Commonwealth, Aplt. v. Resto, A., 179 A.3d 18

Lead Opinion

CHIEF JUSTICE SAYLOR

In this appeal, the Court considers whether a mandatory minimum sentencing provision that does not require proof of any aggravating fact violates the Sixth Amendment per Alleyne v. United States , 570 U.S. 99 , 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013).

At a jury trial, Appellee was convicted of, among other offenses, rape of a child. See 18 Pa.C.S. § 3121(c). At sentencing, the common pleas court implemented the mandatory minimum sentence for that offense per Section 9718(a)(3) of the Sentencing Code, which, in relevant part, prescribes as follows:

A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. § 3121(c) and (d) -not less than ten years.

18 Pa.C.S. § 9718(a)(3).

On appeal, Appellee challenged the constitutional validity of his sentence under Alleyne , which disapproves judicial fact-finding related to "facts that increase mandatory minimum sentences." Alleyne , 570 U.S. at 116 , 133 S.Ct. at 2163 . In response, the Commonwealth repeatedly asserted that Section 9718(a)(3) does not run afoul of Alleyne because, on its plain terms, the statute simply does not require a judge to determine any facts. See, e.g. , Brief for Appellee in Commonwealth v. Resto , No. 2125 MDA 2014 (Pa. Super.), at 12 (explaining that "§ 9718(a)(3) does not require any additional fact to be found. It imposes a mandatory minimum sentence upon conviction of the enumerated crimes-plain and simple."). The Commonwealth distinguished other subsections of Section 9718 that had been found to be unconstitutional on the basis that those provisions did, in fact, delineate aggravating facts. See, e.g. , id. ("§ 9718(a)(1) requires a mandatory minimum sentence to be imposed where a person is convicted of one of the enumerated crimes and the victim is found to be less than 16 years of age. It is the requirement of this additional fact that ... runs afoul of Alleyne ." (emphasis in original) ).

The Superior Court affirmed by way of a memorandum decision. See Commonwealth v. Resto , No. 2125 MDA 2014, slip op. , 2015 WL 6874976 (Pa. Super. July 14, 2015). The panel, however, did not address the Commonwealth's specific argument in its opinion. Rather, the panel observed that the intermediate court had "systematically been declaring unconstitutional Pennsylvania's mandatory minimum sentencing statutes that permit a trial court, rather than a jury, to make the critical factual findings for sentencing ." Id. at 8-9, 2015 WL 6874976 , at *5 (emphasis added) (citing Commonwealth v. Newman , 99 A.3d 86 , 90 (Pa. Super. 2015), Commonwealth v. Valentine , 101 A.3d 801 , 812 (Pa. Super. 2014), and Commonwealth v. Cardwell , 105 A.3d 748 , 751 (Pa. Super. 2014) ). Apparently assuming that there were facts to be found under Section 9718(a)(3), the panel explained that Section 9718(c), which directs sentencing judges to assess aggravating facts delineated in Section 9718(a), had been found to be unconstitutional and non-severable. See id. at 9, 2015 WL 6874976 , at *5 (citing Commonwealth v. Wolfe , 106 A.3d 800 , 805 (Pa. Super. 2014), aff'd , 636 Pa. 37 , 140 A.3d 651 (2016) ).

We allowed appeal to consider the following issue as framed by the Commonwealth:

Did the Pennsylvania Superior Court err in holding that the mandatory minimum sentence found in 42 Pa.C.S.A. § 9718(a)(3) [is] unconstitutional in light of Alleyne v. United States [] 570 U.S. 99 , 133 S.Ct. 2151 [ 186 L.Ed.2d 314 ] (2013), despite that statutory provision calling for no facts to be found beyond simply being convicted of the enumerated offense?

Commonwealth v. Resto , 636 Pa. 462 , 144 A.3d 93 (2016) ( per curiam ). Our review of this legal issue is plenary. See, e.g. , Commonwealth v. Bullock , 590 Pa. 480 , 487, 913 A.2d 207 , 212 (2006).

The Commonwealth maintains its central position that there are no aggravating facts to be found under Section 9718(a)(3), and therefore, Alleyne is inapposite. Appellee, for his part, analogizes Section 9718(a)(3) to Section 9718(a)(1), which was the subject of the Wolfe decision cited by the Superior Court. In this regard, Appellee treats a conviction for an offense triggering a mandatory minimum sentence as the equivalent of an aggravating fact. See Brief for Appellee at 1 ("In the Wolfe case itself the factor triggering the mandatory sentence was also contained as an element of the offense for which the jury convicted the defendant therein." (emphasis added) ). Appellee also explains that this Court had found a proof-at-sentencing provision analogous to Section 9718(c) to be non-severable in Commonwealth v. Hopkins , 632 Pa. 36 , 61-62, 117 A.3d 247 , 262 (2015).

I. Section 9718(a)(3), On Its Terms, Does Not Implicate Alleyne

The Commonwealth is correct that Section 9718(a)(3) of the Judicial Code is unlike the preceding subsection that was deemed unconstitutional in Wolfe , because subsection (a)(3) requires no proof of any predicate or aggravating facts. Compare 42 Pa.C.S. § 9718(a)(3) ("A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows ..."), with id. § 9718(a)(1)

(providing the same " when the victim is less than 16 years of age " (emphasis added) ). As such, subsection (a)(3) simply cannot run afoul of a constitutional rule disapproving judicial fact-finding related to "facts that increase mandatory minimum sentences." Alleyne , 570 U.S. at 116 , 133 S.Ct. at 2163 .

Contrary to Appellee's position, a conviction returned by a jury to which a mandatory minimum sentence directly attaches is not the same as an aggravating fact that increases a mandatory minimum sentence. In any event, such a conviction is itself a contemporaneous jury determination, and the concern of Alleyne is with sentencing enhancements tied to facts to be determined by a judge at sentencing. See id. at 117 , 133 S.Ct. at 2163-64 . ¹ While recognizing that Section 9718(c)'s prescription for "proof at sentencing" may be awkward and, indeed, superfluous relative to the mandatory minimum sentence imposed by Section 9718(a)(3) -since no proof of any facts is required at sentencing under that provision-such idiosyncrasy has nothing to do with Alleyne .

II. Severability

Despite the conclusion that Section 9718(a)(3), in and of itself, does not implicate Alleyne , the issue of whether the statute is invalid under that decision is more complex, since other provisions of Section 9718 do offend the relevant constitutional norm. See, e.g. , Wolfe , 636 Pa. at 51-56, 140 A.3d at 660-63 (analyzing Section 9718(a)(1) and concluding that the statute violates Alleyne ). Accordingly, to the degree that the unconstitutional provisions would be deemed non-severable, Section 9718 as a whole would be void as a consequence of Alleyne .

Significantly, the remaining question is not whether Section 9718(c) should be severed, as has been the issue in other cases. In those cases, Section 9718(c) operated as an unconstitutional requirement for sentencing judges to determine the aggravating facts delineated in subsection (a)(1). See id. at 53-54, 140 A.3d at 661 . However, as discussed above, subsection (c) does not function in this fashion in relation to Section 9718(a)(3), given that subsection (a)(3) does not require any aggravating facts to be found. Thus, the relevant concern here is whether the unconstitutional provisions of Section 9718 - i.e. , those that do specify aggravating facts relative to other mandatory minimum sentences-may be severed.

In this regard, these provisions, subsections (a)(1) and (a)(2), are presumptively severable. See 1 Pa.C.S. § 1925 (prescribing, subject to enumerated exceptions, that "[t]he provisions of every statute shall be severable"). Severance should be withheld only if:

(1) the valid provisions of the statute are so essentially and inseparably connected with the void provisions that it cannot be presumed that the legislature would have enacted the remaining valid provisions without the voided ones; or (2) the remaining valid provisions standing alone are incomplete and incapable of being executed in accord with the intent of the General Assembly.

Hopkins , 632 Pa. at 53 , 117 A.3d at 257 (citing 1 Pa.C.S. § 1925 ).

Here, the presumption of severability remains intact. Subsections (a)(1) and (a)(2) are not inseparably connected with subsection (a)(3); rather, each subsection prescribes a separate and independent array of mandatory minimum sentences. ² Furthermore, the remaining valid provisions-subsections (a)(3), (b), (c), (d), and (e)-are in no way incomplete. Rather, together they reflect a discrete series of crimes implicating mandatory minimum sentences coupled with the entire implementing scheme designed by the Legislature.

III. This Court's Decision in Wolfe

Although the above reasoning disposes of the issue presented on appeal, the Commonwealth also addresses language from this Court's decision in Wolfe , which this author wrote, disapproving of Section 9718 in its entirety. See, e.g. , Wolfe , 636 Pa. at 56, 140 A.3d at 663 ("[W]e ... find that Section 9718 is irremediably unconstitutional on its face, non-severable, and void."). Notwithstanding this language, the Commonwealth contends that Wolfe should not be read to invalidate Section 9718 as a whole, because the decision concerned only Section 9718(a)(1), which, unlike subsection (a)(3), did premise the applicability of mandatory minimum sentences upon an aggravating fact.

I agree with the Commonwealth that some passages of Wolfe are written in overbroad terms to the degree that they disapprove Section 9718 as a whole, when the Court was not considering the materially distinct operation of subsection (a)(3). Nevertheless, to prevent such loose language from establishing governing law, this Court employs the principle that the holding of a judicial decision is to be read against its facts. See, e.g. , Oliver v. City of Pittsburgh , 608 Pa. 386 , 395, 11 A.3d 960 , 966 (2011) (citing Commonwealth v. McCann , 503 Pa. 190 , 195, 469 A.2d 126 , 128 (1983) ). ³ Accordingly, Wolfe does not prevent the recognition that a precept concerning aggravating facts does not apply to provisions of a statute requiring none. Moreover, even if the relevant references to Section 9718 as a whole were not dictum , the doctrine of stare decisis does not apply to pronouncements that are not adequately supported in reason. See Mayhugh v. Coon , 460 Pa. 128 , 135-36, 331 A.2d 452 , 456 (1975) ("The doctrine of stare decisis was never intended to be used as a principle to perpetuate erroneous principles of law."). Again, the legal analysis of Wolfe is directed to mandatory minimum sentencing provisions that prescribe aggravating facts. See Wolfe , 636 Pa. at 51-56, 140 A.3d at 660-63 .

The passage from Wolfe quoted above should have said that Section 9718 was void in the relevant respect , or more precisely: " Section 9718 [ (a) (1) ] is irremediably unconstitutional on its face, [ Section 9718(c) is] non-severable, and [ Section 9718(a)(1) is] void." Id. at 56, 140 A.3d at 663 . This is, in fact, the only understanding that comports both with the issue accepted for review by the Court challenging only the constitutionality of a sentence under subsection (a)(1), see Commonwealth v. Wolfe , 632 Pa. 446 , 121 A.3d 433 (2015) ( per curiam ), and the linchpin of Wolfe's reasoning that the statute "must be treated as creating a 'distinct and aggravated crime,' " Wolfe , 636 Pa. at 53, 140 A.3d at 661 (quoting Alleyne , 570 U.S. at 116 , 133 S.Ct. at 2163 ). I find it appropriate to render this acknowledgement and correction at this juncture. ⁴

The order of the Superior Court is reversed, and the matter is remanded for reinstatement of the judgment of sentence.

Justice Todd files a concurring opinion in which Justice Dougherty joins.

Justice Dougherty files a concurring opinion in which Justice Todd joins.

Justice Baer files a dissenting opinion.

Justice Mundy files a dissenting opinion.

Justices Donohue and Wecht did not participate in the consideration or decision of this case.

1 This case does not concern previous convictions considered as aggravation at sentencing. Notably, under prevailing federal jurisprudence, such prior convictions are not treated as a type of fact implicating Alleyne . See, e.g. , Commonwealth v. Bragg , 133 A.3d 328 , 332-33 (Pa. Super. 2016) (citing, indirectly, Almendarez-Torres v. United States , 523 U.S. 224 , 243-47, 118 S.Ct. 1219 , 1230-33, 140 L.Ed.2d 350 (1998) ), aff'd , --- Pa. ----, 169 A.3d 1024 (2017) ( per curiam ).

2 As previously noted, subsection (a)(1) delineates a series of offenses subject to sentencing enhancements "when the victim is less than 16 years of age." 18 Pa.C.S. § 9718(a)(1). Subsection (a)(2) does the same relative to victims less than thirteen years of age. See id. § 9718(a)(2). Subsection (a)(3) lists crimes subject to mandatory minimum sentences upon conviction without reference to a victim's age or any other circumstance. See id. § 9718(a)(3).

3 This Court has previously referenced the following comments offered by the United States Court of Appeals for the Seventh Circuit:

Judicial opinions are frequently drafted in haste, with imperfect foresight, and without due regard for the possibility that words or phrases or sentences may be taken out of context and treated as doctrines. We shouldn't like this done to our opinions and are therefore reluctant to do it to the opinions of other courts. No court, even a federal court in a diversity suit, is obliged to treat a dictum of another court (or, for that matter, its own dicta) as binding precedent.

Maloney v. Valley Med. Facilities, Inc. , 603 Pa. 399 , 418, 984 A.2d 478 , 490 (2009) (quoting Northwestern Nat'l Ins. Co. v. Maggio , 976 F.2d 320 , 323 (7th Cir. 1992) ).

4 According to the concurrences authored by Justices Todd and Dougherty, my acknowledgement that Wolfe was imprecise and overbroad relative to subsection (a)(3) somehow undermines Wolfe's substantive analysis directed to subsection (a)(1). I reiterate, however, that Wolfe turned on the discrete interplay between subsection (a)(1)'s delineation of an aggravating fact and subsection (c)'s specifications that such fact "shall not be an element of the crime" and "shall be determined at sentencing," 42 Pa.C.S. § 9718(c). See Wolfe , 636 Pa. at 52, 140 A.3d at 660-61 . Although the concurrences rest on the proposition that these legislative commands can be ignored by the judiciary, that position was rejected on developed reasoning in Wolfe . See id. at 52-54 & n.5, 140 A.3d at 660-61 & n.5.

Responding to the concurrences' criticism that I have failed to adequately distinguish subsection (a)(3) from subsection (a)(1), I can only say, once again, that subsection (a)(3) does not delineate any aggravating facts such as are required, under subsection (c), to be determined by a sentencing judge. Accordingly, although Wolfe's substantive analysis applies to subsection (a)(1) as much today as at the time the decision was rendered, the reasoning does not extend to subsection (a)(3).

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Concurrence Opinion

JUSTICE TODD, Concurring

This is the third in a series of recent decisions by our Court interpreting the contours of a defendant's Sixth Amendment right, pursuant to Alleyne , ¹ to have a jury find beyond a reasonable doubt any fact that increases his or her mandatory minimum sentence. Here, the fact of a conviction, which triggered the mandatory minimum sentence under 42 Pa.C.S. § 9718(a)(3), was found by a jury beyond a reasonable doubt. That being the case, Appellee's Sixth Amendment rights were not violated. Therefore, I join the ultimate conclusion of the Opinion Announcing the Judgment of the Court ("OAJC") that Appellee is not entitled to relief. However, like Justice Dougherty, whose concurrence I join in full, I cannot accept the OAJC's attempt to distinguish our Court's prior decision in Wolfe . ² Indeed, in my view, the OAJC's flawed premise, that there is no "aggravating fact" in this case, OAJC at 20-21, creates a false distinction with Wolfe . The "fact" of the underlying conviction is the trigger for the mandatory minimum sentence, no different than the "fact" of the element of the underlying conviction in Wolfe was the trigger for the mandatory minimum sentence in that case. In essence, to reach its result, the OAJC advances my dissenting approach in Wolfe , which was joined by Justice Dougherty, an analysis a majority of this Court therein rejected. As a result, in my view, like that of Justice Dougherty, the OAJC should not give continued life to our erroneous decision in Wolfe , but should overrule it. Thus, for the reasons set forth below, I respectfully concur only in the result.

By way of background, in its 2013 decision in Alleyne , the United States Supreme Court addressed the question of whether, under the Sixth Amendment, a conviction for using or carrying a firearm in relation to a crime of violence, which carried a mandatory minimum five-year sentence, and which was increased to a seven-year mandatory minimum sentence if a firearm was "brandished" when committing the crime, required a jury, rather than a judge, to find the fact of brandishing. Building upon its prior decision in Apprendi v. New Jersey , 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), ³ the high Court determined that a mandatory minimum sentence, like a mandatory maximum sentence, increases the penalty for a crime, and any fact that increases the penalty for a crime is an element that must be found by the jury; therefore, any fact that increases such a sentence is an element of a new aggravated offense, that must be submitted to the jury. Moreover, as an element of the offense, the factual predicate must be specifically alleged in the charging document, and the defendant has the right to have that fact determined by a jury beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-61 .

Our Court first grappled with the Sixth Amendment as interpreted by Alleyne two years ago in Commonwealth v. Hopkins , 632 Pa. 36 , 117 A.3d 247 (2015). In Hopkins , we considered the constitutionality of a sentence imposed upon a defendant for a conviction of delivery or possession with intent to deliver a controlled substance, with a mandatory minimum to be applied when that offense was committed by a defendant who was over 18 years of age, and within 1,000 feet of, inter alia , a school. 18 Pa.C.S. § 6317(a). ⁴ Defendant Kyle Hopkins urged that his mandatory minimum sentence under Section 6317 violated Alleyne as it was based upon facts-that the offender was over 18 years of age, and the proximity of the drug transaction to a school-that were not found by a jury, but rather by a judge pursuant to the "proof-at-sentencing" provisions in Section 6317(b). The Commonwealth, for its part, while conceding some sections of the sentencing statute were unconstitutional in light of Alleyne , nevertheless argued that those provisions were severable, and, thus, that the sentencing statute could still be enforced without them.

Our Court reviewed Section 6317 and considered various provisions which, we found, were indeed unconstitutional after Alleyne . We detailed that, in particular, the proof-at-sentencing provisions in Section 6317(b) were in conflict with Alleyne , highlighting (1) that it was the sentencing court, rather than a jury, that rendered a factual determination regarding the age of the offender and the proximity of the drug transaction to the school; (2) that the legislature intended that mandatory minimum provisions were not to constitute an element of the crime; (3) that notice of the application of the mandatory minimum sentence was not required prior to conviction; (4) that the relevant fact finding required only a preponderance of the evidence; and (5) that the Commonwealth's right to appeal the fact finding determination raised double jeopardy concerns. Thus, we concluded that the sentencing provisions were unconstitutional under Alleyne .

We then continued to the more difficult question of whether the statute could survive without these offensive provisions. We explained that, in determining the severability of a statute, the primary focus was on the legislative intent, and whether the statute, without the infirm provisions, could still function consistent with that intent. Further, we determined that the non-infirm provisions, standing alone, were incomplete and incapable of being carried out consistent with the intent of the General Assembly, especially the legislature's expression that the mandatory minimum sentencing triggers were not to be considered elements of a crime and that it did not intend Section 6317 to constitute a new aggravated offense. As our Court concluded that the statute could not survive without the invalid portions, we struck Section 6317 as violative of the Sixth Amendment and Alleyne .

One year after our decision in Hopkins , our Court again explored the contours of a defendant's Sixth Amendment rights in Wolfe . In Wolfe , the Court was faced with another mandatory minimum sentence, containing the same proof-at-sentencing provisions. ⁵ However, in Wolfe , the sentence was not based upon a fact divorced from the underlying conviction; instead, the triggering fact was an element of the underlying crime. Specifically, Matthew Wolfe was convicted of involuntary deviate sexual intercourse ("IDSI") where the victim was less than 16 years of age. 18 Pa.C.S. § 3123(a)(7). Section 9718(a)(1) of the Sentencing Code, similar to Section 6317(a) at issue in Hopkins , requires imposition of a mandatory minimum sentence for a variety of crimes where the victims are less than 16 years of age, including IDSI crimes. 42 Pa.C.S. § 9718(a)(1). Therefore, given this overlap in the age requirement in the offense as well as the mandatory sentencing trigger, the fact that triggered the mandatory minimum sentence was also the fact that served as the basis of the underlying conviction. Thus, this fact was (1) stated in the information; (2) an element of the offense; (3) found by a jury; and (4) found beyond a reasonable doubt. Accordingly, Wolfe enjoyed his Sixth Amendment right to a jury determination of this fact which served as the trigger for the mandatory minimum sentence, and all of the other requirements of Alleyne were satisfied. Nevertheless, in a 4-2 decision, the Wolfe majority found the entirety of Section 9718 to be unconstitutional.

Specifically, the Wolfe majority, instead of focusing on whether there was a constitutional violation, began with an examination of the sentencing statute and its similarities to the sentencing statute at issue in Hopkins . It initially set forth its premise that Section 9718"plainly and explicitly require[s] judicial fact-finding in its subsection (c)." Wolfe , 140 A.3d at 660-61 (citing 42 Pa.C.S. § 9718(c) ("The applicability of this section shall be determined at sentencing ... by a preponderance of the evidence.") ). The majority continued that "subsection (c) is integral to the statute," rejecting the Commonwealth's assertion that subsection 9718(c) can be deemed to be "moot, dormant, or irrelevant-or can be otherwise disregarded or overlooked." Wolfe , 140 A.3d at 661 . As such, the majority explained that the remainder of the sentencing statute could not be severed from its infirm proof-at-sentencing provisions. Thus, the core of the majority's analysis was that a mandatory minimum sentence implemented by proof-at-sentencing provisions, such as those found in Section 9718(c), was unconstitutional in its entirety because it was incapable of severance. While acknowledging the anomaly that the age of the victim was, in fact, an element of the underlying crime, and thus found by the jury, the majority nevertheless offered that the mandatory minimum statute must be regarded as creating a "distinct and aggravated crime," id. ( quoting Alleyne , 133 S.Ct. at 2163 ), such that judicial fact finding is nonetheless required: "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 ." Wolfe , 140 A.3d at 661 .

Therefore, in Wolfe , although a jury determined beyond a reasonable doubt that the victim was under the age of 16, the majority explained that, because the sentencing court was also required to make that redundant determination at sentencing, imposition of the mandatory minimum sentence violated the Sixth Amendment. Indeed, the majority emphasized its broad holding stating that, "[b]ecause Alleyne invalidates material requirements of this statute, and because those provisions are non-severable per Hopkins , the statute simply cannot be enforced by the judiciary in any respect ," id. at 662 n.6 (emphasis added), and ultimately concluding that " Section 9718 is irremediably unconstitutional on its face, non-severable, and void," id. at 663 .

In my dissent, joined by Justice Dougherty, I pursued a distinct analytical tack. Wolfe , 140 A.3d at 664 (Todd, J., dissenting). Rather than starting with the sentencing statute, the dissenters first asked whether Wolfe's constitutional rights had been violated. In that regard, the dissenters observed that the fact which triggered the mandatory minimum sentence was not an extra or independent fact, as in Hopkins , but, rather, was already an element of the underlying criminal offense, listed in the information, and found by a jury. For this foundational reason, it was self-evident, in our view, that Alleyne was not implicated, and that Wolfe's constitutional rights were not violated. Furthermore, the dissenters disputed the Wolfe majority's assertion that, even though a jury found "in the abstract" the charged element beyond a reasonable doubt, id. at 662 , nevertheless, a sentencing judge was also required to find the same fact by a lesser burden of proof, thus, violating Wolfe's Sixth Amendment rights. The dissenters observed that there was no support in Alleyne for the majority's ill-founded theory that the Sixth Amendment could be violated simply because a sentencing judge redundantly found a fact already found by the jury.

Finally, the dissenters offered that, even if Section 9718 were infirm, the harmless error doctrine should apply, as embraced by numerous state and federal courts. This, according to the dissenters, was especially appropriate, as the jury actually found beyond a reasonable doubt the fact triggering the mandatory minimum sentence. The majority, however, rejected the dissenters' proffer, admonishing that "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." Id. at 662 n.6. In short, in the view of the dissenters, the majority erred by finding the mandatory minimum statute to be infirm without first identifying the foundational constitutional violation to which Appellee was subjected.

In the case sub judice , the final installment of this trilogy, the mandatory minimum sentence at issue-imposed pursuant to the very same statute that was the focus in Wolfe -was triggered by a fact already found by the jury, the underlying conviction itself . See 42 Pa.C.S. § 9718(a)(3). Moreover, the same proof-at-sentencing provisions that served as the foundation for the majority's rejection of relief in Wolfe , Section 9718(c), are again at issue here. Yet, despite these seemingly dispositive similarities, the OAJC-rather than acting consistent with Wolfe and finding that, because the proof-at-sentencing provisions are void as found in Wolfe , and, thus, that Appellee is entitled to relief-curiously attempts to distinguish Wolfe . In doing so, the OAJC, sub silento , adopts the dissenters' approach in Wolfe .

First, it is noteworthy that the OAJC does not begin its analysis with an assessment of the viability of the proof-at-sentencing provisions, as the majority did in Wolfe . Rather, like the dissenters in Wolfe , the OAJC first, and appropriately, considers whether Appellee's Sixth Amendment rights were violated.

Next, the foundation to the OAJC's analysis is essentially that the underlying conviction that triggers the mandatory minimum is not an Alleyne "fact," whereas, by contrast, the age-of-victim element at issue in Wolfe was an Alleyne fact. See OAJC at 20 (finding "subsection (a)(3) requires no proof of any predicate or aggravating facts."). This foundation is faulty. There is no apparent difference between an underlying conviction serving as a trigger for a mandatory minimum sentence, and the subset thereof of an element of the underlying crime serving as a trigger. While the Supreme Court has not provided a definition of what constitutes an Alleyne fact, the clear import of its decisions in this area is that any trigger for a mandatory minimum sentence must be found by a jury. Indisputably, both the underlying conviction here, and the underlying element in Wolfe ( i.e. , the age of the victim), triggering Section 9718's mandatory minimum sentences, were found by a jury beyond a reasonable doubt, thereby satisfying Alleyne . Additionally, the OAJC's assertion that the underlying conviction at issue in this matter "is itself a contemporaneous jury determination, and the concern of Alleyne is with sentencing enhancements tied to facts to be determined by a judge at sentencing," OAJC at 21, is equally applicable to the age-of-victim element which the jury found in Wolfe . Yet, somehow, a constitutional violation was found in Wolfe , but, no violation is found in the OAJC. It is in my view, entirely illogical for the OAJC to come to the result it reaches today, but keep Wolfe intact.

Further, the OAJC jettisons the primary rationale used in Wolfe -that Section 9718(c) requires judicial fact finding in violation of Alleyne -by now asserting that Section 9718(c)'s proof-at-sentencing provisions are mere redundancies, again adopting the logic of the dissenters in Wolfe . Specifically, the Wolfe majority explicitly recognized the anomaly that the age-of-victim determination was an element of the underlying offense; yet, it found that that fact did not alter its "core assessment" that Section 9718 created a "distinct and aggravated crime" and 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." Wolfe , 140 A.3d at 661 .

The Wolfe dissenters explicitly challenged this concern regarding redundant fact finding, noting that "the [ Wolfe ] majority cites nothing to suggest the Alleyne Court was concerned about a judge making factual findings redundant to those of the jury." Wolfe , 140 A.3d at 669 (Todd, J., dissenting); id. at 670 (rejecting the majority's conclusion that Wolfe's "Sixth Amendment jury trial rights were nonetheless impaired because a sentencing judge redundantly found this same fact by a lesser burden of proof"). Nonetheless, the Wolfe majority found the statutory framework unenforceable "in any respect". Wolfe , 140 A.3d at 662 n.6. Yet, herein, the OAJC dismisses the same proof-at-sentencing provisions as merely "awkward" or "superfluous," and contends that "no proof of any facts is required at sentencing." OAJC at 21. The OAJC thus transforms the "core" defects in Wolfe into mere gratuities today.

Finally, the OAJC's severance analysis is irreconcilable with that employed in Wolfe . The OAJC individually dissects the various subsections of Section 9718-(a)(1), (a)(2), and (a)(3) -to see if they are inseparably connected, and ultimately able to survive constitutional infirmity. This approach, however, is in direct conflict with Wolfe , which, as noted above, looked at the entire statute and struck it in its entirety. Wolfe , 140 A.3d at 663 (finding " Section 9718 is irremediably unconstitutional on its face, non-severable, and void"). Indeed, the dissenters in Wolfe offered the very same individualized approach taken by the OAJC today, distinguishing the other criminal offenses referred to in Section 9718, and calling out the very subsection we address today:

While the triggering fact for the mandatory minimum sentence under Section 9718 is, in this case, the same fact that is an element of the underlying criminal offense at Section 3123(a)(7), the vast majority of other criminal offenses referred to in Section 9718 follow the factual situation which gave rise to Alleyne, in that the fact that triggers the mandatory minimum sentence is independent of the facts constituting the elements of the underlying criminal offense. Indeed, of the 21 criminal offenses referenced in Section 9718(a)(1) and (2), only three, 18 Pa.C.S. § 3123(a)(7), (b) and (c), subsume the same factual predicate as that required for imposition of the mandatory minimum sentence. Additionally, I note that the convictions themselves of four offenses, 18 Pa.C.S. § 121(c) and (d), 18 Pa.C.S. § 3125(a)(7), and 18 Pa.C.S. § 3125(b), serve as the necessary trigger for the mandatory minimum sentences provided in Section 9718(a)(3). Respecting this last situation, the issue of the validity under Alleyne of a mandatory minimum sentence imposed simply on the basis of the conviction of an underlying crime is raised in a petition for allowance of appeal that is currently before our Court in Commonwealth v. Resto, 774 MAL 2015.

Wolfe , 140 A.3d at 665 n.3 (Todd, J., dissenting).

Yet, the majority in Wolfe firmly rejected this approach on the basis of its conclusion that Section 9718(c)'s overarching requirement of judicial fact finding was unconstitutional:

[W]e 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.

Wolfe , 140 A.3d at 661 n.5 (emphasis added); see also id. at 662 n.6 (offering, in rejecting the dissenters' harmless error analysis, that "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." (emphasis added) ). The "small segments" the Court dismissed as an apparent irrelevancy in Wolfe are the sections the OAJC strives to preserve today.

Plainly, Wolfe's rationale and the OAJC's approach sub judice cannot both stand. Wolfe's emphatic unconditional language directly contradicts the OAJC's assertion that "some passages of Wolfe are written in overbroad terms to the degree that they disapprove Section 9718 as a whole," its claim that Wolfe used "loose language," and its urging that the decision "is to be read against its facts." OAJC at 22-23. On the contrary, Wolfe's all-encompassing approach was unmistakable. Perhaps acknowledging the same, the OAJC continues that, "even if the relevant references to Section 9718 as a whole were not dictum , the doctrine of stare decisis does not apply to pronouncements that are not adequately supported in reason." OAJC at 22. I wholeheartedly agree with this sentiment, but the OAJC's concession is too narrow. Its post hoc rewrite of Wolfe is unsupportable-we should either continue to follow Wolfe's misguided construct and grant relief, or overrule that decision in toto . Given that there is no constitutional violation to correct here (nor was there in Wolfe ), the law commands the latter. Indeed, it is seldom that we are so rapidly confronted with the error of a decision. But when we are, we should acknowledge it, and not work around it, thereby perpetuating our mistake.

For all of these reasons, I concur only in the result reached by the OAJC.

1 In relevant part, Section 9712.1 provides:

(a) Mandatory sentence.- Any person who is convicted of section 13(a)(30) of [35 P.S. § 780-113 ], known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

...

(c) Proof at sentencing.- Provisions of this section shall not be an element of the crime, and notice thereof 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 sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712.1

2 Section 1925 provides:

§ 1925. Constitutional construction of statutes

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925.

3 Wolfe came to this Court following the Commonwealth's appeal from the published Superior Court decision in Commonwealth v. Wolfe , 106 A.3d 800 (Pa. Super. 2014). Writing for the panel of the Superior Court, I concluded Wolfe was entitled to resentencing based on the decision in Newman . I made clear that despite my disagreement with Newman's severability analysis, "it is binding on the [Superior Court] and must be applied in a principled manner in all future cases unless reversed by the Supreme Court." Wolfe , 106 A.2d at 803 n. 4.

4 As noted throughout, since the courts began grappling with Alleyne -premised challenges, I have been of the view that as long as the factfinder decides the predicate fact beyond a reasonable doubt, a sentencing court may impose a mandatory minimum sentence. However, I have equally recognized the importance of applying legal precedent in a principled and even manner. In my judgment, because the bench and the bar rely on this Court to provide clear guidance on legal issues, we should strive to adhere to the doctrine of stare decisis. See Stilp v. Commonwealth , 588 Pa. 539 , 905 A.2d 918 , 966-67 (2006).

5 Compare 42 Pa.C.S. § 9718(c) with 18 Pa.C.S. § 6317(b).

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Concurrence Opinion

JUSTICE DOUGHERTY, Concurring

I agree with the Opinion Announcing the Judgment of the Court ("OAJC") that 42 Pa.C.S. § 9718(a)(3) ("A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment ...") "simply cannot run afoul of a constitutional rule disapproving judicial fact-finding related to 'facts that increase mandatory minimum sentences.' " OAJC, Op. at 21, quoting Alleyne v. United States , 570 U.S. 99 , 116, 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013). The rule established in Alleyne is not violated when judicial fact-finding is not necessary prior to imposing a mandatory minimum sentence, regardless of whether the statutory provision at issue is accompanied by a "proof at sentencing" provision like the one found at 42 Pa.C.S. § 9718(c). See OAJC op. at 21 . I therefore concur in the result reached by the OAJC.

Respectfully, however, I cannot agree with the OAJC's reasoning distinguishing the Alleyne analyses of Section 9718(a)(3), at issue in this case, and Section 9718(a)(1), at issue in Commonwealth v. Wolfe , 636 Pa. 37 , 140 A.3d 651 (2016). In my view, the OAJC does not sufficiently cabin the holding in Wolfe and I maintain my position Wolfe was wrongly decided. See, e.g ., Wolfe , 140 A.3d at 672 (Dougherty, J., dissenting) ("I have difficulty upsetting the judgment below without considering the actual trial and litigation of the matter ... this particular defendant was afforded all the United States Constitution could be said to mandate at his trial").

Although Section 9718(a)(1) may violate Alleyne as applied to certain defendants, "[t]he focus for purposes of Alleyne is not on the sentencing statute, but, rather, on whether a defendant has been denied his or her right to a trial by jury on the facts triggering a sentence." Wolfe , 140 A.3d at 669 (Todd, J., dissenting). Today we correctly hold appellee's right to a jury trial was satisfied because judicial fact-finding was unnecessary, but the same was true in Wolfe . Wolfe was convicted of involuntary deviate sexual intercourse under 18 Pa.C.S. § 3123(a)(7), an element of which is that the complainant is under sixteen years of age. Wolfe was then sentenced under Section 9718(a)(1) which provides for a mandatory minimum sentence of not less than ten years for those convicted under 18 Pa.C.S. § 3123 when the victim is under sixteen years of age. This "additional fact" of the age of the victim was found beyond a reasonable doubt by the jury in Wolfe's case and thus judicial fact-finding was unnecessary regardless of the "proof at sentencing" provision found at Section 9718(c). Pursuant to the OAJC's analysis of Section 9718(a)(3) in this case, an analysis in which I join, the Alleyne rule could not have been violated in Wolfe , and in my view, that decision should be overturned.

Justice Todd joins Justice Dougherty's concurring opinion

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Dissenting Opinion

JUSTICE BAER, Dissenting

I join that portion of Justice Mundy's Dissenting Opinion which holds that this Court's decision in Commonwealth v. Wolfe , 636 Pa. 37 , 140 A.3d 651 (2016), requires a conclusion that 42 Pa.C.S. § 9718(a)(3) cannot withstand constitutional scrutiny. See Wolfe , 140 A.3d at 663 (" Section 9718 is irremediably unconstitutional on its face, non-severable, and void.").

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Dissenting Opinion

JUSTICE MUNDY, Dissenting

Resto was sentenced pursuant to 42 Pa.C.S. § 9718(a)(3), which imposes a mandatory minimum sentence for persons convicted of certain offenses including 18 Pa.C.S. § 3121(c), the offense which Resto was found guilty of by a jury. Section 9718(c) of the sentencing statute provides as follows:

(c) Proof at sentencing.- the provisions of this section shall not be an element of the crime and notice of the provisions 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 sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9718(c). This or similar language has been the subject of scrutiny in this Commonwealth since the decision in Alleyne v. United States , 570 U.S. 99 , 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013). I have maintained my personal view that statutes with the above language may be applied in certain situations, notwithstanding the language that deems sentencing enhancing facts as non-elements and directs the sentencing courts to find these non-elemental facts by a preponderance of the evidence, without running afoul of Alleyne . However, as a matter of adhering to this Court's precedent regarding mandatory minimum sentencing schemes in Pennsylvania, I would conclude Resto's judgment of sentence should be vacated and remanded for resentencing. Accordingly, I dissent.

In Alleyne , the United States Supreme Court held that pursuant to the rights afforded under the Sixth Amendment to the United States Constitution, any fact which by law increases the mandatory minimum sentence for a crime is an element of the offense and therefore must be, inter alia, submitted to a jury and found beyond a reasonable doubt. Simply put, sentencing statutes may no longer tie the imposition of a mandatory minimum sentence to a fact found by a sentencing court by a preponderance of the evidence. Following the Alleyne decision, the courts of this Commonwealth were tasked with how to reconcile the new rule with a number of similarly-patterned Pennsylvania sentencing statutes that direct the sentencing court to impose a mandatory minimum sentence if it finds an operative fact by a preponderance of the evidence at sentencing. See, e.g. , 42 Pa.C.S. § 9713.

For example, in Commonwealth v. Matteson , 96 A.3d 1064 (Pa. Super. 2014), the Superior Court considered the post- Alleyne constitutional viability of 42 Pa.C.S. § 9718(a)(3), the sentencing statute at issue in this case. The court concluded the mandatory minimum sentence could withstand an Alleyne challenge because "the jury specifically found the element required to impose the mandatory minimum sentence." Matteson , 96 A.3d at 1066 . Implicit in the panel's reasoning in Matteson is the notion that the statute could be applied without regard to the procedure the Legislature crafted that required the essential fact be found at sentencing, by a preponderance of the evidence, and defining the fact as a sentencing factor rather than as an element of the underlying offense. See also Commonwealth v. Tobin , 89 A.3d 663 , 665 n.1 (Pa. Super. 2014) (concluding Alleyne was not violated by the imposition of a mandatory minimum based on the amount of marijuana found on a drug dealer pursuant to 18 Pa.C.S. § 7508(a)(1)(i) where defendant pleaded guilty and admitted to possessing twenty marijuana plants). Seemingly, then, the relevant inquiry appeared to center on whether there was a violation of the Alleyne rule as applied to each defendant, i.e., whether it was necessary for the sentencing court to find the operative fact or whether it had been conceded by the defendant or otherwise found by the jury and not specifically on the statutorily proscribed procedure at sentencing. However, in Commonwealth v. Newman , 99 A.3d 86 (Pa. Super 2014) (en banc), the Superior Court squarely addressed whether the legislatively enacted sentencing procedure at 42 Pa.C.S. § 9712.1 could be severed from the rest of the statute which articulated the necessary fact to impose the mandatory minimum sentence. ¹ The court concluded, "[p]lainly, Section 9712.1 can no longer pass constitutional muster" because it requires the sentencing court to increase the minimum sentence if it finds that a defendant was dealing drugs while possessing or in close proximity to a firearm. Id. at 98 . It continued that, under the mandates of Alleyne , the fact increasing the minimum sentence, i.e., the possession of a firearm, must be included in the indictment and found by a jury. Id. In rejecting the Commonwealth's position that the constitutionally offensive subsection could be excised and the remainder of the statute applied if a sentencing jury is empaneled to find the extra-judicial fact, the Newman Court concluded that such action would be usurping the role of the Legislature: "[w]e find 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." Id. at 102 .

As a member of the en banc panel in Newman , I agreed that Newman's sentence was unconstitutional. However, I disagreed with the majority's holding that the entire sentencing statute was rendered unconstitutional by Alleyne . See id. at 104 (Mundy, J., concurring). I expressed my view that voiding the statute as a whole was contrary to the Statutory Construction Act, 1 Pa.C.S. § 1925. ² Specifically, I differed with the majority's reasoning that there was no constitutional way to apply the mandatory minimum sentence pursuant Section 9712.1 once the "proof at sentencing provision" was stricken:

Although [ Section 9712.1 creates] a new aggravated offense, it does not follow that there is "no mechanism" for its application in future cases. To the contrary, Alleyne has already specified the mechanism for such an application. The jury should be instructed on the elements of the core crime, in this case [possession with intent to deliver a controlled substance], and the aggravated offense, and the factfinder is free to find a defendant guilty or not guilty of the core and/or the aggravated offense beyond a reasonable doubt as required by the Sixth Amendment. Thereafter, the trial court shall sentence the defendant consistent with the jury's verdict, as required by the Sixth Amendment. ... Section 9712.1(a) gives the elements of the aggravated offense and Alleyne and pre-existing procedure provides the method of implementation, a jury verdict with proof beyond a reasonable doubt. Therefore, no special mechanism is required.

Id. at 105 .

In Commonwealth v. Hopkins , 632 Pa. 36 , 117 A.3d 247 (2015), this Court provided further guidance on the issue of the severability of a constitutionally infirm, but legislatively mandated, sentencing procedure, where the sentencing judge is assigned the role of factfinder at sentencing. Our analysis led us to decidedly endorse the severance rationale employed in Newman . Hopkins was convicted of possession with intent to deliver and sentenced to a mandatory minimum sentence of two years' imprisonment pursuant to 42 Pa.C.S. § 6317(a), based on a judicial finding that the drug offense occurred within 1,000 feet of a school. As with other sentencing statutes rendered void under Alleyne and Newman , Section 6317 provided "[t]he provisions of this section shall not be an element of the crime.... The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable." 18 Pa.C.S. § 6317(b).

Recognizing that the Statutory Construction Act creates a presumption that statutes are severable and shall be enforced unless the valid provisions of the statute are inseparably connected with and dependent upon the void provisions, this Court examined each subsection of the statute to ascertain which provisions were void and whether the mandatory minimum could be applied without consideration of the portions that ran afoul of Alleyne . This Court held that the provisions specifying the proximity of the drug transaction to the school and the age of the defendant did not offend Alleyne ; however, the remainder of the statute, given the Legislature's clear intent that it was a sentencing statute, was invalid and could not be severed.

In sum, as detailed above, we find that numerous provisions of Section 6317 are unconstitutional in light of the United States Supreme Court decision in Alleyne . After Alleyne , these aspects of the statute-that the provisions are declared not to be elements of the offense, that notice is not required prior to conviction, that factfinding is conducted at sentencing, that the sentencing court performs factfinding, that the applicable standard is preponderance of the evidence, and that the Commonwealth has the right to appeal where the imposed sentence was found to be in violation of the statute-are now infirm. ...

[T]he General Assembly has unambiguously expressed its intent regarding the nature of this mandatory minimum sentencing statute: it is a sentencing statute.... Yet, virtually every provision of Section 6317 enacted by the legislature to effectuate this intent runs afoul of the notice, jury trial, burden of proof, and post-trial rights of the accused after Alleyne . These provisions are elaborate, express, and detailed, and are no mere add ons, but, rather, are prominent and central features of the statute. In contemplating the significant rights that come with the United States Supreme Court's marked transformation of sentencing factors into elements of a new aggravated offense, and the resulting evisceration of essential aspects of Section 6317, we find that the unoffending provisions of this statute-the proximity and age requirements-standing alone, are incomplete and incapable of being executed in accordance with legislative intent. 1 Pa.C.S. § 1925. By operation of Alleyne , Section 6317 has been stripped of all features that allow it to function as a sentencing statute.

Hopkins , 117 A.3d at 259-60 (footnote and some citations omitted; emphasis in original).

This Court again confronted the effect of Alleyne on a mandatory minimum sentencing statute in Commonwealth v. Wolfe , 636 Pa. 37 , 140 A.3d 651 (2016). ³ Wolfe was convicted of involuntary deviate sexual intercourse with a complainant who is less than 16 years of age, 18 Pa.C.S. § 3123(a)(7), and received a mandatory minimum sentence pursuant to Section 9718(a), which provides that "[a] person convicted of [ 18 Pa.C.S. § 3123 ] when the victim is less than 16 years of age shall be sentenced to" a mandatory term of not less than ten years. See 42 Pa.C.S. § 9718(a)(1) (emphasis added). This presented an incongruity not faced in Newman or Hopkins because, in each of these cases, the extra-judicial fact that the sentencing court was required to consider was not subsumed within the elements of the underlying offense. However, pursuant to Section 9718, despite subsection (c)'s directive that "provisions of this section shall not be an element of the crime" the requisite fact necessary to impose the mandatory minimum sentence, i.e., the age of the victim, was included as an element of the crime for which Wolfe was being sentenced. Compare 42 Pa.C.S. § 9718(a)(1) with 18 Pa.C.S. § 3123(a)(7). Accordingly, the Commonwealth posited, broadly, that there was no violation of Alleyne in the first instance because Section 9718(a) standing alone, could operate to impose the sentence without consideration of the other violative provisions based on the triggering fact being an element of the offense. We disagreed.

[W]e reaffirm our position in Hopkins in all material respects and conclude that it applies here. [W]e 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, 117 A.3d at 259-262 (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, based on their application in Hopkins , it is the latter outcome which must prevail.

Wolfe , 140 A.3d at 660-61 . Moreover, we noted that a sentence based on a statute found to be non-severable and unconstitutional is void. Id. at 661 . We explained the fact that the jury at Wolfe's trial found the victim to be less than 16 years of age did not alter the procedure in place to impose the mandatory minimum sentence: "although the jury at [Wolfe's] trial plainly decided that the victim was under 16 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 Alleyne ." Id. The Court held that " Section 9718 is irremediably unconstitutional on its face, non-severable, and void." Id. at 663 .

This Court granted review in this matter to revisit the constitutionality of Section 9718. In my view, the answer has been foreshadowed by the Hopkins decision and unequivocally answered by Wolfe . Notwithstanding the facial absurdity of deeming a conviction for which one is being sentenced as an extra-judicial fact, this Court has declared " Section 9718 does plainly and explicitly require judicial fact-finding in its subsection (c).... Moreover, since subsection (c) is integral to the statute, Section 9718(a) does not stand alone ." Id. at 660-61 (emphasis added).

The Opinion Announcing the Judgment of the Court ("OAJC") cannot be reconciled with the jurisprudence established in Hopkins and Wolfe . Those decisions ground their analyses in principles of severance, highlighting, for instance, the legislature's apparent intent in crafting the schemes and the prominence of the relevant subsection delineating the proof-at-sentencing procedure. See Hopkins , 117 A.2d at 259 ; Wolfe , 140 A.3d at 660-61 . Because of the Court's narrow focus on the severability of the offending subsection, the Court has somewhat divorced itself from the broader and foundational question of whether the requirements of Alleyne were met and instead held as a matter of Pennsylvania's severability jurisprudence that the statutes were void. Cf. Wolfe , 140 A.3d 666 -67 (Todd, J., dissenting) (disagreeing that Wolfe's sentence could be unconstitutional where the operative fact was an element of the underlying offense because he "received the benefit of every constitutional right recognized by the high court in Alleyne .").

Writing on a clean slate, I would hold Resto is not entitled to relief, just as I have maintained that sentencing statutes are severable and the relevant inquiry is whether the mandates of Alleyne have been satisfied. See Newman , 99 A.3d at 104-05 (Mundy, J., concurring); see also Commonwealth v. Fennell , 105 A.3d 13 , 18 n. 3 (Pa. Super. 2014) ; Commonwealth v. Cardwell , 105 A.3d 748 , 752 n. 2 (Pa. Super. 2014). However, the slate is not clean, and this Court has unambiguously held that there are no set of circumstances under which these sentencing statutes may be applied in this Commonwealth.

The OAJC posits that a conviction returned by a jury "is not the same as an aggravating fact." OAJC at 21. Further, that the conviction itself serves as "a contemporaneous jury determination" and therefore the Alleyne concern of facts determined at sentencing is not present. Id. It then concludes that the presumption of severability embodied in the Statutory Construction Act remains operative for this discrete subsection. Id. at 21. Respectfully, when read with Wolfe , I agree with my concurring colleagues that these points are distinctions without any meaningful difference. See Justice Dougherty's Concurring Opinion at 30-31; Justice Todd's Concurring Opinion at 23; 27-30.

Directly addressing the recent decision from this Court in Wolfe , which declared Section 9718 void on its face, the OAJC suggests it employed "loose language" without fully considering the operation of Section 9718(a)(3) and further implying that language not specifically tailored to Section 9718(a)(1) should not be closely considered because judicial-drafting is frequently done without consideration of its consequences. Id. at 22-23; see id. at 22 n. 3. The suggestion that the specific and clear holding of Wolfe was a result of some failure of this Court to foresee how it may be applied in future cases is belied by the decision itself. Indeed, from a dissenting posture, Justice Todd specifically noted that convictions themselves serve as the predicate fact for operation of the mandatory minimum. Wolfe , 636 Pa. 37 , 140 A.3d 651 , 665 n. 3 (Todd, J., dissenting). The Court nonetheless determined that severability principles precluded the imposition of any mandatory minimum sentence under Section 9718. Plainly, the same result is compelled here.

The Wolfe Court, following the decision in Hopkins , held that the procedural mandates of Section 9718 are so interwoven with the substantive provisions as to be non-severable and facially unconstitutional. Wolfe , 140 A.3d at 663. Furthermore, this Court recently acknowledged that any mandatory sentencing procedures fashioned in this manner are no longer valid in Pennsylvania.

As that sentencing provision [ 42 Pa.C.S. § 9712.1 ] has been rendered unconstitutional on its face by Hopkins and Wolfe , it is as if that statutory authority never existed. See Wolfe , 140 A.3d at 661 (quoting 16 C.J.S. Constitutional Law § 265 (2016) ("[A]n unconstitutional, non-severable statute is 'not law, has no existence, is a nullity, or has no force or effect or is inoperative.' ").

Commonwealth v. Barnes , 637 Pa. 493 , 151 A.3d 121 , 127 (2016).

In my judgment, applying the state law principles of severance to Section 9718 as this Court has in Hopkins and Wolfe , there is no statutory authority to impose the sentence. ⁴ Thus, I would conclude the sentence is illegal and was properly vacated. See Commonwealth v. Leverette , 911 A.2d 998 , 1001-02 (Pa. Super. 2006). Accordingly, I dissent.

1 Alleyne v. United States , 570 U.S. 99 , 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013).

2 Commonwealth v. Wolfe , 636 Pa. 37 , 140 A.3d 651 (2016).

3 In Apprendi , the high Court determined that any fact that increases a defendant's sentence "beyond the prescribed statutory maximum" is an element to be found by the jury, regardless of the legislature's designation. 530 U.S. at 490 , 120 S.Ct. 2348 .

4 Section 6317 provides:

(a) General rule.- A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:

(1) subject to this section; and

(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.

If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).

(b) Proof at sentencing.- The provisions of this section shall not be an element 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 sentencing. 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 determine by a preponderance of the evidence if this section is applicable.

(c) Authority of court in sentencing.- There shall be no authority for a court to impose on a defendant to which this section is applicable a lesser sentence than provided for in subsection (a), to place the defendant on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

(d) Appeal by Commonwealth.- If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

18 Pa.C.S. § 6317.

Case Details

Case Name: Commonwealth, Aplt. v. Resto, A.

Court Name: Supreme Court of Pennsylvania

Date Published: Feb 21, 2018

Citations: 179 A.3d 18; 86 MAP 2016

Docket Number: 86 MAP 2016

Court Abbreviation: Pa.