Com. v. Neidig, N.
1067 MDA 2016
| Pa. Super. Ct. | Oct 31, 2017Background
- Neil Andrew Neidig was resentenced on February 26, 2016 after this Court vacated his 2012 sentence because mandatory minimums tied to school‑zone drug enhancements (18 Pa.C.S. § 6317) were invalid under Alleyne.
- The trial court, on remand, imposed an aggregate sentence of 14½ to 29 years without statutory mandatory minimums but applied school‑zone enhancements under the Sentencing Guidelines to four convictions.
- Neidig filed a timely post‑sentence motion (March 7, 2016); the court granted recalculation of credit for time served but denied other relief (order entered March 26, 2016; amended credit entered June 30, 2016).
- Neidig appealed, arguing resentencing produced a sentence no less punitive and improperly included aggravation and a school‑zone enhancement despite the remand for Alleyne error.
- The Commonwealth and trial court relied on post‑Alleyne authority allowing non‑statutory sentencing enhancements; Neidig did not object to the school‑zone enhancement at sentencing or in his post‑sentence motion (waiver issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by applying school‑zone enhancement on resentencing | Commonwealth: enhancements under Sentencing Guidelines are permissible after Alleyne so long as not mandatory minimums | Neidig: resentencing should not be more punitive; school‑zone enhancement improperly applied after remand for Alleyne error | Court: claim waived because Neidig failed to raise enhancement at sentencing or in post‑sentence motion; affirmed |
| Whether resentencing produced a sentence no less punitive than original sentence | Neidig: resentenced term remained as punitive and included aggravation/enhancements contrary to remand purpose | Commonwealth: court removed mandatory minimums and applied guideline enhancements; resentencing lawful | Court: did not reach merits due to waiver; procedural default bars review |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (any fact that increases penalty is an element the jury must find beyond a reasonable doubt)
- Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (section 6317 school‑zone mandatory minimums invalid under Alleyne)
- Commonwealth v. Mastromarino, 2 A.3d 581 (Pa. Super. 2010) (discretionary aspects of sentencing not appealable as of right)
- Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) (procedural requirements to preserve discretionary‑sentencing claims)
- Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) (quoting procedural test for discretionary sentencing review)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (claims waived if not raised at sentencing or in post‑sentence motion)
- Commonwealth v. Kittrell, 19 A.3d 532 (Pa. Super. 2011) (discretionary sentencing challenges must be preserved at sentencing or in post‑sentence motion)