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2014 PA Super 263

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JAMAR CARDWELL Appellant No. 2392 EDA 2013

Appeal from the Judgment of Sentence June 18 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0009069

- 2012

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J. *
OPINION BY MUNDY, J.: FILED NOVEMBER 25, 2014 Appellant, Jamar Cardwell, appeals from the June 18, 2013 aggregate judgment of sentence of three to six years’ imprisonment, after he was convicted of one count each of possession with intent to deliver (PWID) and intentional possession of a controlle d substance. 1 After careful review, we vacate and remand for resentencing. We summarize the relevant factual and procedural background of this case as follows. On August 8, 2012, the Commonwealth filed an information charging Appellant with the above

- me ntioned offenses. On March 23, 2013, Appellant proceeded to a one

- day bench trial, at the conclusion of which the

____________________________________________ * Reti red Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780

- 113(a)(30) and 780

- 113(a)(16), respectively.J

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trial court convicted Appellant of both charges. On June 18, 2013, the trial court imposed a sentence of three to six years’ imprisonment on each charge, to run concurrently to each other. Relevant to this appeal, Appellant received a three

- year mandatory minimum sentence for PWID on the basis of the weight of the phencyclidine (PCP), pursuant to 18 Pa.C.S.A. § 7508(a)(4)(i). Appellant filed a timely post

- sentence motion on June 26, 2013, which the trial court denied on August 13, 2013. On August 14, 2013, Appellant filed a timely notice of appeal. 2 On appeal, Appellant raises one issue for our review. Did not the [trial] court err in apply ing certain provisions of the mandatory minimum sentencing statute at 18 Pa.C.S. § 7508 to [Appellant]’s case, and thereby sentencing [Appellant] to a term of incarceration of 3 to 6 years, in that portions of [Section] 7508 are facially unconstitutional p ursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013), and are non

- severable from the remaining provisions of the statute? Appellant’s Brief at 3. At the outset, we note that issues pertaining to Alleyne go directly to the legality of the sentence. Commonwealth v. Lawrence , 99 A.3d 116, 123 (Pa. Super. 2014). With this in mind, we begin by noting our well

settled standard of review. “A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction.”

____________________________________________ 2 Appellant and the trial court have complied with Pa.R.A.P. 1925.J

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Commonwealth v. Borovichka , 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation omitted). It is also well

- established that “[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.” Commonwealth v. Rivera , 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo and our scope of review is plenary. ” Commonwealth v. Akbar , 91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted). In this case, Appellant was sentenced under a mandatory minimum statute at Section 7508, which provides in relevant part, as follows.

§ 7 508. Drug trafficking sentencing and penalties (a) General rule. -- Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

... (4) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is methamphetamine or phencyclidine or is a salt, isomer or salt of an isomer of methamphet amine or phencyclidine or is a mixture containing methamphetamine or phencyclidine, containing a salt of methamphetamine or phencyclidine, containing an isomer of methamphetamine or phencyclidine, containing a salt of an isomer of methamphetamine or phency clidine shall, upon conviction, be sentenced toJ

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- a mandatory minimum term of imprisonment and a fine as set forth in this subsection: (i) when the aggregate weight of the compound or mixture containing the substance involved is at least five grams and les s than ten grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of ano ther drug trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;

... (b) Proof of sentencing. -- Provisions of this section shall not be an e lement 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 s entencing. 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 determin e, by a preponderance of the evidence, if this section is applicable. 18 Pa.C.S.A. § 7508. This Court recently explained Alleyne ’s impact on the imposition of mandatory minimum sentences as follows.

In Alleyne , the Supreme Court held that “ facts that i ncrease mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt. Alleyne , supra at 2163. Alleyne is an extension of the Supreme Court’s line of cases beginning with Apprendi v. New Jersey , 530 U.S. 466 (2000 ). In Alleyne , the CourtJ

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- overruled Harris v. United States , 536 U.S. 545 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact finding which raises the minimum sentence and that which raises the maximum sentence.

It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evide nce that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime

— and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense. Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravat e the punishment. Elevating the low

end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the ma ndatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality d emonstrates 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. Alleyne , supra at 2160

- 2161 (internal quotation marks and citations omitted).J

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Commonwealth v. Miller , --- A.3d

--- , 2014 WL 4783558, *4

- 5 (Pa. Super. 2014). Although Appellant was convicted at a bench trial, under the Due Process Clause, he was still entitled to have the extra element of the aggravated offense found by the factfinder beyond a reasonable doubt pursuant to Alleyne and In re Winship , 397 U.S. 358 (1970). Alleyne , supra at 2156. This Court has recently noted that Section 7508(a)( 2)(ii) cannot be constitutionally applied in light of Alleyne , resulting in an illegal sentence. See Commonwealth v. Thompson , 93 A.3d 478, 493 (Pa. Super. 2014) (resolving an as

- applied challenge to Section 7508(a)(2)(ii) in Thompson’s favor in light of Alleyne and remanding for resentencing). However, in this case, Appellant argues that Section 7508 is facially unconstitutional in its entirety and its subsections cannot be severed from one another. Appellant’s Brief at 16

- 18. The Commonwealth counters that because Appellant stipulated to the drug weight for the purposes of trial, any error regarding Alleyne was rendered harmless. Commonwealth’s Brief at 10

- 11. Both parties cite to this Court’s recent decision in Commonwealth v.
Newman , 99 A.3d 86 (Pa . Super. 2014) ( en banc ).
In Newman , this Court confronted the same type of challenge to the mandatory minimum found at Section 9712.1, regarding the distance between drugs and guns. Id. at 91. Section 9712.1 has the same format as Section 7508 in that one subsection contains the added element of theJ

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aggravated offense, and another subsection states that the elements shall be found by the trial court by a preponderance of the evidence. See id. , quoting 42 Pa.C.S.A. §§ 9712.1(a), 9712.1(c); 18 Pa.C.S.A. §§ 7508(a)(4)(i), 7508(b). The Newman Court first concluded that the defendant’s sentence was illegal in light of Alleyne and required this Court to vacate and remand for resentencing. Id. at 98. However, this Court noted that Alleyne issues are subject to harmless error analysis, but nevertheless concluded that the Alleyne issue in Newman was not harmless. Id. at 98

- 100.

We cannot find that the error here was harmless, because the evidence as to the element of “in close proximity” was not necessarily overwhelming. As previously noted, the drug contraband was found in a bathroom. The firearm was found under a mattress in a bedroom across the hallway, and the actual distance between the contraband and the firearm was six to eight feet. Recently, our sup reme court discussed at length the meaning of “in close proximity” as it is used in Section 9712.1. See Commonwealth v. Hanson , 82 A.3d 1023 (Pa. 2013), generally. The Hanson court noted that the concept of “in close proximity” is inherently imprecise an d observed the differing conclusions as to its meaning both among the courts of this Commonwealth and among the courts of other jurisdictions. Hanson , 82 A.3d at 1037

– 1038, and otherwise, generally. If learned jurists cannot decide with precision what con stitutes “in close proximity,” we cannot say with finality that a panel of lay jurors would undoubtedly conclude from the evidence here that the firearm was “in close proximity” to the drug contraband.J

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Id. at 99

- 100. Finally, this Court rejected the Comm onwealth’s argument that, if the error was not harmless, the appropriate remedy would be to remand to the trial court to empanel a second sentencing jury. Specifically, in rejecting this argument, the Newman Court concluded that Section 9712.1 in its enti rety must be struck down as unconstitutional in light of Alleyne , concluding that its subsections were not severable. 3

The Commonwealth’s suggestion that we remand for a sentencing jury would require this court to manufacture whole cloth a replacement enf orcement mechanism for Section 9712.1; in other words, the Commonwealth is asking us to legislate. We recognize that in the prosecution of capital cases in Pennsylvania, there is a similar, bifurcated process where the jury first determines guilt in the t rial proceeding (the guilt phase) and then weighs aggravating and mitigating factors in the sentencing proceeding (the penalty phase). However, this mechanism was created by the General Assembly and is enshrined in our statutes at 42 Pa.C.S.A. § 9711. 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

. We cannot do so.

____________________________________________ 3 The author in this case concurred in the result in Newman , disagreeing with the majority that the subsections of Section 9712.1 could not be severed, concluding that no special “mechanism” was required to allow a jury to find the element of the aggravated offense beyond a reasonable doubt. Id. at 105 (Mundy, J., concurring). Th e author continues to believe Newman was wrongly decided on that point; however, it is binding on this Court and must be applied in a principled manner in all future cases unless reversed by our Supreme Court.J

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Id. at 102. 4
In the case sub judice , during trial, Appellant stipulated that the total weight of the PCP was 6.148 grams. Specifically, the Commonwealth presented laboratory reports showing that one item contained 4.496 grams and one item contained 1.652 grams of phencyclidine. N.T., 3/23 /13, at 82

- 84; N.T., 3/23/13, Commonwealth’s Exhibit 1, at 16. The trial court noted in its Rule 1925(a) opinion that it, sitting as the factfinder, found “the evidence submitted at trial and which was determined to be entirely credible, established beyon d a reasonable doubt that [] Appellant possessed over 6 grams of PCP with the intent to distribute such to various people he came in contact with that day.” Trial Court Opinion, 1/16/14, at 6. However, we are mindful of this Court’s recent decision in
Co mmonwealth v. Valentine , --- A.3d

--- , 2014 WL 4942256 (Pa. Super. 2014). In Valentine , the Commonwealth sought to have a mandatory minimum sentence imposed against the defendant. The trial court allowed the Commonwealth to amend the information to inclu de the necessary additional elements required by Alleyne to be found by the jury beyond a reasonable doubt. Id. at *1. The two questions were submitted to the jury, and it found the additional elements beyond a reasonable doubt. Id. As a

____________________________________________ 4 We note the Commonwealth has filed a petition for allowance of appeal with our Supreme Court in Newman , docketed at 646 MAL 2014. As of the date of this decision, it is still pending.J

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result, the tr ial court imposed the appropriate mandatory minimum sentences pursuant to the appropriate statutes. Id. Although the trial court seemingly followed Alleyne ’s requirements, the Valentine Court held that the trial court was not permitted to allow the jury to resolve the mandatory minimum questions absent legislative action in accordance with Newman

.

Here, the trial court permitted the jury, on the verdict slip, to determine beyond a reasonable doubt whether Appellant possessed a firearm that placed the vict im in fear of immediate serious bodily injury in the course of committing a theft for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or in part at or near public transportation, fo r purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9713(a). The jury responded “yes” to both questions. In presenting those questions to the jury, however, we conclude, in accordance with Newman , that the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentences in compliance with Alleyne

. The trial court erroneously presupposed that only Subsections (c) of both 9712 and 9713 (which permit a trial judge to enhance the sentence based on a preponderance of the evidence standard) were unconstitutional under Alleyne , and that Subsections (a) of 9712 and 9713 survived constitutional muster. By asking the jury to determine whether the factual prerequisi tes set forth in § 9712(a) and § 9713(a) had been met, the trial court effectively determined that the unconstitutional provisions of § 9712(c) and § 9713(c) were severable. Our decision in Newman however holds that the unconstitutional provisions of § 97 12(c) and § 9713(c) are not severable but “essentially andJ

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- inseparably connected” and that the statutes are therefore unconstitutional as a whole. Id. at 13

– 14. (“If Subsection (a) is the predicate arm ... then Subsection (c) is the enforcement arm. Without Subsection (c), there is no mechanism in place to determine whether the predicate of Subsection (a) has been met.”). Moreover, Newman makes clear 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

. ” Newman at 14. Therefore, the trial court lacked th e authority to allow the jury to determine the factual predicates of §§ 9712 and 9713. See Newman at 14

– 15 (recognizing that several trial courts of this Commonwealth have found Section 9712.1 as a whole to be no longer workable without legislative guidan ce). Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence and remanded for resentencing, without the applicable mandatory minimum
sentences. 5 Id. at *9.

____________________________________________ 5 As noted above, Newman did acknowledge that Alleyne errors, like those under Apprendi v. New Jersey , 530 U.S. 466 (2000), are subject to harmless error analysis. See generally Newman , supra at 98

- 100. However, if Newman ’s overriding conclusion is, as Valentine suggests, that mandatory minimum statutes in Pennsylvania must be stricken in their entirety as facially unconstitutional, any discussion of harmless error is rendered moot. This is because, once the Court concludes that the subsections cannot be severed and must all be struck down, there is no sta tutorily authorized sentence upon which a harmless error analysis may be applied. See, e.g. , Rivera , supra (stating, “[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction[]”) (citation omitte d).J

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In the instant case, as noted above, the Commonwealth and Appellant entered into a stipulation that the total weight of the PCP in this case was 6.148 grams. N.T., 3/23/13, at 82

- 84; N.T., 3/23/13, Commonwealth’s Exhibit 1, at 16. As a result, the trial court concluded that the Commonwealth did prove this element to the trial co urt beyond a reasonable doubt, as required by Alleyne and Winship . Trial Court Opinion, 1/16/14, at 6. However, this conclusion was premised on the trial court’s belief that Section 7508(b), which permits the trial court to find the necessary elements by a preponderance of the evidence, was severable from the rest of the
statute. Id. Pursuant to this Court’s decision in Newman , this conclusion
was not correct. Furthermore, we see no meaningful difference, for the purposes of
Newman and Valentine , between submitting the element to the jury and accepting a stipulation from a defendant. They both have the purpose of finding a method to impose a mandatory minimum sentence outside the statutory framework, but consistent with Alleyne . However, both N ewman and Valentine unequivocally state that creating a new procedure in an effort to impose a mandatory minimum sentence is solely within the province of the legislature. See Newman , supra ; Valentine , supra . While submission to a jury is a more formal a nd involved procedure, we decline to fracture Newman and Valentine further by concluding that when read together, they only prohibit formal mandatory minimum procedures,J

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but permit informal ones. Based on these considerations, we conclude that the trial c ourt erred in imposing the mandatory minimum sentence in this case. As a result, Appellant is entitled to relief. Based on the foregoing, we are constrained to conclude the trial court erred in imposing the mandatory minimum sentence in light of this Cou rt’s recent decisions in Newman and Valentine . Accordingly, the trial court’s June 18, 2013 judgment of sentence is vacated, and the case is remanded for resentencing, without the mandatory minimum, consistent with this opinion. Judgment of sentence vaca ted. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/25/2014