*1 A.2d Pennsylvania, Appellant, COMMONWEALTH
v. Gеorge BELAK, Appellee. R. Pennsylvania, Appellee, Commonwealth of Belak, George Appellant. R.
Supreme Pennsylvania. Court of
Argued Sept. 2002. Decided June Reargument Aug. Denied *2 Powanda, Allen Peck, P. W. Greensburg, John of Pennsylvania. wealth Antkowiak,
Bruce Antoni Greensburg, Belak. George R. ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO, Before NEWMAN, EAKIN, SAYLOR and JJ.
OPINION Justice NIGRO.
Appellee/Cross-Appellant George was convicted of *3 burglary and other related offenses. Given that he had of previously twicе, been convicted at burglary least Belak was subsequently sentenced, 42 pursuant § Pa.C.S. to the mandatory minimum twenty-five years’ of and imprisonment the of mandatory fifty maximum years’ On imprisonment.1 sentencing, At the time of Belak’s provided section 9714 in relevant part: (a) Mandatory sentence.'—(cid:127) (1) Any person any who is convicted in court of this Commonwealth shall, of a crime violence if of at the time of the commission of the person previously current offense the had been a convicted of crime of presumption high danger- violence and has not rebutted the of risk (c), provided ous offender as in subsection be to a sentenced mini- confinement, years mum of sentence at least ten total of notwith- standing any provision other of this title or other statute to contrary. If at the time of of the commission current offense the person previously has been of a convicted crime of violence has high presumption dangerous rebutted the of provided risk offender as (c), person subsection be shall sentenced to a minimum confinement, years sentence notwithstanding of at least five of total any (2) provision other contrary. of this title or other statute to the person Where the had at the time of the commission of the previously current offense been of convicted two or more such crimes transactions, arising violence from pеrson criminal of shall be years sentenced to a minimum sentence at least 25 total of of
confinement, notwithstanding any
other
this
of
title or other
contrary----Upon
statute to the
subsequent
conviction for a third or
judgment
Belak’s
affirmed
initially
Superior
Court
appeal,
trial counsel had
sentence,
claims
his
rejecting Belak’s
9714 is unconstitutional
that section
ineffective2 and
been
to rebut
on the defendant
it
the burden
places
because
dangerous offender.
high-risk
he
a
is
presumption
Court, however,
opinion
its
subsequently withdrew
Superior
in following this Court’s decision
(2000),
held that section
where we
760 A.2d
Pa.
by placing
process rights
a
due
violates
defendant’s
high-
that he is a
him to
the presumption
rebut
the burden
Butler,
With to the ineffectiveness claims raised Belak, Belak specifically contends his trial was counsel trial, ineffective for failing to him to for prior interview his to interfering right to testify, failing interview and particular call a witness who have would testified that another person had confessed to committing of which Belak crimes accused, been had failing and utilize the properly discovery process order impeach one оf Common wealth’s witnesses.5 Grant, Commonwealth v.
In
(Pa.2002),
Turning sentencing to the issue raised monwealth, the contends Commonwealth judgment to Belak’s on Butler reverse relying Court erred under section because Belak was sentenced of sentence 9714(a)(1), no 9714(a)(2),which, places presump unlike section agree. tion on the defendant.7 We assertion the Commonwealth’s supports The record 9714(a)(2), as was in fact sentenced under section that Belak “mandatory to the the trial court sentenced Belak explicitly only twenty-five imprisonment, minimum” of which years’ 9714(a)(2). R.R. at under section sentencing consistent court labored under Although apparently 462. trial it to wheth necessary belief that wаs determine mistaken to dangerous offender order high-risk er Belak 9714(a)(2),8any by Belak error the trial sentence under section court in Belak as such was harmless. This is classifying 9714(a)(2), because, once plain language under the of section the trial court determined that Belak had been convicted violence, to required three crimes оf it was sentence Belak twenty-five years’ imprisonment, minimum of it that Belak was a regardless whether had determined dangerous § See 42 high-risk offender. Pa.C.S. argument its counters waived here Belak seeking specifically it failing to articulate that was to sentence Belak record, however, 9714(a)(2). argu- Belak’s under section ment, belies sentencing hearing, at as it shows that seeking expressly that was to sentence Belak wealth stated it under A-(2) Although at 410. the Com- “Subsection of Section 9714.’’ R.R. sentencing prior did letter Belak's counsel monwealth send a trial it counsel it would seek sentence under which notified letter, Commonwealth also stated in that same imprisonment parole, of life without it intended to seek sentence 9714(a)(2). sentencing only under section R. which is consistent with 15; 9714(a)(2) (providing for a at maximum sentence see parole upon or imprisonment conviction of third of life without subsequent determines that lesser crime of violence if court safety). protect public is insufficient to failing object Although to the Belak faults the Commonwealth here, object that Belak failed to as well. trial court's mistake we note (“Where person at the time of had the commission of the current previously offense been convicted of or two more such transactions, crimes of violence from arising criminal shall be sentenced to a person minimum sentence of *6 25 of years confinement, least total notwithstanding any other of this title or other provision contrary____” statute the added)). (emphasis
As the record shows that Belak was sentenced under section 9714(a)(2), and not the we section that found unconstitutional Butler, ie., 9714(a)(1), in agree section the we with sentencing wealth that Belak’s did not his violate Fourteenth right process Amendment to due under this holding Court’s Butler. 9714(a)(1), Unlike the unconstitutional section the 9714(a)(2) of section plain language impose does not kind any defendant, proof of burden of on nor does it the require id. Rather, rebut of any presumption. defendant kind 9714(a)(2) effectively places section burden the Com- monwealth to show that offender has оf been convicted violence, of three crimes a burden that the Commonwealth clearly such, met here.9 As Court erred Butler to Belak’s applying sentencing under section 9714(a)(2).10 sentencing, stipulated
9. We
note that
his
Belak
fact
to the
that he had
burglary
previously.
been
of
convicted
at least three times
Rather,
meaningful argument
10. no
оffers
on the
issue.
Butler
he asserts that even if
finds
he
sentenced
under
9714(a)(2),
sentencing
section
his
rights
violated his
constitutional
process
by jury
Apprendi
Jersey,
due
and trial
under
v. New
U.S.
530
466,
2348,
(2000).
120 S.Ct.
147 L.Ed.2d
Apprendi,
435
In
the United
Supreme
States
that a
Court held
defendant’s Fourteenth Amendment
right
process
right
to due
jury require
and Sixth Amendment
to trial
fact,
conviction,
any
prior
fact
other than the
of a
increases
maximum,
penalty
beyond
prescribed statutory
for a crime
be
jury
proven beyond
submitted to a
a reasonable doubt. Id. at
essentially argues
Apprendi,
421 Butler to Be inapplicable is Having determined 9714(a)(1), must now deter we sentencing under section lak’s from section is severable mine whether constitutionally repugnant found to be provision of in Butler. interpret provisions courts are to general, In possible, whenever such as from each other statutes severable not affect statute does invalidity provision that the one of that statute. Pa.C.S. validity of another to this rule where: exception general § is an 1925. There 1103(1) imprison- (setting § a maximum term Compare 18 Pa.C.S. conviction), first-degree felony twenty years ment 9714(a.l) imprison- term of (setting a maximum 9714 to twice the any sentenced under section ment for offender fifty years mandatory here). imprisonment, or a total of minimum sentence waived, see, Although arguments unlawful sentence cannot be of an Walker, (1975), e.g., A.2d did not raise this properly before this Court. Belak this issue not *7 petition appeal his initial brief in his for allowance of or in issue such, Court, rather, reply brief. As but raised it for first time in his improper issue. See Pa.R.A.P. it would be 2113(a) (“[T]he for us consider this by may raised appellant reply file brief in matters appellant’s brief. If the appellee’s previously not addressed in and brief similarly appealed, appellee may file a appellee has limited cross (“The added)); scope of (emphasis 2113 cmt. Pa.R.A.P. brief.” only may is that brief address matters reply brief limited ... in such added)); by (emphasis Fahy, v. appellee ....” raised 313, 214, (1999) (an prohibited appellant 219 n. 5 is 558 Pa. 737 A.2d 1115(a)(3) brief); reply raising see Pa.R.A.P. issues in a also from ("Only new petition questions [for forth in the allowance those set therein, ordinarily comprised be fairly or will considered appeal], allowed.”); Lewis v. appeal event an is United the court that 1055, Inc., 626, (1997) (applying 5 Hasps., 692 A.2d 1058 n. 1115(a)(3) refusing not raised to consider issues Pa.R.A.P. and petition appeal). for allowance of Apprendi properly issue was if we were to find that Belak’s Even us, sentencing hearing, stipulated we note that at his before present during persons the commission of his the fact that werе that a burglaries. stipulation A is a declaration fact See R.R. according agreed upon to its terms. proven, and it must be enforced is 1069, Rizzuto, (2001). v. 777 A.2d 1088 See Commonwealth Pa. underlying Consequently, permitted be to contest the Belak should not obtaining appeal purpose burglary on facts of his convictions Burdick, (Me. State 782 A.2d Apprendi. under Seе relief 2001) against Apprendi challenge where the (upholding an during challenge underlying fact trial or did of conviction defendant not appeal). sentencing subsequently challenged fact but court finds that the valid of the are provisions [T]he statute essentially with, so and inseparably connected and so de- pend upon, application, the void or that it cannot presumed that Assembly be would General have enacted one; the remaining valid without the void or provisions unless that the court finds valid remaining provisions, alone, standing incomplete are and are incapable being with legislative executed in accordance intent. Id. This here, however, not excеption apply does because 9714(a)(2) clearly section is independent separable of and from 9714(a)(1). Furthermore, invalid section section 9714(a)(2), standing 9714(a)(1), from apart section is both capable and complete being executed in accordance In legislative enacting intent. section the legislature 9714(a)(2) sought рunish recidivists, violent and section can accomplish goal without reference to the invalid section 9714(a)(1). legislative history section 9714 supports also 9714(a)(2)
conclusion section from severable section 9714(a)(1). Following our decision the legislature removed presumption the invalid from section as noted, 9714(a)(2) previously but it reenаcted section verbatim. 9714 (Supp.2002). Given this legislative history, we conclude the legislature intended section 9714(a)(2) to stand apart from the invalid section 9714(a)(1) 9714(a)(2) and therefore section is severable 9714(a)(1). such, 9741(a)(2) from section As is not simply unconstitutional because we declared section Butler. unconstitutional *8 we
Accordingly, reverse the оf Superior order Court insofar as it judgment vacated Belak’s of sentence re- Butler, in light manded resentencing of and we reinstate of judgment sentence. We also vacate the of decision with respect to Belak’s claims trial of counsel’s ineffectiveness and dismiss these claims without prejudice to Belak to raise those claims in a PCRA petition. relinquished. Jurisdiction concurring opinion. a files CASTILLE
Justice ZAPPALA did not participate Former Chief Justice of this case. decision CASTILLE, concurring.
Justice
Majority correctly holds
Majority
join
Opinion.
I
§ 9714(a)(2),
42 Pa.C.S.
provision,
the “three-strikes”
right to
Fourteenth Amendment
not violate defendant’s
does
v.
holding in Commonwealth
under this Court’s
process
due
beсause,
(2000),
unlike the