In Watley, we sua sponte raised and rejected an Alleyne issue. We
held that non-compliance with Alleyne, which had not yet been decided at
the time of Watley’s trial or sentencing, was harmless and that the
defendant’s sentence was not illegal. There, the defendant was convicted by
the jury of both possessing a firearm illegally and possession with intent to
deliver drugs. A firearm and drugs were found together in the front
passenger area of the car. The applicable mandatory sentencing statute
related to firearms being located in close proximity to drugs.
Relying on United States Supreme Court precedent discussing
harmless error for Apprendi violations, see United States v. Cotton, 535
U.S. 625 (2002), we held that, because the facts necessary to determine the
mandatory sentence were undisputed, overwhelming, and decided by the
jury, no Alleyne error occurred. Subsequently, in Munday and Thompson,
mandatory drug and alcohol assessment prior to sentencing, in violation of
statutory language, presented legality of sentence issue).
In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based on it violating the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman. Of course, in Commonwealth v. Lawrence,
99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges
based on equal protection and ex post facto claims, relative to a mandatory
minimum statute, did not present non-waivable illegal sentencing questions.
We add that our Supreme Court did grant allowance of appeal to
consider whether Alleyne claims were illegal sentencing questions.
Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). Subsequently, the
Supreme Court dismissed that appeal as improvidently granted.
Commonwealth v. Johnson, 2014 WL 7335218 (filed Dec. 24, 2014).
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this Court concluded that an Alleyne claim was non-waivable and
meritorious where the jury did not decide the facts necessary to impose the
mandatory sentence. In Munday, Thompson, and Watley, Alleyne had
been decided after the defendants were sentenced.
Newman involved a case where the defendant’s trial, sentencing and
original appeal were decided prior to Alleyne. However, shortly after the
original panel decision in Newman, the United States Supreme Court
handed down Alleyne, and the defendant successfully sought re-argument.
The Newman Court not only treated the Alleyne argument as an illegal
sentencing claim, but also reached an issue of severability that had not been
leveled below. Like Munday, and unlike Watley, the jury’s verdict in
Newman did not reveal that it found the facts needed to prompt the
mandatory. As in Watley, the triggering facts for the mandatory sentence
related to whether a firearm was in close proximity to drugs.
Although recognizing that an Alleyne issue could be considered under
a harmless error analysis, the Newman Court found that the failure of the
jury to expressly determine whether the gun in that case was in close
proximity to drugs precluded a harmless error finding. The Newman
majority further declined to remand for the empaneling of a second
sentencing jury, finding that such a procedure would violate the separation
of powers doctrine. In doing so, it ruled that the firearms mandatory
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statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety and not
merely the section governing a court’s burden of proof.
In Valentine, supra, this Court expanded Newman to prevent the
Commonwealth from submitting to the jury facts not included as an element
of the offense but set forth in the mandatory sentencing statutes. There, in
a post-Alleyne case, the Commonwealth amended its criminal information
to include whether the defendant visibly possessed a gun and the offense
occurred in or near a place of public transportation. Without objection, the
jury was presented with specific jury interrogatories as to those facts. The
jury found each fact beyond a reasonable doubt. The Valentine Court ruled
that Newman rendered both mandatory sentencing statutes in question
therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional in their
entirety. Subsequently, in Commonwealth v. Ferguson, 2015 Pa. Super. 1,
this Court reiterated that sentences pursuant to 42 Pa.C.S. § 9712 are
illegal. Accordingly, based on Newman, Valentine, and Ferguson, we
must vacate Appellant’s judgment of sentence.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Shogan, J. joins.
Fitzgerald, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2015
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