Commonwealth v. Foster
17 A.3d 332
| Pa. | 2011Background
- Appellee Oliver Foster was convicted in a nonjury trial of robbery, conspiracy, theft, and PIC for a Jan. 6, 2006 ATM robbery in Philadelphia.
- A co-conspirator, Darryl, carried a firearm; Foster did not visibly possess a firearm.
- Section 9712(a) required a five-year mandatory minimum for those who commit a violent crime with a firearm during the offense.
- Foster received a five-to-ten-year sentence based on the mandatory minimum. Four months later, this Court decided Dickson (2007), holding unarmed co-conspirators are not subject to §9712(a).
- Foster sought relief after Dickson; the Superior Court remanded, allowing a Dickson challenge on direct appeal; the Commonwealth did not file post-sentence motions.
- This Court affirmatively held that Foster’s Dickson challenge implicated the legality of his sentence and was not foreclosed by waiver, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dickson challenges implicate the legality of a sentence and are nonwaivable. | Foster; Dickson applies to unarmed co-conspirators. | Commonwealth; Dickinson-style challenges are waivable and fall within discretionary sentencing. | Dickson challenge implicates legality; nonwaivable. |
| Whether Dickson should apply retroactively to Foster's case. | Dickson's retroactive effect should operate given direct-appeal posture and restoration of discretion. | Retroactivity not automatic; waiver and procedural posture matter; limits may apply. | Retroactive application affirmed; remand for resentencing. |
Key Cases Cited
- Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (Pa. 2007) (rule that the mandatory minimum does not apply to unarmed co-conspirators)
- Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179 (Pa. 1979) (authority analysis for sentencing under repealed statutes; not dispositive here)
- In re M.W., 555 Pa. 505, 725 A.2d 729 (Pa. 1999) (statutory authority to order restitution; legality of dispositional order)
- Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280 (Pa. 2000) (unwaivable rights to appeal mandatory penalties when law requires them)
- Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (Pa. 2005) (illegal sentence when exceeding statutory maximum; Apprendi context)