COMMONWEALTH of Pennsylvania, Appellant v. Oliver FOSTER, Appellee.
17 A.3d 332
Supreme Court of Pennsylvania.
Argued Oct. 20, 2009. Re-Submitted Jan. 18, 2011. Decided March 29, 2011.
502 Pa. 1
Whether, in light of the standards applicable to evaluating and determining motions for summary judgment, the Superior Court erred in affirming the trial court‘s grant of summary judgment based on the trial court‘s determination that Respondent and her late husband had not made a parol gift of land to Petitioner. See Fine v. Checcio [582 Pa. 253], 870 A.2d 850 (2005).
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice BAER.
In Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007), this Court determined that
The factual and procedural background of this case is undisputed. On the evening of January 6, 2006, the victim, Roger Snyder, was home in his apartment in Philadelphia.
The three men then walked to an ATM machine. Darryl withdrew $400 (in two different transactions of $100 and $300, respectively) from Mr. Snyder‘s bank account. Immediately thereafter, Darryl‘s brother arrived in a silver SUV, and Darryl entered the vehicle, leaving the scene. Appellee did not follow Darryl, but instead walked a short distance with Mr. Snyder, before suddenly fleeing the area on foot.
Philadelphia Police Detective Sarah Valentino was assigned to investigate the robbery, and arrested Appellee on January 16, 2006. After his arrest, Appellee voluntarily told Detective Valentino that he took a man known as “D” to Mr. Snyder‘s apartment. Apparently, Appellee owed “D” money, and, coincidentally, Mr. Snyder owed Appellee money. Accordingly to Appellee, upon entering the home, “D” showed Mr. Snyder the firearm, looked through Mr. Snyder‘s wallet, and then the three men left the apartment for an ATM machine. After “D” withdrew the $400, he entered the silver SUV and fled the area. No evidence, however, suggested that Appellee himself visibly possessed a firearm.
Based upon Mr. Snyder‘s account of the events in question, as well as Appellee‘s admissions, Detective Valentino charged Appellee with robbery, conspiracy, two counts of theft, possession of an instrument of crime (PIC), reckless endangerment, terroristic threats, carrying an unlicensed firearm, and carry-
Prior to sentencing, the Commonwealth invoked the mandatory minimum sentencing provision of
Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.3
A sentencing hearing was subsequently held on November 30, 2006. Appellee had no prior convictions, and the sentencing guidelines suggested twenty-two to thirty-six months of minimum incarceration, plus or minus twelve months. As robbery is a felony of the first degree, the most Appellee could have been sentenced to serve was twenty years of incarceration.
Approximately four months after the court imposed sentence, this Court issued its decision in Dickson, supra, in which we held that the
As explicitly permitted by the Superior Court, Appellee raised his “Dickson challenge” as part of his merits argument in his direct appeal. See Commonwealth v. Foster, 960 A.2d 160 (Pa.Super.2008). Before reaching those merits, however, the Superior Court determined that it was required first to analyze whether Appellee‘s challenge was properly before it, as Appellee had failed to file post-sentence motions concerning his “Dickson challenge” with the trial court. See Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super.2006) (averments of sentencing error are generally waived if not raised, in the
The panel first analyzed the scenarios which this Court has found “unequivocally relate to the legality of sentence.” Foster, 960 A.2d at 164. First, any claim, which asserts a sentence exceeds the lawful maximum, implicates the legality of the sentence. See e.g. Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005).7 Related to this first instance, the panel recognized that any challenge premised upon the United States Supreme Court‘s holding in Apprendi v. New Jersey8 involves a sentence‘s legality:
In the Apprendi setting, a defendant asserts that the maximum sentence to which he was subject was unconstitutionally increased based upon the existence of a fact that should have been submitted to a jury rather than determined by
the sentencing court. Thus, if a defendant were to prevail on an Apprendi violation, he would have been sentenced in excess of the sentence that should otherwise have been imposed within constitutional parameters.
Foster, 960 A.2d at 165 (citing Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800 (2004) (Castille, J. (now, C.J.), concurring)).
Second, the panel found that this Court has concluded that a challenge by the Commonwealth that the sentencing court improperly refused to impose a mandatory minimum sentence or fine implicated the legality of a defendant‘s sentence, and thus was also nonwaivable. Indeed, on two occasions, Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280 (2000), and Commonwealth v. Smith, 528 Pa. 380, 598 A.2d 268 (1991), this Court found that, pursuant to explicit statutory authority, the Commonwealth has an unfettered right to appeal a sentencing court‘s failure to apply mandatory minimum sentences. For example, in Vasquez, the Commonwealth had sought a mandatory fine against a defendant for possession of a controlled substance with intent to deliver. Although the Commonwealth provided the required notice of intent to seek the mandatory fine with the trial court and defendant, the trial court, at sentencing, failed to impose the fine.9 The Commonwealth failed to preserve the issue through a timely lodged objection or post-sentence motion. On appeal, the defendant argued that the mandatory fine could no longer be imposed because the Commonwealth had waived any contentions in this regard by failing to object or file a post-sentence motion. This Court unanimously disagreed, finding “because the initial sentence lacked the mandatory fine, it was illegal from its inception and always susceptible to correction.” Vasquez, 744 A.2d at 1284.10 Thus, the Commonwealth‘s sentencing challenge was nonwaivable.
With this in mind, the Superior Court then reviewed our decision in In re M.W., 555 Pa. 505, 725 A.2d 729 (1999). There, a juvenile, who had been adjudicated delinquent pursuant to a plea agreement, challenged the juvenile court‘s authority to impose a restitution order arguing that the Commonwealth had failed to attribute property damage to him. On appeal to this Court, the Commonwealth averred that the juvenile had waived any such challenge because he failed to file a
The panel then turned to its own caselaw concerning legality of sentences. Specifically, the court cited, among other decisions, to three recent cases, Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super.2007) (unsuccessful challenge to the impo-
second-time violent offenders implicated a sentence‘s legality in light of explicit statutory authority contained within
If a sentencing court shall refuse 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 the imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
Recognizing these holdings as panel decisions, the Superior Court looked to a recent en banc decision of that tribunal, Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super.2007) (en banc). There, the Superior Court was faced with deciding whether a trial court‘s alleged vindictiveness or bias in sentencing implicated the legality of the sentence, such that preservation of the issue was not required. In finding that a “vindictiveness” claim did not concern the legality of the imposed sentence, the Robinson Court suggested that illegal sentences only exist in a “narrow class” of cases: excessive sentences, Apprendi challenges, and merger/double jeopardy scenarios, because “[T]hese claims implicate the fundamental legal authority of the court to impose the sentence that it did.”
Based upon this jurisprudence and the fact that the trial court lacked authority to impose a sentence less than the five year mandatory minimum at the time it rendered sentence, the Superior Court determined that the improper imposition of the
Judge Shogan filed a dissenting opinion, noting that “the classic formulation of an illegal sentence, as established by our Supreme Court, is one that exceeds the statutory limits.” Foster, 960 A.2d at 172 (Shogan, J., dissenting) (citing e.g. Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003)). From this general statement, the dissent premised its argument on the failure of the Robinson court to include explicitly cases, such as the one presented at bar, which concern mandatory minimum sentences, within the “relatively small class of cases” to which legality of sentence principles applies. The dissent then buttressed its argument by noting the refusal of this Court in Dickson (decided post-Robinson) to state specifically that challenges concerning mandatory minimum sentences implicate legality of the sentence, but see supra note 1.
For this reason, the dissent found inapposite the various Superior Court cases such as Harley, supra pp. 338-39, which had considered a defendant‘s appeal concerning a mandatory minimum to implicate legality of the sentence, because those decisions pre-dated Dickson. In the dissent‘s view, our failure in Dickson to include the imposition of a mandatory minimum
Former Justice (now Senior Judge) Fitzgerald concurred in full with the majority opinion, but wrote separately to address the points raised in the dissent. While recognizing the accuracy of the dissent‘s contention that almost all illegal sentence cases concern penalties that exceed the statutory maximum, the concurrence noted that those cases by no means foreclosed other legality of sentence claims. Rather, in the concurrence‘s view, the Superior Court‘s en banc Robinson decision specifically left the door open to other legality of sentence claims, by stating,
[The Superior Court has] established the principle that the term “illegal sentence” is a term of art that our Courts apply narrowly, to a relatively small class of cases. This class of cases includes: (1) claims that the sentence fell “outside of the legal parameters prescribed by the applicable statute“; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in [Apprendi]. These claims implicate the fundamental legal authority of the court to impose the sentence that it did.
Robinson, 931 A.2d at 21 (emphasis added), cited in Foster, 960 A.2d at 169 (Fitzgerald, III, J., concurring). The concurrence viewed this language as recognizing that other situations may exist outside of the “narrow class,” in which sentencing challenges implicate legality. It then found this appeal to be such a circumstance: “I cannot conclude that when a court believes it has no discretion [but] to impose a particular sentence, we must nonetheless consider it an issue of the
On appeal to this Court, the Commonwealth does not challenge the impropriety of Appellee‘s sentence when viewed in accord with the Dickson decision. Reply Brief of Commonwealth at 4 n. 2. Rather, the Commonwealth merely contends that the “Dickson challenge” should not have been sustained in the first instance, because Appellee‘s sentence involved solely discretionary aspects, was therefore waivable and, in fact, was waived by Appellee‘s failure to raise the instant challenge in his post-sentence motions or a
In support of its discretionary aspects/waiver argument, the Commonwealth points to statements by this Court on various occasions that “[A]s long as the sentence is within the statutory limit, it is legal.” Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1325 (1995); see also Bradley, supra p. 339. Thus, in the Commonwealth‘s view, because Appellee‘s sentence is within the statutory maximum (here, twenty years), it is necessarily legal and any challenges thereto had to have been preserved below. With this general proposition in mind, the Commonwealth then focuses on cases from this Court where we stated that claims of legality of a sentence center upon the “authority” of the sentencing court to impose a sentence or fine. For example, in Vasquez, supra p. 337, we accepted for adjudication a Commonwealth appeal in light of a sentencing court‘s failure to impose a mandatory fine, because the sentencing court lacked the “authority” not to impose the fine. Similarly, in In re M.W., supra pp. 337-38, we vacated a dispositional order for a juvenile because the order included an obligation to make restitution, which the juvenile court had no “authority” to impose, in light of the Commonwealth‘s failure to prove the juvenile caused any property damage.
After conclusion of the trial court proceedings, the defendant appealed the sentence to the Superior Court, contending that the sentence was illegal because the trial court imposed it pursuant to the repealed Section 5109. The Superior Court agreed, and remanded. On discretionary appeal to this Court, the Commonwealth argued that, even if Section 5109 was repealed by the Crimes Code of 1975, the trial court still had the “authority” to impose the sentence under the
Based upon this rationale, the Commonwealth here contends that, regardless of the applicability of
Appellee counters the Commonwealth‘s argument by first rejecting the notion that a sentencing challenge implicates legality only in an “in excess of the statutory maximum” scenario. To that end, Appellee points to the various decisions of the Superior Court, see supra pp. 337-38, which examine the appropriate application of a mandatory minimum sentence under the auspices of the sentence‘s legality. Appellee also cites to this Court‘s decision in Commonwealth v. Shaw, 560 Pa. 296, 744 A.2d 739 (2000), discussed in full, infra, where we summarily stated that a challenge to the imposition of a mandatory minimum sentence aimed at repeat DUI offenders could not be waived, as it equated to a challenge to the legality of the sentence.
On the question, of whether a “Dickson challenge” implicates the legality of an imposed sentence, the Commonwealth is correct in so much as this Court has generally maintained that the typical illegal sentence is one which exceeds the statutory maximum. See Vasquez; Miller. Under this maxim, we have also found that Apprendi-based challenges implicate the legality of a sentence. See Aponte, 855 A.2d at 802 n. 1. Notably, the parties herein do not dispute that Appellee‘s sentence falls within the statutory maximum for first-degree robbery. Of course, we have also recognized the inverse of
Consistent, then, with this Court‘s jurisprudence in this area of the law throughout the years, legality of sentence issues occur generally either: (1) when a trial court‘s traditional authority to use discretion in the act of sentencing is somehow affected, see e.g. In re M.W., 725 A.2d at 731 (holding that, when a sentencing issue “centers upon a court‘s statutory authority” to impose a sentence, rather than the “court‘s exercise of discretion in fashioning” the sentence, the issue raised implicates the legality of the sentence imposed); and/or (2) when the sentence imposed is patently inconsistent with the sentencing parameters set forth by the General Assembly.
Our decision in Commonwealth v. Shaw, 560 Pa. 296, 744 A.2d 739 (2000), cited by Appellee, further illustrates this two-pronged approach. There, we examined whether a New York statute prohibiting driving while one‘s ability is impaired (DWAI), was equivalent to Pennsylvania‘s prohibition against driving under the influence (DUI), for purposes of a recidivist-based mandatory minimum sentence. The sentencing court found the New York DWAI statute equivalent to Pennsylvania‘s DUI statute, thus implicating the third-time mandatory minimum sentencing provisions of
On appeal, our inquiry was guided by the sentencing court‘s interpretation of the mandatory minimum sentencing provisions for recidivist DUI offenders. Although the sentence imposed was below either of the relevant statutory maximums, the sentencing court believed itself bound by the mandatory minimum provision to sentence Shaw as a three-time offender. The sentencing court‘s belief in this regard led this Court at the outset of our analysis to state that the sentencing question raised by Shaw “implicate[d] the legality of his sentence, and not its discretionary aspects, since the sentencing court had no discretion in calculating the number of [Shaw‘s] prior DUI convictions for purposes of determining his mandatory minimum sentence....” Shaw, 744 A.2d at 742. Put differently, we seemingly viewed the applicable statutes as infringing upon a sentencing court‘s inherent power to impose a lawful, but discretionary sentence.
While Shaw has been our only pronouncement on the question presented sub judice, the Superior Court on a number of occasions has opined that a defendant‘s challenge to the imposition of a mandatory minimum sentence, regardless of whether that challenge is ultimately successful on the merits, implicates the legality of that sentence. See Commonwealth v. Gibbs, 981 A.2d 274 (Pa.Super.2009); Commonwealth v. Rush, 959 A.2d 945 (Pa.Super.2008); Commonwealth v. Henderson, 938 A.2d 1063 (Pa.Super.2007); Harley, supra; Johnson, supra; Littlehales, supra; Commonwealth v. Berry, 877 A.2d 479 (Pa.Super.2005) (en banc); Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super.2000), aff‘d 567 Pa. 183, 786 A.2d 202 (2001) (per curiam); Commonwealth v. Fogel, 741 A.2d 767 (Pa.Super.1999).
Indeed, in these circumstances, the Superior Court has concluded that a defendant‘s failure to: (1) raise a contemporaneous objection at the time of sentencing; (2) file a post-sentence motion; (3) include the sentencing issue in a Rule
DUI offense would have been graded as a second degree misdemeanor, with a statutory maximum of two years of imprisonment.
Our jurisprudence in this arena has been, and remains, equally narrow, and is only implicated when a sentencing court‘s inherent, discretionary authority to wield its statutorily prescribed sentencing powers is supplanted, abrogated, or otherwise limited, accord In re M.W., or the legislature‘s intent in fashioning a sentence has been potentially misapplied. Accord Baldwin; Andrews. In our view, there is little doubt that when a sentencing court has no alternative but to impose a certain minimum sentence, its authority to act has been infringed upon. Thus, under this Commonwealth‘s jurisprudence, any challenge thereunder must relate to a sentence‘s legality. Shaw, 744 A.2d at 742; In re M.W., 725 A.2d at 731; Berry, 877 A.2d at 483. Accordingly, we hold that where a sentencing court is required to impose a mandatory minimum sentence, and that mandatory minimum sentence affects a trial court‘s traditional sentencing authority or the General Assembly‘s intent in fashioning punishment for criminal conduct, a defendant‘s challenge thereto sounds in legality of sentence and is therefore nonwaivable.
illegal sentences), as a point of reference for legality of sentencing issues, the formulation contained herein appropriately sharpens the focus within this area of the law.
Indeed, this lack of sentencing authority concerning the imposition of mandatory minimum sentences illustrates why the Commonwealth‘s argument pertaining to our decision in Walton, supra pp. 340-41, is misplaced. As noted above, the Commonwealth contends that Walton stands for the proposition that sentences remain legal, and thus challenges to them must be preserved at all available stages, so long as a sentencing court retains some authority under any statutory framework to impose a desired sentence. Here, the Commonwealth contends such authority would be the statutory maximum provisions of
Accordingly, because the trial court sentenced Appellee, in contradiction to a proper reading of
Jurisdiction relinquished.
Justices TODD and McCAFFERY join the Opinion Announcing the Judgment of the Court.
Chief Justice CASTILLE files a concurring opinion in which Justice ORIE MELVIN joins.
Justice SAYLOR files a concurring opinion.
Justice EAKIN files a concurring opinion in which Chief Justice CASTILLE joins.
Chief Justice CASTILLE, concurring.
The Opinion Announcing the Judgment of the Court (“OAJC“) affords appellee the retroactive benefit of this Court‘s decision in Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007) (holding that mandatory minimum sentence required by
I.
As the lead Justices observe, this Court‘s decision in Dickson issued four months after appellee Oliver Foster was sentenced. OAJC Op. at 335. Yet, in its legal analysis, the Lead Opinion does not address the important fact that the
Under the plurality‘s redefinition, if a sentencing claim involves a non-discretionary decision by the trial court, then it can be argued that the claim (a) implicates the “legality” of the sentence; and (b) is impervious to both trial level issue preservation requirements and appellate briefing requirements governing discretionary sentencing claims.1 Simply stated, the plurality now equates illegality with non-discretion in sentencing. The Lead Opinion‘s new rule is unnecessary to resolve a case posing a distinct, and unique, retroactivity issue, but, worse, its mischief may be more global. Its pronouncement is a departure from precedent whose unavoidable result will be to multiply the number of potential claims that will be deemed “illegal,” irrespective of the plurality‘s claim that our jurisprudence regarding sentence illegality remains narrow. OAJC Op. at 344. Further, the plurality‘s redefinition will effect a radical rewriting of sentencing review practice, which will eviscerate trial level issue preservation requirements for both the Commonwealth and the defense. I respectfully believe that the unnecessary rule announced by the Lead Opinion is fundamentally in error and calls for a broader
I.A.
The issue in this case is the inevitable byproduct of this Court‘s decision in Dickson, which overturned twenty years of Superior Court precedent involving the mandatory minimum sentencing provision in
The Superior Court adopted a categorical approach derived from Section 9781,3 under which a sentencing claim either
Adopting an approach based on the so-called Section 9781 “dichotomy,” Foster, 960 A.2d at 163, to resolve this appeal is problematic for two reasons. First, the statute, notably entitled “appellate review of sentence,” does not purport to address trial level issue preservation doctrines, and the statute certainly does not purport to address retroactivity concerns arising from new decisional law. The statute exists merely to regulate the manner in which sentencing issues are approached on direct appeal.
Second, the categorical “illegal versus discretionary” formulation of the appellate review statute does not account for the complexity of issues that arise in the direct review sentencing realm. Under prevailing law, there are at least three common types of sentencing complaints, two of which can easily be squared with Section 9781‘s illegal sentence/discretionary sentence labeling, and one of which cannot be labeled as easily. The classic claim of an illegal sentence is where the sentence exceeded the statutory maximum for the offense(s). See, e.g., Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003) (“An illegal sentence is one that exceeds the statutory limits.“). A court is simply unauthorized to impose such a sentence. Another example of a clearly illegal sentence is one imposed by a court lacking jurisdiction. See, e.g., Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994) (court lacked jurisdiction in 1990 to order probation retroactive to May 1988, purportedly to correct “clerical error” in appellant‘s original sentencing and parole orders, which were recorded and unchallenged); Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901, 903-05 (1981) (sentencing court lacked authority to revoke probation imposed under repealed act and imprison defendant, following his acquittal by reason of insanity).
The classic claim deemed to implicate discretionary sentencing is that the sentence imposed, though within the overall statutory maximum and though imposed by a court cognizant of the Sentencing Guidelines, is clearly unreasonable. See, e.g., Commonwealth v. Davis, 737 A.2d 792 (Pa.Super.1999); Commonwealth v. Goodson, 365 Pa.Super. 24, 528 A.2d 997
But, as any experienced appellate criminal law practitioner knows, there are a multitude of claims that do not fall neatly into either of these statutory extremes. For example, by statute, a sentencing court is obliged to consult, but is not obliged to follow, the Sentencing Guidelines, so long as it explains its reasons for deviation from the Guidelines.
The Lead Opinion assumes that the two Section 9781 categories—discretionary and illegal—are sufficient to encompass all claims in the sentencing realm. In my view, however, the resulting artificial burden on the courts, and in particular on the Superior Court, to devise strained interpretations in order to fit a third category of claims into either the discretionary or legality paradigm points out the need for a more nuanced approach.
I.B.
By failing to recognize this complexity, in reaching the present result, the Lead Opinion has significantly redefined the concept of “illegal” sentence to include all but purely
In this regard, it is worth emphasizing that Section 9781‘s simple briefing dichotomy applies to the Commonwealth no less than to the defendant. By both redefining the concept of sentencing legality, and then effectively importing Section 9781 into the trial level issue preservation realm and making it dispositive, the Lead Opinion creates a prospect that the Commonwealth will not need to preserve its own “non-discretionary” sentencing claims in the trial court—by notice to the defense where statutorily required, contemporaneous objection where required, and/or by post-sentence motion, as generally required. If the definition of “illegal” really is “non-discretionary,” as the plurality now holds, and if illegal sentences are not subject to trial level waivers, as the plurality also holds, the Lead Opinion has significantly recalibrated the post-trial and appellate landscape where sentencing claims are concerned.
The trial court‘s determination of an appropriate sentence is inherently discretionary, and deference to the trial court‘s on-the-spot assessment is crucial, which no doubt is why the General Assembly undertook to make review of discretionary sentencing decisions more difficult. In the trial court‘s discretionary formulation, however, there are a myriad of non-discretionary responsibilities. Even if I could agree that all
II.
For purposes of issue preservation at the trial level, it is obvious that there are concerns beyond the labeling of a sentencing claim as non-discretionary. A classic claim of sentencing “legality” is obvious, undeniable, and capable of even administration, so much so that the claim may be raised sua sponte. A court either has jurisdiction or it does not; a sentence either exceeds the statutory maximum or it does not. Review of a docket and the relevant governing statute establishes the claim. But, many other non-discretionary sentencing claims are not so obvious or indisputable. The claim here is an example. The applicability, or inapplicability, of the Section 9712(a) firearms mandatory sentence is not obvious from the conviction and a consultation of the statute; it depends, intensely, upon the facts. Those facts can be disputed at trial. Obviously, then, this is the sort of claim that the defendant (or the Commonwealth, as the case may be) should dispute, both timely and on the record. Retroactively labeling the claim as one implicating sentencing “legality” does not alone warrant passing upon a claim not forwarded below.
In prior cases, I have cautioned against simplistic and monolithic approaches to claims that a sentence is illegal, and thereby is not subject to procedural default, and this case presents a good example of why more precise weighing is
Resolution of this question requires balancing competing interests: on the one hand, the nature and importance of Dickson—a case offering this Court‘s first and definitive construction of the reach of a statute that, in some instances, severely restricts judicial discretion in formulating a sentence—against a judicial procedural default rule—the requirement of issue preservation.
For my part, I would reach the substantive issue—entitlement to the retroactive application of Dickson—not because appellee‘s sentence was “illegal,” but because the claim involves a sufficient value that, under the peculiar circumstances here, our judicial issue preservation doctrine may properly stand down. The default doctrine applicable here is a judicial construct, made via procedural rules and practices, to carry out the orderly functioning of the appellate process. See
Dickson overruled two decades of Superior Court precedent on the proper interpretation of Section 9712(a). The practical and salutary purpose of contemporaneous objection requirements is to assure immediate correction (or avoidance) of error, and thereby to provide justice immediately, and to forestall appellate issues and minimize appeals in their entirety. And, appellee obviously could have preserved a challenge to the governing Superior Court authority under Section 9712(a) in the hope that this Court might finally review that precedent. But, such a protective objection would not have
On the other side of the equation is the importance of the decision that, appellee claims, should be applied retroactively for his benefit. In my mind, two aspects of Dickson weigh in favor of retroactive application here. First, is the fact that the decision—whether right or wrong (I was in dissent in Dickson)—was not a mere adjustment of a judicial rule, but instead was this Court‘s first and definitive interpretation of the intended reach of Section 9712(a). Under our precedent, that statutory interpretation becomes a part of the statute from the very beginning, and therefore, the interpretation plainly may be afforded retroactive effect. See Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 22 (2007); Kendrick v. Dist. Attorney of Philadelphia County, 591 Pa. 157, 916 A.2d 529, 537-41 (2007); Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838, 844 (2002).
Second, is the fact that the statutory provision at issue operated to deprive the judiciary of its traditional power of discretion in sentencing. For retroactivity purposes, Section 9712(a) obviously is not of the same order as a statute defining criminal conduct. Contrast Kendrick, 916 A.2d at 539 (“A person does not run afoul of Pennsylvania criminal law unless he violates a specific statute; and when this Court holds that a statute does not encompass certain conduct, we do not have a ‘choice’ in determining whether to give retroactive effect to our holding.“). But, neither is the statute purely procedural. And, at least in a case like this one, where the length of the minimum sentence imposed was wholly a function of the statute (the standard range of the Guidelines called for a minimum sentence of twenty-two to thirty-six months, and the court gave no indication that it believed an upward deviation would otherwise have been warranted), its effect is to prevent the court from fashioning an individualized sentence that
A third factor weighing in favor of allowing the statute, as construed in Dickson, to operate retroactively despite waiver of appellee‘s claim is that it does not disturb any legitimate reliance interest on the part of the Commonwealth. The effect of a mandatory sentencing statute in a case where there is no argument that a sentence greater than the mandatory is warranted is to make sentencing a rote exercise. Applying Dickson and remanding will not dictate that any particular sentence be imposed, but instead, will require discretionary, individualized resentencing by a judicial officer, according to default sentencing norms, just like in the vast majority of criminal cases. On the other hand, refusing to apply Dickson consigns appellee to serve a non-discretionary, mandatory sentence even though, under this Court‘s prevailing interpretation in Dickson, the General Assembly did not intend to remove judicial discretion in this instance. On balance, I do not believe that our trial level default doctrine should be enforced.
Fourth and finally, I believe retroactive application of Dickson in the face of trial level default is appropriate because appellee‘s case was not yet final, but was pending on direct appeal when Dickson was decided, and appellee promptly raised his claim soon after the decision. Obviously, other considerations and values, beyond the requirement of contem-
III.
For these reasons, I concur only in the judgment, and I would affirm the decision of the Superior Court to vacate and remand for resentencing, albeit on different grounds.5
Justice ORIE MELVIN joins this opinion.
Justice SAYLOR, concurring.
I agree with the lead Justices that Appellee‘s sentencing challenge should be vindicated, regardless of the issue-preservation difficulty. To the degree their opinion reflects that review of legality-of-sentence claims has been made available in limited categories of cases beyond those involving claims
To the extent, however, the lead opinion conceives a rule of general application and/or sanctions, as the reviewability litmus, application of the dichotomy between claims of legal error and discretionary aspects of sentencing as embodied in Section 9781 of the Sentencing Code, I hold a different view similar to that of Mr. Chief Justice Castille.
In many jurisdictions, the doctrine of plain error serves as a safety valve to allow the vindication of compelling claims for relief from criminal sanctions, where the interests of justice require, despite failures to raise and preserve them. See, e.g.,
The ”per se” language, however, was imprecise, perhaps necessarily. Further, in the aftermath, courts did not always use this limiting language. On the one hand, “unlawful per se” was often shorthanded to “illegal,” thus opening the possibility for reading the maxim as applying to a far broader category of cases. On the other hand, courts attempted to confine the precept very narrowly to claims that a sentence exceeded a statutory maximum. See, e.g., Commonwealth v. Miller, 541 Pa. 531, 562, 664 A.2d 1310, 1325 (1995) (“As long as the sentence is within the statutory limit, it is legal.“), abrogated on other grounds by Commonwealth v. Freeman,
I believe the “illegal per se” language, although imprecise, better captures the thrust of the limited waiver exception pertaining to criminal sentencing, while distinguishing the analysis from the legality/discretion dichotomy governing the presentation of appellate claims under the Sentencing Code. I also agree with Chief Justice Castille that assessment of whether additional categories of claims will qualify is necessarily an evaluative one—which must account for the interest of finality in the administration of justice in addition to fundamental fairness to the defendant. The appropriate balance of these important interests remains a difficult subject, upon which reasonable minds often disagree.
Here, I believe a sentence imposed pursuant to a statutory mandatory minimum requirement which, by its plain terms, simply did not apply should be regarded as structurally illegal per se. In the circumstances, it seems a modest imposition on the government for Appellee‘s sentence to be revisited so that the due consideration of his individual circumstances may be afforded, within the sound discretion of the common pleas court.
Justice EAKIN, concurring.
There is a difference between something that is wrong, and something that is illegal. For the reasons expressed in my dissent in Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95, 113 (2007), I disagree with the lead opinion‘s holding that appellee‘s challenge implicates the legality of his sentence and thus cannot be waived. “An illegal sentence is one that exceeds the statutory limits.” Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003) (citation omitted). Appellee was sentenced to five to 10 years imprisonment for robbery; the maximum sentence for this first degree felony is 20 years. See
The trial court believed it had to impose a five-year minimum sentence, which may in post-Dickson hindsight make the sentence erroneous, or based on erroneous considerations. However, this makes the claim worthy of relief—it does not make the sentence illegal. The court retained, retains today, and will retain tomorrow, the discretion to impose any maximum term up to 20 years—it may legally sentence appellee to five to 10 years again. Dickson holds that a five-year minimum is not mandatory in cases such as this—it does not say a five-year minimum is illegal.
Wrestling the plain language of our jurisprudence to force this round peg of lack of discretion into the square hole of illegality is pointless and wrong. As long as it remained within the lawful range, the sentence was not illegal, no matter how incorrect later cases find the reasoning behind imposing a five-year minimum to be.
I agree with Mr. Chief Justice Castille‘s view that this case concerns retroactivity, and the lead opinion has needlessly redefined illegality in order to ensure application of Dickson to the present matter. I do not object to retroactive application of the result in Dickson, but let us grant relief without twisting plain words into something they are not.
Chief Justice Castille joins this concurring opinion.
Notes
(a) Right to appeal.—The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal.—The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
But the plurality‘s condemnation of my position derives from its own misperception of my global position. This Court obviously may adjust its procedural rules respecting issue preservation. The plurality may have rendered a simple and definitive rule, as it says, but it is an ad hoc rule that, in my respectful judgment, fails to see the bigger picture, and will cause collateral confusion. As I have explained, this sentence was legal when imposed and appellee failed to challenge it. Dickson was then decided four months later, and appellee sought application of Dickson to reduce his sentence. Under these circumstances, both the doctrines of retroactivity and waiver are implicated. I am decidedly in favor of properly assessing issues and values, irrespective of the parties’ arguments, rather than restricting our review. In this preference, I have solid company. See Freed v. Geisinger Med. Center, 5 A.3d 212, 215 (Pa.2010); id. at 218-19 (Castille, C.J., concurring). As always, the issue is not whether we may consider broader principles, but whether we should. We are not sitting here in mere error review, and I believe the broader principles I have discussed are fairly implicated.
We agree with the concurrence that the general rule in Pennsylvania is that this Court‘s initial interpretation of a statute becomes part of the statute itself, and thus relates back to the statute‘s date of enactment. See e.g. Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 22 (2007). This notion is not clearly dispositive, however, because it does not speak to issue preservation. Indeed, Pennsylvania courts have adhered to the general principle that parties are only afforded retroactive application of a decision of this Court if the identical issue was properly raised and preserved “at all stages of adjudication up to and including direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983); see also Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552, 555 (1999) (finding that a party is entitled to retroactive application of a decision on direct appeal where the issue involved was preserved at all stages of the litigation, including direct appeal). Moreover, while a decision involving criminal law must be applied “to all criminal cases still pending on direct review,” Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the defendant must have preserved the legal challenge in the trial court to be entitled to retroactive application of the new decision. Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351, 359 n. 32 (2005). Should, however, the relevant issue be one classified as “nonwaivable,” (as we have determined here) concerns regarding issue preservation are not implicated. Id.
That said, we must respectfully, yet strenuously, note our concern with the concurrence‘s conclusion that “as the creator of this issue preservation/waiver doctrine, this Court is certainly empowered to modify or excuse it whenever greater jurisprudential values are at stake.” Concurring Op. at 536, 17 A.3d at 353 (Castille, CJ., concurring). As noted throughout its opinion, the concurrence warns against ignoring principles of issue preservation, yet does just that by disregarding decisions such as Schriro and Roney in an effort to create an amorphous, yet equitable, decision based upon a “balancing of values” vis-à-vis retroactivity. Id. at 527, 17 A.3d at 347-48. Contrarily, our holding today follows solid and established principles of law, affirms at least a decade of Superior Court jurisprudence by way of a thorough analysis, which heretofore this Court had not undertaken, and provides a definitive rule in this area of the law for both bench and bar.