Commonwealth v. AponteCommonwealth v. Aponte
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- Zappala
Lead Opinion
We granted allowance of appeal to determine whether
After willfully absenting himself from trial, appellant was tried in absentia before a jury which convicted him of possession with intent to deliver a controlled substance (PWID), and conspiracy. A presentence report was ordered, but appellant remained a fugitive. The presentence investigator sent a letter to appellant’s mother, and gathered information “from the Court Deferred File (R.O.R. background information in that file), the prison computer information (background information is in there also), the Family Court File # 345614 which was generated as a result of one of [appellant’s] brother’s juvenile arrest [sic], and from the Probation file.” PreSentence Report, 6/13/01, at 1. The report also listed the Connecticut State Prison-Parole Records as a source of information. Id., at 3. The report noted appellant had three convictions: 1994 Felony Drugs in Connecticut; 1997 Felony Drugs in Philadelphia; and the present matter. Id., at 2.
Because this was appellant’s third drug offense, the sentencing court applied the sentencing enhancement in
Second or subsequent offense
(a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
Accordingly, the trial court sentenced appellant, in absentia, to 10-20 years imprisonment for possession with intent to deliver-twice the statutory maximum “otherwise authorized.” The court also imposed twice the statutory maximum sentence for appellant’s conspiracy conviction.
On appeal, the Superior Court affirmed the sentence. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the court concluded the Commonwealth need not have pled the prior convictions in the information, nor was it required to establish them beyond a reasonable doubt before a jury. However, the Superior Court vacated the enhanced sentence for conspiracy and remanded for resentencing, concluding
“[W]e begin our analysis by recognizing that there is a strong presumption in the law that legislative enactments do not violate the constitution. Moreover, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute.” Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 165 (1996) (citations omitted). As a matter of statutory construction, we presume “the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.”
Appellant first claims
The United States Supreme Court reversed, holding the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, as applied to the states through the Fourteenth Amendment, require:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.... “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established beyond a reasonable doubt.”
Apprendi, at 490, 120 S.Ct. 2348 (emphasis added) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)).
Prior to Apprendi, the Supreme Court first addressed the issue of what constitutes a “sentencing factor” in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan involved a challenge to Pennsylvania’s Mandatory Minimum Sentencing Act,
Over a decade after McMillan, the Supreme Court again faced the question of the distinction between a “sentencing factor” and an “element” in Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). AlmendarezTorres involved a federal statute authorizing an increase in the maximum sentence for an alien found in the United States after being deported, if the initial deportation was subsequent to a conviction for an aggravated felony.
One year later, the Supreme Court clarified the holding in Almendarez-Torres, noting, “Congress had never clearly made prior conviction an offense element where the offense conduct, in the absence of recidivism, was independently unlawful.” Jones v. United States, supra (federal carjacking statute,
Apprendi, decided one year after Jones, made clear that any fact which increases the maximum penalty must be submitted to a jury and proved beyond a reasonable doubt.4 However, the Apprendi Court was careful to delineate prior convictions as an exception to this requirement, for the following reasons:
Whereas recidivism “does not relate to the commission of the offense” itself, . . . New Jersey’s biased purpose inquiry goes precisely to what happened in the “commission of the offense.” Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which a defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof
Id., at 496, 120 S.Ct. 2348 (citation omitted) (emphasis added).
Two years after Apprendi, the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, a jury convicted the defendant of felony murder committed in the course of an armed robbery, but was deadlocked on whether he was guilty of premeditated murder; the facts at trial were insufficient. Thus, the defendant was eligible for the death penalty only if he was the actual killer or had been a major participant in the robbery which led to the killing. The state’s capital sentencing statute provided for the trial judge, sitting alone, to determine the existence of aggravating factors warranting imposition of the death penalty. See
Capital defendants, no less than non-capital defendants, we concluded, are entitled to a jury determination on any fact on which the legislature, conditions an increase in their maximum punishment.
* * *
If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.
Ring, at 2432 (emphasis added), 2439 (emphasis added) (citing Apprendi, at 482-83, 120 S.Ct. 2348).
Appellant argues Ring’s failure to mention Apprendi’s prior conviction exception evinces its intent to retract the exception, and that now, prior convictions are required to be proven beyond a reasonable doubt, as is any fact which increases the maximum sentence. We disagree with this fractured reading of Ring; the key issue in Ring was how to reconcile Apprendi with Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L.Ed.2d 511 (1990), which had held the aggravating factors in
Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres [], which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence.
Ring, at 597 n. 4.
Accordingly, we reject appellant’s argument that Apprendi’s prior conviction exception has been tacitly overruled.7
Our analysis does not end here, however, as appellant also contends
[T]he federal constitution establishes certain minimum levels which are equally applicable to the [analogous] state constitutional provision. However, each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution.
Id. (quoting Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 466 (1983)) (citation omitted).
Appellant claims Article I, §§ 6 and 9 of the Pennsylvania Constitution require the right to a jury trial in cases where recidivism results in an enhanced sentence because such right existed at common law. See
In support of this claim, appellant cites several decisions involving application of recidivist penalties, which held the fact of the prior conviction must be pled in the indictment, the defendant’s identity as the person previously convicted must be established, and the defendant must be afforded notice of the possibility of an increased sentence and the opportunity to be heard.9
Appellant also relies on Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702
[I]n each of these cases, the recidivist statute under which the defendant was sentenced provided for an increased maximum sentence or an “enlarged” sentence, and it was for this reason that the Courts concluded that prior convictions had to be alleged in the Information or Indictment. The Courts held that the increased maximum sentence, or change in the grade of offense, made a subsequent offense different in kind and character than a first offense.
Reagan, at 705 (emphasis added); see also Rauch, at *4 (imprisonment is not lawful consequence of conviction for unlawful sale of liquors; it is lawful consequence of second sale only after former conviction).
Although Pennsylvania courts, historically, have treated pri- or convictions as elements when those convictions increase the maximum penalty for an offense, appellant overlooks the rationale behind this characterization. The original understanding at common law regarding what constitutes an “element” was broader than that today, due to the fact that each crime, as defined by the legislature, had its own specific punishment; there was no separation of offenses and sentences. See U.S. v. Gray, 438 U.S. 41, 45-46, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (explaining that, in early days of Republic, when imprisonment had only recently emerged as alternative to death, confinement in public stocks, and whipping, period of incarceration was specifically prescribed by legislature; not until later did fixed system give way to individualized, flexible approach to sentencing, with discretion vested in sentencing court); see also Apprendi, at 499-518, 120 S.Ct. 2348 (Thomas, J., concurring) (detailing history of treatment of recidivism as element of offense). Rauch, one of the chief cases upon which appellant relies, was decided under such a scenario.
When the General Assembly passed the’ Crimes Code in 1972, however, common law crimes were abolished; the Code specifically provides no conduct constitutes a crime unless statutorily defined.
[NJothing in [§ 780-115(a) ] creates a new crime called “possession of a controlled substance with intent to deliver as a second or subsequent offense, ” nor does it add a new element to the statutory definition of the crime of possession of a controlled substance with intent to deliver. . . . Our statutory law defines only one offense pertaining to the possession of a controlled substance with the intent to deliver that substance:
Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, . . . or knowingly creating, delivering or possessingwith intent to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30) . When read in pari materia, clearly the language ofsections 780-113(a) (30) and 780-115(a) creates no new possessory offense requiring a previous conviction as a substantive element.
Griffin, at 15 (emphasis added). See also Commonwealth v. Soboleski, 421 Pa.Super. 311, 617 A.2d 1309, 1312 (1992) (prior conviction does not alter guilt or innocence of person charged; prior conviction is only relevant to determination of sentence following adjudication of guilt); Commonwealth v. Lark, 350 Pa.Super. 558, 504 A.2d 1291, 1297-98 (1986) (holding previous homicide conviction does not become element of murder merely because sentencing enhancement will apply based on previous conviction); Commonwealth v. Harvin, 346 Pa.Super. 575, 500 A.2d 98, 100 (1985) (prior offenses used in grading do not constitute substantive element of crime); Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36, 39 (1981) (noting, in retail theft case, had legislature intended to make grading of offense one of its substantive elements, it would not have divided definition of offense and grading of offense into distinct, separately labeled subsections).
The logic in Griffin rings true: the offense of possession with intent to deliver is completely and exclusively defined in
Other jurisdictions which have addressed the issue of recidivist sentencing enhancements have concluded Apprendi’s pri- or conviction exception applies and a prior conviction need not be determined by a jury beyond a reasonable doubt. See, e.g., Fyler v. State, 852 So.2d 442 (Fla.Dist.Ct.App.5th Dist.2003) (habitual offender classification based on defendant’s prior criminal record does not require jury determination pursuant to holding in Apprendi); State v. Kendall, 274 Kan. 1003, 58 P.3d 660 (2002) (use of defendant’s two prior DUI convictions to change classification of subsequent DUI conviction from misdemeanor to felony did not violate Apprendi); State v. Clemons, 273 Kan. 328, 45 P.3d 384 (2002) (juvenile adjudications are within exception of Apprendi for prior convictions and may be used in calculating defendant’s criminal history score under Kansas Sentencing Guidelines Act); State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002) (Apprendi prior conviction exception, to requirement that jury must determine any fact increasing penalty for crime beyond statutory maximum, encompasses juvenile adjudications); State v. Weldele, 315 Mont. 452, 69 P.3d 1162 (2003) (Apprendi did not require that prior DUI convictions be submitted to jury and proven beyond reasonable doubt); State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003) (fact of prior convictions did not have to be determined by jury for purposes of habitual criminal sentencing; prior convictions must be proven by preponderance of evidence); State v. LeBaron, 148 N.H. 226, 808 A.2d 541 (2002) (prior conviction was merely sentencing factor, rather than element of separate felony-level offense of driving after having been certified as habitual offender; defendant’s prior convictions need not have been alleged in indictment nor proved to jury beyond reasonable doubt); State v. Smith, 150 Wash.2d 135, 75 P.3d 934 (2003) (neither federal nor state constitutions require that prior convictions be proved to a jury beyond a reasonable doubt); State v. Wheeler, 145 Wash.2d 116, 34 P.3d 799 (2001) (same); State ex rel. Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002) (fact of predicate felonies supporting recidivist enhancement need not be proven to jury beyond reasonable doubt); State v. Veldt, 267 Wis.2d 960, 671 N.W.2d 717 (App.2003) (according to Apprendi fact of prior drunk driving conviction does not have to be submitted to jury).10
Thus, there is ample support for the conclusion that Apprendi’s prior conviction exception remains viable.
Appellant further argues, however, that this Court has drawn a distinction between cases where the recidivist statute provides for a mandatory minimum sentence and cases’ such as his, where the statute increases the maximum sentence. Appellant points to Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), and Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985), which address the constitutionality of two sections of the Mandatory Minimum Sentencing Act. See
In Wright and Allen, this Court held the sentencing factors of visible possession of a firearm and prior conviction of a violent crime were not elements of offenses, because: 1) the : legislature had explicitly stated, in the respective statutes, that the “[pjrovisions of this section shall not be an element of the crime . . .,”
Appellant emphasizes this Court’s- observation that neither of the statutes in Wright and Allen increased the maximum penalty for the offenses; from that, he extrapolates that, in a case where the maximum sentence is increased by a recidivist statute, the prior offense is an element of the crime. To support this supposition, appellant relies on Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) (“Williams I”), in which this Court held the sexually violent predator provisions of Pennsylvania’s Megan’s Law,
Appellant overlooks the fact, however, that the statute at issue in this ease does not provide for any fact-finding, nor does it make the increased maximum sentence contingent on any factual question that has not already been determined. The fact of a prior conviction stands alone; it does not require a presumption—it either exists as a matter of public record or it does not. See Allen, at 1071 (“The existence of a prior conviction is a simple historical fact which may be ascertained through official documents.”). The appellant’s guilt of the prior offense has already been determined beyond a reasonable doubt, by a jury, if he chose to exercise that right, and is a “ ‘straightforward issue capable of objective proof and where ‘the risk of error was slight’.... ” Commonwealth v. Butler, 563 Pa. 324, 760 A.2d 384, 388 (2000) (quoting Williams I, at 607); see also Wright, at 362 (noting that in
Thus, in cases where the fact which increases the maximum penalty is not a prior conviction and requires a subjective assessment, anything less than proof beyond a reasonable doubt before a jury violates due process. Additionally, any judicial finding which results in punishment beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. See Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) (“Williams II ”) (citing Apprendi). Where, however, the judicial finding is the fact of a prior conviction, submission to a jury is unnecessary, since the prior conviction is an objective fact that initially was cloaked in all the constitutional safeguards, and is now a matter of public record.12
Notes
. The Commonwealth argues this issue is waived because appellant failed to raise it in the trial court or in his
. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury----”
. See also Apprendi, at 487, 120 S.Ct. 2348. The majority in Apprendi commented that Almendarez-Torres represented, at best, an “exceptional departure” from the historical practice of treating facts which exposed a defendant to a greater punishment than that prescribed as “elements” of a separate offense. Id. The majority also noted the defendant in Almendarez-Torres had admitted his three prior convictions, so no question concerning the right to a jury trial or the standard of proof was before the Court; rather, the sufficiency of the indictment was the specific issue in that case. Id., at 488, 120 S.Ct. 2348. Further, the prior convictions in Almendarez-Torres, unlike the sentence enhancement in Apprendi, had been entered in a proceeding where the defendant had the right to a jury trial and proof beyond a reasonable doubt. Id. Thus, the majority concluded, with respect to AlmendarezTorres, although that case was arguably decided incorrectly, “[g]iven its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.” Apprendi, at 489, 120 S.Ct. 2348. The Apprendi Court further held McMillan was limited “to cases that do not involve the imposition of a sentence more severe than the statutory maximum . . .—a limitation identified in the McMillan opinion itself.” Apprendi, at 487 n. 13, 120 S.Ct. 2348.
. Apprendi did not address the indictment issue separately, as the appellant did not assert a claim based on the omission of any reference to sentence enhancement in the indictment. Id., at 477 n. 3, 120 S.Ct. 2348.
. The judge determined the defendant “committed the offense . . . in expectation of the receiptf ] of anything of pecuniary value,”
. In light of Apprendi, the Court overruled Walton. Ring, at 2443.
. Our conclusion in this regard is confirmed by a recent decision of the Supreme Court. See Blakely v. Washington, - U.S. -, -, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, -(2004) (reciting, with approval, the Apprendi rule, complete with its exception for prior convictions).
. In Edmunds, this Court set forth four factors to be briefed and analyzed by litigants asserting state constitutional claims:
1) text of the Pennsylvania Constitutional provision;
2) history of the provision, including Pennsylvania case law;
3) related case law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.
Edmunds, at 895.
. See Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339, 340 (1970) (trial court lacked power to impose increased sentence when indictment did not contain averments of prior convictions); Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607, 156 A.2d 804, 807 (1959) (defendant may not be sentenced as recidivist without supporting judicial determination of issue, and unless he is notified, prior to sentencing, of issue of recidivism and has had opportunity to be heard); Commonwealth v. Payne, 242 Pa. 394, 89 A. 559, 561 (1913) (previous conviction of accused must be averred in indictment and record of conviction must be offered in evidence in support of averment); Rauch v. Commonwealth, 78 Pa. 490, 1875 WL 13105, *4 (1875) (court cannot impose increased punishment based upon second misdemeanor conviction unless former conviction is stated in indictment); Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118, 1119 (1979) (since second offense carries greater penalty than first offense, it is different in kind and character than first offense, and particular characteristics distinguishing it from first offense must be pled in indictment); Halderman‘s Case, 53 Pa.Super. 554, 1913 WL 4715, *1 (1913) (“To leave to a trial judge to find from evidence not suggested in the record that the party convicted was guilty of the offense to which the greater punishment is attached would deprive the defendant of the right to a trial on a question vitally affecting his liberty and as to which he had a right to be heard.”); Commonwealth v. Stack, 20 Pa.D. 599, 1910 WL 3240, *2 (Pa.O. & T.) (1910) (clear meaning of discussion in Rauch is that district attorney is required to establish, affirmatively, fact of recidivist‘s identity unless it is admitted, and it must be put to jury).
. Other jurisdictions, in applying Apprendi‘s holding where the fact which increased the maximum penalty was something other than a prior conviction, have also noted Apprendi‘s prior conviction exception. See, e.g., Ex Parte Waldrop, 859 So.2d 1181, 1186 (Ala.2002); State v. Ring, 204 Ariz. 534, 65 P.3d 915, 937-38 (2003); People v. Sengpadychith, 26 Cal.4th 316, 109 Cal.Rptr.2d 851, 27 P.3d 739, 742 (2001); State v. Sanko, 62 Conn.App. 34, 771 A.2d 149, 155 (2001); State v. Carvalho, 101 Hawai‘i 97, 63 P.3d 405, 410 (2002); People v. Swift, 202 Ill.2d 378, 269 Ill.Dec. 495, 781 N.E.2d 292, 294 (2002); State v. Jacobs, 644 N.W.2d 695, 698 (Iowa 2001); State v. Palermo, 818 So.2d 745, 751 (La.2002); State v. Burdick, 782 A.2d 319, 323 (Me.2001); People v. Mass, 464 Mich. 615, 635, 628 N.W.2d 540, 552 (2001); State v. Jones, 659 N.W.2d 748, 751 (Minn.2003); State v. Whitfield, 107 S.W.3d 253, 262 n. 7 (Mo.2003); Abrego v. State, 118 Nev. 54, 38 P.3d 868, 870 (2002); State v. McDonald, 134 N.M. 486, 79 P.3d 830, 832 (Ct.App.2003); People v. Walters, 196 Misc.2d 78, 763 N.Y.S.2d 715, 719 (N.Y.Sup.Ct.2003); State v. Lucas, 353 N.C. 568, 548 S.E.2d 712, 730 (2001); State v. Kelso, 2000 WL 145684, *2, 2000 Ohio App. LEXIS 4641, *5 (Ohio Ct.App.2000); State v. Dilts, 179 Or.App. 238, 39 P.3d 276, 279 (2002); State v. Simuel, 357 S.C. 378, 593 S.E.2d 178, 180 (Ct.App.2004); State v. Holton, 126 S.W.3d 845, 850 (Tenn.2004); Ex parte Boyd, 58 S.W.3d 134, 136 (Tex.Crim.App.2001).
. An element of an offense is:
Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitation; or
(5) establishes jurisdiction or venue.
. Furthermore, prior convictions are extremely prejudicial to a defendant, if admitted into evidence at trial. See Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048, 1050-51 (1978) (“Evidence of prior criminal activity . . . is probably only equaled by a confession in its prejudicial impact upon a jury....”). In Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), this Court concluded although the accused must be notified before trial that the Commonwealth intends to seek an enhanced sentence for recidivism, evidence of the prior convictions could not be admitted at trial, except for impeachment purposes, in order “to avoid possible prejudice of the defendant by the charge of a former conviction.” Id., at 831. See also Almendarez-Torres, at 234, 118 S.Ct. 1219 (noting, in response to argument that name and details of prior offense could be redacted for jury, that jurors would still learn of nature of offense, e.g., aggravated felony, and that “we do not believe . . . Congress would have wanted to create this kind of unfairness in respect to facts that are almost never contested.”)
Concurrence Opinion
Concurring.
I join the Majority Opinion with the sole exception of footnote one, which rejects the Commonwealth’s claim that appellant waived his constitutional challenge to the statutory sentencing enhancement found at
Generally speaking, “[a]n illegal sentence is one that exceeds the statutory limits. Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003) (quoting Commonwealth v. Hunter, 768 A.2d 1136, 1144 n. 3 (Pa.Super.2001)) (further citation omitted); Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280, 1284 (2000) (citation omitted); Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1325 (1995); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845, 847 (1974). Alleged errors in the imposition of a sentence that falls within the authorized statutory range of punishment, as this one unquestionably does, do not implicate the “legality” of that sentence. Indeed, appellant does not dispute that the statute at issue authorizes the sentence he received; instead, he complains that the decision-making authority reposed in the enhancement statute is directed at the court rather than a jury. Such a claim should presumptively be deemed waivable.
But the matter is not so simple. One complicating factor is that here, as in the Bradley case, it could be said that “if appellants claim proved to have merit, it would’ implicate the legality of his sentence”
I have serious reservations concerning the prospect of employing a form of relaxed waiver to absolve a criminal defendant of the requirement of preserving a novel sentencing challenge in the trial court based upon the assumption that, if the claim proved to have merit and the statute under which the defendant was sentenced were suspended, the sentence would exceed the residual statutory maximum. Appellants sentence unquestionably is lawful upon its face, given the existing statutory construct; his claim, in essence, seeks to alter that construct. In short, appellant would belatedly like his to be the test case which would result in striking the statute down on constitutional grounds. In this regard, the posture of this appeal is significantly different from that at issue in Commonwealth v. Wynn, 567 Pa. 183, 786 A.2d 202 (2001) (per curiam), the case cited by the Majority to support its holding that appellants sentencing challenge is unwaivable. This Courts per curiam reversal in Wynn merely afforded that defendant the benefit of this Courts existing holding in Commonwealth v. Butler, 563 Pa. 324, 760 A.2d 384 (2000), that the “two strikes” legislation under which Wynn was sentenced was unconstitutional. The Court did not overlook Wynns waiver in order to innovate or announce a holding that a statute was unconstitutional, as appellant would have this Court do; that innovation had been secured by the defendant in Butler, and the per curiam order in Wynn declined to enforce the waiver so as to prevent service of an unconstitutional sentence.
A second complicating factor here is the existing uncertainty in the law over’ the significance that a waived sentencing claim has a constitutional dimension. This is a question which the Court did not address or decide despite its square presentation in
In deeming waiver to be inapplicable in the case sub judice, the Majority extrapolates from the per curiam decision in Wynn a broad general proposition that constitutional challenges to a sentence cannot be waived. I disagree with such a far-reaching rule. Pennsylvania courts have held on numerous occasions that constitutional challenges to a sentence are waived if not properly raised below. See generally Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139, 1143-45 (1987) (en banc) (Cirillo, P.J., concurring) (collecting cases). Moréover, many fairly routine sentencing claims have a direct or tangential constitutional dimension. To hold that a mere allegation of unconstitutionality renders the claim impervious to waiver would be absurd. There is no reason to afford garden variety, or novel, sentencing claims of constitutional dimension a status which is denied to equivalent constitutional claims affecting the trial itself.
I nevertheless recognize that the contours of Pennsylvania’s “illegal sentence” doctrine is uncertain; that Wynn exacerbated the situation, particularly with respect to claims involving constitutional challenges to sentences falling within the authorized statutory range; and that it is an issue which this Court should address in an appropriate case. Moreover, recent experience teaches that the issue should be treated in a less monolithic fashion than our brief discussions over the years may have suggested. As I have noted above, a claim that a sentence is “illegal” may be offered for a variety of reasons: to negate an abject waiver on direct appeal, as here; to secure substantive appellate review of a preserved claim in light of statutory restrictions, as in Bradley; as a basis for creating a form of extraordinary jurisdiction nunc pro tunc, see Fajohn v. Commonwealth, 547 Pa. 649, 692 A.2d 1067 (1997); and, I would expect, both to defeat limitations upon the retroactive application of new procedural rules and to secure belated collateral review of a sentence in the face of the statutory restrictions imposed by the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 9541 et seq. Should this Courts construction of the term “illegal sentence” be so broad as to permit a party such as appellant to seek to innovate a new constitutional rule of procedure, where normative principles of issue preservation and retroactivity ordinarily would prevent such an innovation? Should that construction apply only to those seeking the benefit of an existing law or interpretation which calls into question the lawfulness of their sentences (as in the case of the appellant in Wynn who sought application of the Butler decision), as opposed to one seeking to make that very law? Should the definition of what is an “illegal” sentence for purposes of avoiding a judicial issue preservation doctrine factor in the reality that the Court would essentially be permitting the defendant to mount a
In this regard, it is important to recognize that the type of innovative constitutional ruling appellant seeks to secure here—i.e., a ruling that
Logically, the question of when a sentencing claim should be deemed to be of such fundamental importance as to defeat existing procedural defaults should depend upon a balance of the specific nature, of the claim forwarded and the specific statute, rule or judicial default doctrine which would be negated by judicial consideration of the claim. I would flatly reject the blanket notion that if a sentencing claim is deemed to implicate “legality,” it necessarily suspends all countervailing considerations. I would reserve that sort of status to those few sentencing claims which fall within the traditional realm of what may be called the “illegal”: i.e., those which challenge sentences exceeding the very jurisdiction or power of the sentencing court, such as a twenty-year sentence for an offense which is punishable by a maximum of ten years, or separate sentences on offenses which merge. Appellants claim that his sentence, which falls within the durational parameters of the statute under which he was sentenced, is infirm because the statute suffers- from some constitutional deficiency (such as the allocation of decision-making authority) is not nearly of the same magnitude as a claim that the courts sentence exceeded the very authority granted it by the General Assembly.
I am strongly inclined to view the instant claim as waived and therefore available to appellant, if at all, only under the
On those merits, as noted at the outset, I join the Majority Opinion.4
. Appellant concedes that his claim is waived since he first raised it in the Superior Court, despite the fact that it ripened in the trial court upon imposition of sentence.
. .Under the Sentencing Code construct at issue in Bradley, ”[t]he defendant or the Commonwealth may appeal as of right the legality of the sentence,”
. Wynn‘s two strikes sentence of ten to twenty years’ imprisonment for felony aggravated assault did not exceed the statutory maximum for that offense. Felonies of the first degree are punishable by up to twenty years of imprisonment.
. In joining the Majority’s substantive analysis, I emphasize, as the Majority does, that this statute permits an increase in the maximum penalty available. Accordingly, the analysis in Commonwealth v. Bavusa, supra, which involved a statute which allowed for the sentencer to downgrade the offense upon proof at sentencing, is not at issue.
Concurrence Opinion
Concurring.
With regard to the issue of waiver discussed in footnote one of the majority opinion, I noted my concerns in Commonwealth v. Wynn, 567 Pa. 188, 184-85, 786 A.2d 202, 202 (Pa.2001) (Saylor, J., dissenting), which the majority does not undertake to resolve here. On the merits of the constitutional issue, I concur in the result reached by the majority, and with its analysis of Appellant’s federal claim. For the following reasons, however, I am unable to join its reasoning pertaining to Appellant’s claim under the Pennsylvania Constitution.
Initially, the majority rejects Appellant’s state constitutional argument by stating that the common law only treated recidivism as an element of the crime due to the determinate sentencing scheme in force in the early days of the Commonwealth, and thus, such historical treatment should not be understood as reflecting a precept that a prior conviction is an offense element in a broader sense so as to implicate the jury trial right. See Majority Opinion, (“Majority Op.”) at 258-59, 855 A.2d at 808. Later, in distinguishing Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999), the majority asserts that the statute challenged here does not impose any impermissible presumption that a defendant is a recidivist because the finding of recidivist status can never be contingent upon any disputed issue of fact. See Majority Op. at 263-64, 855 A.2d at 811. If true, this alone would provide a sufficient basis to reject summarily any contention that Appellant is entitled to have a jury decide the question of recidivism. See generally Blum v. Merrell Dow Pharmaceuticals, 534 Pa. 97, 113, 626 A.2d 537, 545 (1993) (noting that the state constitutional jury trial right signifies that “a jury shall continue to be the tribunal for the determination of all questions of fact” (quoting Commonwealth v. Collins, 268 Pa. 295, 299, 110 A. 738, 738-39 (1920))). However, the fact of a prior conviction, while perhaps easily determined in many instances, must still be determined; it is not self-proving. As apparently acknowledged by the majority, there may be disputed questions of identity, see Majority Op. at 257-58 n. 9, 855 A.2d at 807 n. 9,1 as well as issues surrounding the accuracy of any documentation that the Commonwealth proffers as proof of an alleged prior conviction, or that the offense was “similar” for purposes of
The sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section....
Furthermore, I do not find the relative labeling and statutory placement of the underlying offense and sentencing enhancement to support the conclusion that state constitutional right does not extend to the latter. See Majority Op. at 258-61, 855 A.2d at 808-09 (quoting Commonwealth v. Griffin, 804 A.2d 1, 15 (Pa.Super.2002)). While these factors may illuminate legislative intent, they cannot properly be given a constitutional dimension, as the constitutional inquiry “is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 2365, 147 L.Ed.2d 435 (2000); see also id. at 496, 120 S.Ct. at 2366 (“[T]he mere presence of th[e sentencing] ‘enhancement’ in a sentencing statute does not define its character.”).2
More convincing, in my view, is the majority’s reasoning concerning the nature of an element of a criminal offense. In particular, the majority correctly points out that a previous conviction is qualitatively different from an offense element because the latter pertains to the commission of the crime itself, whereas any prior conviction was entered in a proceeding where the defendant had the right to a jury trial and to require proof of guilt beyond a reasonable doubt. See Majority Op. at 253-56, 855 A.2d at 805-06 (quoting Apprendi, 530 U.S. at 496, 120 S.Ct. at 2366). Although these observations appear in the portion of the majority opinion dealing with Appellant’s federal claim, the same considerations logically apply to his contention advanced under the state charter. It is on this basis that I agree with the outcome reached by the majority, namely, that the challenged sentence enhancement does not implicate the right to a trial by jury as guaranteed by the Pennsylvania Constitution.
. In footnote nine, the majority cites to Commonwealth v. Stack, 20 Pa. D. 599, 1910 WL 3240 (Pa.O. & T.1910), which contains the following relevant discussion:
Identity of name often furnishes a presumption of identity of person, until denied, in civil cases, upon which judicial action may be taken; and in State v. McGuire, 87 Mo. 642, the burden of disproof was put upon the defendant in the indictment when the record of his former conviction was produced. But the great weight of authority is otherwise in criminal prosecutions, and the clear meaning of the discussion in Ranch [sic] v. Com., 78 Pa. 490, and Kane v. Com., 109 Pa. 541, is that the district-attorney is required, unless it be admitted, to establish affirmatively this fact of identity, and it must be put to the jury.
Id. at *2. The matter may also be complicated where the defendant has used aliases or has changed his or her name. E.g., Graham v. West Virginia, 224 U.S. 616, 620-21, 32 S.Ct. 583, 584, 56 L.Ed. 917 (1912).
. See also Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 2439, 153 L.Ed.2d 556 (2002) (stating that, no matter how a state chooses to label . a particular fact, if an increase in punishment is contingent upon the finding of such fact, it must generally be found by a jury beyond a reasonable doubt); Blakely v. Washington, - U.S. -,-, 124 S.Ct. 2531, 2539, 159 L.Ed.2d 403, -(2004) (rejecting the position that a state can avoid the jury trial requirement through creative labeling of offense elements). While these pronouncements were made in the context of challenges based upon the jury trial right contained in the United States Constitution, they must also be applied to the same right as guaranteed by the Pennsylvania Constitution, for otherwise the General Assembly could substantially restrict its scope through drafting. Cf. Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457, 466 (1983) (observing that federal constitutional guarantees are equally applicable to the analogous state constitutional provision).