Commonwealth v. Kleinicke

Norton, e.g., m complies respects United States v. 867 F.2d all with Spencer. (11th Cir.1989); Therefore, v. United agree Butler I Appellant do not is (5th States, Cir.1958); F.2d Bowen entitled new trial. (8th States,

v. United 153 F.2d 747 Cir. reasons, 7 For the I foregoing respect- 1946). The Court that an Bowen reasoned fully dissent. appropriate supplemental charge may serve to avoid the time of a expense

re-trial, especially guar since no there is

antee that a retrial will produce less Bowen, jury.

divided 153 F.2d at 752. The

Court concluded that informa unsolicited

tion from in not sufficient Likewise,

of itself to warrant retrial. Id. the Eleventh in Circuit Norton concluded Pennsylvania, COMMONWEALTH that the supplemental trial court’s instruc Appellee, tion permissible was that it not “an exhortation the minority to reexamine its majority....” views deference to the KLEINICKE, Appellant. E. William Norton, 867 F.2d 1366. These cases argue persuasively judge’s that a trial Superior Pennsylvania. jury’s knowledge simply division one factor determining to be considered in Argued March legality supplemental charge. aof 8, 2006. Filed March majority 6 The relies United Sae-Chua, (9th States v. F.2d

Cir.1984), authority persuasive for its Sae-Chua,

disposition of this matter. matter,

as well as in the instant the judge minority juror’s identity. aware of the

Likewise, juror was aware that

judge juror’s identity. knew the While I

agree majority with the these are

significant factors be considered de-

termining supplemental charge whether verdict, I they

coerced a do not believe are

sufficient to warrant a reversal the in-

stant matter. That the trial did not

inquire jury’s should, as to the division

my view, carry significant In ad- weight.

dition, I that an appellate believe court

should be wary speculating

psychological of a Spencer charge effect jurors minority

was to coerce to surrender view, majority especially where

explicit charge comply fully terms of guidelines.

with Spencer trial that, view,

judge gave my an instruction

imposed after he was convicted of posses- sion with intent manufacture a con- substance, marijuana, trolled violation 780-113(a)(30). § 35 P.S. This conviction five-year carried a maximum un- sentence 113(f)(2). § der 35 Due penal- P.S. 780— possession ties applicable to of various marijuana imposed pursuant amounts of 7508, Appellant’s § 18 Pa.C.S. minimum sentence was increased be coextensive with his maximum sentence.

¶ 2 In appeal, we consider whether Appellant’s violated the Supreme sentence Court’s v. pronouncements Apprendi 466, 2348, Jersey, New U.S. 120 530 S.Ct. Blakely L.Ed.2d 435 and v. 296, 2531, Washington, 542 U.S. S.Ct. (2004). 159 L.Ed.2d After re- careful view, principles we that the for conclude which these stand were not implicat- cases § in- merely ed because Pa.C.S. minimum creased the and Appellant’s term of imprison- maximum ment au- jury’s thorized verdict under 35 P.S. Therefore, § 780-113.1 we affirm. 31, 2001, police 3 On August executed Appellant’s search warrant residence at 16651 Hill Round Church Road France, Douglas York, P. for appellant. Stewartstown, Hopewell Township, York McCabe, Scott A. Asst. Dist. Atty., County. The warrant was based search York, Com., appellee. upon an probable affidavit of cause dated 31, August 2001, prepared by and Penn- HUDOCK, BEFORE: FORD sylvania B. ELLIOTT, JOYCE, Craig Police Officer MELVIN, State ORIE KLEIN, BENDER, BOWES, The affidavit averred the Fenstermacher. GANTMAN, PANELLA, following: Fenstermacher met Officer JJ. (“Cl”) with a informant confidential who BOWES,

OPINION BY J.: knew aware that Appellant, Appellant ¶ 1 marijuana William E. Kleinicke appeals grew from from sold his resi- judgment dence, years of sentence of five observed Appellant and had sell $50,000 imprisonment marijuana fine that was on at least fifteen occasions. Recently, panel, Pennsylvania’s unanimous which con- di and another of on Panella, statutes, Judges Lally-Green, sisted Mitchell, Kelly, § came to the identical conclusion as this Pa.C.S. 9712. Commonwealth panel regarding impact Appren- (Pa.Super.2005). en banc 883 A.2d 1096 Ap- that jurors found possessed. Eleven Appellant’s address Police confirmed marijuana plants, pellant possessed 693 through driving record and within his the Common- 2001, juror concluded that but one days August conducted three only proven Appellant pos- had utilizing wealth buy at that location a controlled marijuana which plants, fifteen live also had sessed the Cl. Officer Fenstermacher had actually been was the number Pennsylvania Trooper spoken with State Schriver, infor- Bradley who had received tested. Appellant

mation was involved with Appellant proceeded Finally, approxi- controlled substances. January where the mately years prior application three possessed Appellant court concluded warrant, Fenster- search Officer finding, Based on this plants. 693 live confi- macher had been told another a flat sentence Appellant was sentenced to dis- Appellant dential informant that was $50,000 and a years imprisonment of five marijuana tributing from his residence. post-sen- Following the denial of fine.2 fact, indi- Appellant’s history In criminal motions, Appellant ap- filed a direct tence charged pos- had cated that he been with three-judge panel, A peal to this Court. in 1985 session of a controlled substance judge dissenting, a with one issued memo- accepted and had been into accelerat- affirming judgment of randum decision disposition program ed rehabilitative banc, granted review. sentence. We m time. raises two issues: Appellant now warrant, 4 During execution of the court’s sentence of 1. Whether marijua- police sophisticated discovered (5) to a sentence of five Kleinicke they na-growing operation; seized 693 years incarceration for 51 more marijuana areas plants Appel- from four of marijuana plants pursuant live to 18 shed, property, including lant’s a room unanimity § of Pa.C.S. 7508 without home, field, and underneath his an outside plants of jurors to the number as specially grow marijua- a room to outfitted violated Kleinicke’s sixth amend- Appellant charged na. was arrested and by jury to trial as delin- right ment possession with with intent manufacture Washington, eated in 542 substance, marijuana, in controlled viola- 296, 124 S.Ct. 159 U.S. 780-113(a)(30). § of tion 35 P.S. Of (2004)? 403 L.Ed.2d seized, plants test- plants 693 fifteen were correctly [panel] deter- Whether ed. the chal- mined Kleinicke waived lenge validity of the affidavit hearings disposing of pretrial After on the probable premised of cause Appellant’s request suppression evidence, purported informant’s proceeded to trial confidential the case where claim was de- statement because the violating convicted of Appellant was 113(a)(30). not included pendent upon § material pre- In order to P.S. 780— in the when was sentencing challenge, certified record present serve his in not included the certified record jurors polled that the Appellant asked § 1921 due to pursuant had to Pa.R.A.P. plants number of live he as addition, years imprisonment. guideline sentencing in was five 2. The form the record transcript five Appellant was sentenced to reflects that indicates that However, imprisonment. years ten this years Appellant im- to five court sentenced 1/31/03, because the maximum statu- form incorrect Sentencing, at 65. prisonment. N.T. above, case, tory this as outlined sentence an negli- inadvertent mistake or mum an sentence and increase a mini- gence part on the York of the Coun- mum sentence United States ty Clerk Courts in the function Court precedent applicable to the Sixth duty. their official right to a Amendment trial. Appellant’s at 3. brief begin analysis 9 We with an York, holding seminal v. New We first set forth the facts Williams neces- sary U.S. 93 L.Ed. Appellant’s review S.Ct. (1949).5 Marijuana import claim. I This case is of vast drug is Schedule but as a drug. classified narcotic There- area because it creates funda- fore, the maximum Appel- applica- sentence mental distinction terms of the right § lant’s tion conviction under 35 P.S. 780- Sixth Amendment 113(a)(30) years five as imprisonment, process trial between the of conviction 113(f)(2).3 Williams, § Ap- process outlined 35 P.S. sentencing. 780— later, pellant’s impacted retains precedential discussed its 7508(a)(l)(iii), § authority pro- regard point Pa.C.S. which with and is part notwithstanding vides relevant analysis present vital to constitu- other if any statutory provision, person challenge. tional 113(a)(30), § is convicted of P.S. 780— Williams, In the defendant was n marijua- the is when controlled substance of in convicted murder committed the of marijuana na and “when ... the amount applicable burglary. course of a Under plants,” involved is at least 51 the live law, jury’s New York the determination of years minimum sentence shall in be five guilt types punishment, fixed the of but Thus, prison. on application based of the sentencing court had broad discretion 7508(a)(l)(iii), § mini- Appellant’s Pa.C.S. permissible range to within the sentence mum converged sentence with his maxi- upon jury’s based determination the of sentence, imposition mum requiring of a Williams, guilt. the sentence mur- years.4 flat sentence of five imprison- der either could have been life death, ment or while the recom- and Appellant maintains on appeal sentencing life the imprisonment, mended years that his minimum sentence of five justi- court As a death sentence. implicates imprisonment the United States fication, the utilized information court holdings Apprendi v. Court’s 2348, gleaned probation department from a re- Jersey, New 530 U.S. 120 S.Ct. port, which included accusations the 147 L.Ed.2d 435 and defendant had committed numerous other Washington, 542 U.S. 124 S.Ct. (2004). of reject burglaries. not convicted those Appel Though 159 L.Ed.2d 403 We crimes, key lant’s because is the had admitted com- challenge there defendant an and mitting burglaries distinction between increase a maxi- some of the had Normally, practice 3.That section states: 4. in this Common- (12), (14) is that Any wealth the minimum sentence cannot person who violates clause or (30) (a) respect ... sentence. subsection with exceed one-half of [a]ny 9756(b). other controlled substance or counter- § 42 Pa.C.S. I, II, feit substance classified in Schedule III, guilty felony aof conviction dissent, Judge to ac- In his Bender fails imprisonment thereof sentenced shall be knowledge either the Williams decision or the exceeding years, pay not five or to a fine legal authority pursuant it fact that retains exceeding not fifteen thousand dollars language Blakely. ($15,000), or both. ceedings, of oth- which involved considerations perpetrator been identified as the assessing report also listed other behavior an individual’s characteristics ers. sentencing that the court The Court appropriate punishment. defendant demonstrating characterized neces- ruled individualized perverse defendant had sexual tastes sarily the information weighing entailed society. was a threat sentencing court in the case utilized it. before ¶ 11 use challenged The defendant in the report information contained ¶ 14 also The Williams Court observed grounds, due that he process arguing practical sup- reasons to that there were

had not been able to confront cross- port imposition divergent rules for trial supplied the examine the witnesses who trial, sentencing. question and for At pertinent data. The States Su- United is, guilty of hav- a defendant “Whether preme analyzed pro- whether due conduct of ing engaged certain criminal during cess concerns trial also applicable accused,” specifically he been which has a sentenc- controlled manner which is not confined while ing guide court could information obtain instead, guilt;” task “[h]is “issue it when within the imposing lim- within fixed or constitutional statutory range fixed verdict. type extent of its is to determine It noted under state scheme punishment guilt the issue of has after reviewing, court was Highly determined. relevant —if been permitted variety to consider a of evidence appropri- essential —to his selection regarding background, the defendant’s possession sentence is the fullest ate health, conduct, past mental and individual possible concerning information defen- in fashioning characteristics sentence. at life characteristics.” Id. 247- dant’s ¶ 12 The Williams Court chronicled (footnote omitted). 48, 69 S.Ct. evolution of the common law that Supreme Court declared The of the United States Britain and ob- paradigm imposing the modern of individu- conventions, early many served under sentences mandated that sen- alized criminal in an convictions resulted auto- rely all in- tencing upon “pertinent court matic of sentenc- death. Modern formation,” if could not be obtained which departed ing approach from this draconian “rigid was adherence to restrictive there humanely and focused more on individual- applicable to the properly rules of evidence Thus, sentencing. ized under modern It Id. con- trial.” at 69 S.Ct. 1079. rule, sentencing courts were authorized cluded: many legislature consider sources determining types to aid in evidence sentencing judges deprive To punishment appropriate as the extent would undermine kind information long punishment was as policies procedural penological modern limits law.” Id. “within fixed adopted cautiously been that have S.Ct. throughout the after careful con- nation We experimentation. upholding the sentence sideration 13 In most of the informa- Williams, recognize Supreme States must United guide by judges tion relied there was a historical now Court concluded that imposition sen- intelligent trial them the different rules to applying basis if informa- be unavailable tences would wherein defendant proceedings, given to that were restricted sentencing pro- tion guilty, opposed found open court subject witnesses to cross- the constitutionality § of 42 Pa.C.S. examination. under the Fourteenth Amendment’s due process clause, 249-50, importing Id. at Sixth S.Ct. 1079. Amendment’s guarantee. trial Sec- ¶ 16 Williams stands for proposition tion requires imposition of a man- that a sentencing court has broad discre- datory minimum sentence of years five tion to consider evidence6 in determining a upon a defendant’s conviction of one of long sentence as as that sentence is within several ceiling enumerated if by jury’s fixed crimes finding guilt sentenc- beyond a trial, ing reasonable doubt court at a determines the sub- defendant “visi- ject to all the process guarantees due con- bly possessed a firearm” during the com- tained the United States Constitution. mission of the crime. The defendants in A distinction thereby created between argued McMillan possession that visible trial and sentencing purposes a firearm anwas element of the crimes for Sixth right Amendment trial.7 which they had been sentenced and there-

¶ 17 fore had however, proven beyond Individualized to be sentencing, a reasonable was not without its inequities. On occa- doubt. sion, there were wide disparities in sen- ¶ 19 rejected Court tencing based on the proclivities individual argument on the rationale that the Penn- of a sentencing judge rather than the more sylvania Legislature chose not to make proper applied considerations to be at sen- possession visible of a firearm an element

tencing such as the severity of the crime of the offenses listed section 9712. In background of the defendant. Leg- doing, so the Court noted that states have islatures attempted to redress this concern considerable latitude in “defining crimes by placing some judicial limits on discre- and prescribing remedies.” Id. at tion. In Pennsylvania, one attempt at Nevertheless, S.Ct. 2411. such a restriction McMillan was the passage of man- datory acknowledged sentences. there are due process place concerns that constitutional ¶ 18 can guidance We find in the man- limits on state authority in this context. datory-minimum area with the United Specifically, the Court observed that state Supreme States pronouncement Court’s legislatures strip cannot criminal defen- McMillan Pennsylvania, 79, 477 U.S. innocence, dants of the presumption of re- 2411, 106 S.Ct. 91 L.Ed.2d 67 which prosecutors lieve of the burden of proving particularly instructive as it dealt with a guilt, or give trial court Pennsylvania judges unlimited sen- tencing power to virtually punishment statute enhance the indistinguishable to be from the current imposed statute under review. whenever the state a obtains con- Specifically, the McMillan Court examined viction. After weighing these consider- 6. The defendant must be informed Judge of the evi- 7. Bender makes the rather broad state- sentencing judge dence the ment that this considering distinction somehow allows so imposed "manner in which the sentence is [to opportunity that he has challenge an its beyond be] constitutional restriction.” Dis- Florida, accuracy materiality. Gardner v. page sent at 585. We consider in this deci- 349, 1197, 430 U.S. 97 S.Ct. 51 L.Ed.2d 393 right sion Sixth Amendment to a (1976). precedential Williams’ value with re- regard increasing trial with to a factor a mini- gard application to the penalty of the death mum sentence and not other constitutional significantly has been by subsequent eroded guarantees may apply that sentencing to the rulings. Court process. firearm, in New Jer- McMillan ations, was classified concluded that which Court degree punishable a offense sey 9712 was constitutional because as second section statutory imprisonment. Under years did increase five to ten committed, statute, “hate penalty for the offense create as the separate described separate separate calling pen- law, imprison- crime of crime” an additional term alty, until a had been if found apply defendant the trial court imposed ment was particular crime for which that convicted of of by a the evidence preponderance Id. at 87-88, he was to be sentenced. in order a crime the defendant committed S.Ct. 2411. group an individual or to intimidate race, color, gender, due to individuals Supreme Court Significantly, orientation, or handicap, sexual religion, disapproved of the notion that expressly ethnicity. permitted The extended term prove every must fact that im- state per- law by the hate crime increased “severity pacts upon punishment” for second- range missible sentences Id. at 84, a reasonable doubt. twenty degree to between offenses ten view, In accordance with S.Ct. that the years. The trial court concluded McMillan Court declined invalidate to in- committed the crime defendant had operates solely because “it section 9712 the offense timidate victim that discretion in limit the court’s there- racially motivated. The court range selecting penalty within the al- ” in- the defendant fore sentenced Id. to it ready available .... by applying imprisonment creased term Therefore, although the S.Ct. 2411. stat- hate law. crime clearly “‘ups ute ante’ for the defen- by raising years ... the mini- dant to five ¶ 22 Supreme Court concluded The may mum sentence which re- process rights due the defendant’s within the Court con- plan,” quired jury to determine the existence cluded that it did not violate the defen- maximum sen- racial motivation since his Id. to due of law. right process dant’s hate increased under the tence had been Dunnigan, See also United States v. the hate crime It observed that law. U.S. 113 S.Ct. 122 L.Ed.2d 445 defendant, statute, applied crime (1993) (sentence provision upheld even actually the maximum with- doubled it increased minimum sentence if though could exer- in which the per- court found defendant committed Apprendi his cise discretion. jury). clarifying on the position its (other prior con- “any fact than held such as validity factors visi- viction) pen- increases the maximum firearm, ble the Court reit- possession in an alty charged must be for a crime no the maxim that “there is erated Sixth prov- indictment, jury, submitted sentencing, right jury even Amendment Id. at reasonable doubt.” en a specific sentence turns on find- where the added) 476, (emphasis 120 2348 S.Ct. McMillan, 93, supra at ings fact.” 106 States, 526 U.S. v. United (quoting Jones S.Ct. 2411. 227, 6, 1215, L.Ed.2d 119 143 243 n. S.Ct. (state (1999) maximum law increased 21 minimum 311 The distinction between suf- degree of harm and maximum sentences is at the heart of sentence based not Therein, finding and that Apprendi fered victim decision. the de- by jury)).8 made possession of a a fendant was convicted 1219, 224, 350 L.Ed.2d States, U.S. S.Ct. 140

8. 118 In Almendarez-Torres v. United Apprendi set ceiling jury did not announce a de- mum verdict do not Indeed, in parture analysis. constitutional violate a defendant’s Sixth Amendment Apprendi’s easily outcome predicted trial; right cemented Harris McMillan, which, language in as key in distinction between increases mini- noted, disapproved statutes that in- in mum sentences and maximum increases maximum creased sentences without sentences. jury’s Significantly, participation. ¶ 25 in Blakely The decision did Apprendi holding Court in reaffirmed the implicate McMillan or Harris. A Williams, stating nothing that in the understanding requires clear an history of the right to a trial would analysis applicable guideline of how the suggest impermissible it “is on impacted scheme maximum sentences. judges to exercise into taking discretion — Washington legislature The state had en- relating consideration various factors both acted a reform act that delin- imposing offense and offender—in range judgment prescribed by ranges within the presumptive guideline setting eated Apprendi, supra statute.” 120 forth maximum sentences. Under that (emphasis original) (citing S.Ct. act, judge impose could Williams, supra). range excess of the standard only if judge found substantial and States, 24 In Harris v. United an compelling justify exception- reasons to U.S. S.Ct. 153 L.Ed.2d 524 exceptional al An sentence. sentence was years merely ago, decided three factors, Apprendi no sanctioned when certain dif- Court left doubt that did not holding computing erode the The ferent McMillan. stat- from those used provided ute at issue in sentence, Harris an range present. standard were in the if increase minimum sentence strict guidelines placed The thus limita- sentencing court determined that the de- given tions on discretion the sen- during fendant brandished a firearm tencing operate court to within the maxi- of an The commission offense. Harris mum of a crime’s classification. rejected a expressly challenge Court to the specifically observed holding Appren- of McMillan based operated that the reform act justices di decision. Four reasoned that judge “limit of sentences a Apprendi apply did not because the stat- 299, impose.” Id. at S.Ct. [could] ute under consideration in Harris involved Thus, Washington’s under sentenc- increase a minimum sentence rather scheme, only ing when the than an increase in a maximum sentence. conjunction guidelines were considered justice Apprendi One decided that should did with the crime’s classification the “le- not be extended to minimum sentences due gal maximum” reveal itself. practical consequences adverse Blakely, pleaded 26 In the defendant his conclusion the Sixth Amendment wife; in guilty kidnapping Washing- his permitted apply sentencing fac- ton, felony was a with maxi- kidnapping holding tors. The of Harris could not be years. of ten mum authorized sentence clearer minimum sen- agreement, plea tences are within the maxi- Under the defendant’s (1998), by prior rejected the Court a a convictions sen- constitutional defendant's upon challenge tencing holding This rests statute that increased the maxi- court. imposed unique a of mum sentence that could role recidivism in finding crime based a the number of arena. a by a standard maximum sentence was creased fact included within a forty-nine fifty-three Thus, months. At the Su- guilty plea. verdict hearing, the victim about the cir- testified preme expressly Court reaffirmed crime. As a result of cumstances au- McMillan and remain solid Williams testimony, judge her concluded that right in the thority Amendment Sixth the defendant had acted with deliberate arena.9 jury trial cruelty, statutorily-allowed one 29 The federal scheme grounds involving in a departure case in the state Booker was identical to issue im- domestic violence. The then Blakely. in Booker scheme addressed The maximum, posed ninety-month a over sentencing guide- federal Court considered years in of the three excess maximum enacted a federal stat- range. lines under the standard guidelines ute. The were Supreme Blakely 27 The Court ranges relating to delineated maximum found a violation of the defendant’s Sixth drug possession. particular That sentenc- right a Amendment trial because required the court to sentence ing scheme “statutory in- maximum” to increased time on the a defendant based fact, on a creased based the existence of greater possession quanti- defendant’s cruelty, deliberate that was not encom- passed the parameters jury. within of the defen- found ty drugs than that guilty plea dant’s and had not found been Jones, Blakely, Applying Apprendi, and by jury proof beyond based upon a rea- appli- the Court Booker concluded that though sonable doubt. Even the sentence guidelines a defen- cation violated ceiling punishment was within the fixed right tried dant’s Sixth Amendment to be by the crime’s as a felony, classification by jury under stan- the reasonable doubt “statutory maximum” could not be deter- dard. solely mined reference to the crime’s nothing inherently 30 There is contra- felony classification due to the manner in dictory between McMillan/Harris guidelines which the operated to restrict noted, Blakely/Booker. Supreme As range of the maximum sentence. consistently has a distinc- observed Blakely expressly distinguished maxi- increasing tion between McMillan because McMillan involved increasing mum and sentence within in a increase sentence. jury’s already maximum authorized Blakely Court further differentiated both every analyze case to verdict. McMillan and ground Williams question, the lodestar constitutional that “neither ... involved a sentence analysis application has of the statu- been greater than what state law authorized maximum, tory whether on the basis of the verdict alone.” (em- simply set forth a statute or whether Blakely, supra at 124 S.Ct. 2581 added). contrast, man- interplay between statute and phasis By Blakely, judge’s authority to in- datory guidelines practical sentence was creates the pronouncement any language face of direct to that It defies In the this clear effect. suggest persist logic Su- that Williams and McMillan that the United States argues precedent precedent, Judge preme Court have overruled sound Klein's dissent would expressly silentio when it had reaffirmed that the Court’s decision United sub Booker, year. precedent previous Further- States v. 543 U.S. 125 S.Ct. more, nothing apply 160 L.Ed.2d Williams Booker did more than overruled Blakely. year later and McMillan one and without 572

maximum.10 court; minimum specified by sentencing merely sentence prior sets date to which Pennsylvania 31 employs an in prisoner may not paroled); Common- sentencing determinate scheme. The sen Butler, 289, 294, wealth v. Pa. 328 A.2d tencing judge announces a consist 851, (1974) 854-55 (holding signifi- ing of a minimum and maximum sentence. cance of minimum sentences arises in con- (when § See 42 handing Pa.C.S. down eligibility parole). nection with In oth- sentence, a prison sentencing judge words, law, Pennsylvania er under specify period must maximum up to limit minimum sentence serves as baseline for authorized law and mini impose must possible Thus, early release.11 the Penn- sentence, mum which cannot exceed one- sylvania legislature establishes the statuto- sentence). However, half of the maximum ry possible punishment maximum for an the sentence that actually a defendant will offense. Statutes mandate serve is dependent upon whether he is limit sentences serve the sentenc- granted parole board, parole which ing regarding court’s discretion the man- authority has the expiration to do so after imposing ner or method of the minimum Thus, of the minimum. the sentence that sentence. the defendant will serve cannot be deter sentencing mined at because while lie will sentencing 33 Whether a scheme minimum, may serve the he up serve is indeterminate or determinate does not any the maximum or between. operation sentencing guide relate to the scheme, Under a determinate guidelines lines. can Sentencing be advi defendant is sentenced to a set number (mandato sory (voluntary) presumptive years imprisonment, otherwise called a ry) or somewhere between that broad “flat” sentence. In determinate sentenc spectrum. a presumptive Under or man states, ing parole has been abolished so scheme, datory guideline which was at is that the defendant will serve the sentence Booker, sue in deviation is handed down sentencing judge; only permitted very under narrow circum thus, the sentence can be determined at fully voluntary stances. Under or adviso that time. ry guidelines, court is ac corded broad discretion as to whether to

¶ 32 Pennsylvania law makes clear guidelines. consider the that a minimum sentence a guide serves as potential to the earliest release date. Pennsylvania’s guidelines operate See generally Rogers Pennsylvania Board somewhere in the middle. Sentencing Parole, 285, Probation and Pennsylvania 555 Pa. 289 courts must consider the (1999) 9721(b) (when 319, n. (stating guidelines. A.2d 321 n. im- Pa.C.S. punishment sentence, posing for criminal of “court shall ... consider confinement, period fense is maximum any guidelines sentencing adopted by ie., period Pennsylvania of incarceration Commission on Sen- Astronomo, course, imposition 10. As noted in United States v. 11. Of of a (D.C.Mass.2001), great importance F.Supp.2d minimum sentence is of and con Booker, the individual defendant and constitutes more firmed in United States v. 543 U.S. just guideline. than an administrative For 125 S.Ct. 160 L.Ed.2d 621 reason, intent the Commonwealth's changes drastic in the federal pursue mandatory minimum sentence is scheme application erased Williams’s in the subject specific requirements, notice which federal context. are not at issue in this case.

573 always maximum sentence is coex- See Commonwealth v. tential tenting.”). also (2002) Mouzon, au- Pa. A.2d 617 tensive with the maximum 812 Pennsylvania jury guilty verdict the (quoting House thorized the or (plurality) 21, 1978, in September plea. Journal guidelines that enacted “to stating were At we stress juncture, must

make criminal sentences more rational reper- potential significant adverse consistent, to eliminate unwarranted and in- any sentencing if factor that cussions sentencing, and to disparity restrict to be or sentences had creased enhanced give unfettered we sen- discretion In reasonable proven beyond a doubt. However, in tencing judges.”). Common- sentencing Pennsylvania, considering when Sessoms, 365, 532 v. 516 Pa. A.2d wealth terms, a court and alternatives (1987), our Supreme Court stated general princi- is to “follow instructed guidelines advisory. that the are call should ple the sentence that is with the confinement consistent departure 35 Guideline Penn gravity of the sylvania permitted protection public, is a much of the under more as on the employed impact relaxed standard than the one offense it relates system community, Washington the federal evaluat life of the victim and on ed in Pursuant to 42 needs defen- Booker. and the rehabilitative of the 9781(c)(3), 9721(b). § upheld § is if in- Pa.C.S. deviation This dant.” Pa.C.S. indicating supported reasons struction carries a mandate that the sen- not in light deviation is unreasonable when tencing findings court make relevant factors a court considers imposing example, sentence. For a 9721(b), pursuant § Pa.C.S. which sentences on whether the defendant based protection public, include the background is remorseful as well as his gravity of the as it relates offense A is personal circumstances. court life impact on the of the victim on the permitted to increase sentence when community, and the rehabilitative needs of than egregious facts of crime are more Smith, the defendant. Commonwealth typical of its nature and when crime (1996); see, 543 Pa. 673 A.2d e.g., accurately gravity offense does not score Galletta, Commonwealth v. 864 A.2d 532 Thus, criminal past. reflect defendant’s court (Pa.Super.2004) (sentencing per allows the sen- longstanding precedent our depart guidelines mitted from if tencing weigh to consider and vari- court record factual basis places spe mitigated ety imposing when factors fac supporting cific reasons decision under when aggravated guideline sentence and 9721(b) forth in tors set section Sentenc whether to sentence considering Code). fact, Court ruled ing the Booker guidelines. operate federal could guidelines

that the If enhance- 38 we held they, constitutionally long as like Penn impact ments that do voluntary guidelines, in na sylvania’s were fell verdict sentence authorized ture. Blakely, and Apprendi, the ambit of within Booker, Moreover, Pennsyl disruption serious the sentenc- what sets finding ing process from would result. Each apart scheme further those vania’s that “enhanced” a sen- Blakely/Booker sentencing judge under consideration have to sentencing guidelines arguably tence be submitted Pennsylvania’s would proven beyond a impaneled jury and sentencing ranges. to an delineate proceedings Sentencing Pennsylvania guidelines, po- reasonable doubt. Under Indeed, would become second represents trials. ment a drastic increase in sen date, defendants have continually as- tence not a paradigm. workable As far serted that the various factors considered concerned, as a defendant any increase by sentencing our courts to enhance a jail time would be drastic. See Com sentence within or in excess of guide- O’Berg, monwealth v. 584 Pa. 880 A.2d lines must jury beyond be found (2005) (discussing “short sentence” ex reasonable doubt under Apprendi and ception holding in Commonwealth v. Blakely. panel Each to consider this con- Grant, 572 Pa. 813 A.2d 726 See, rejected tention has it. e.g., Com- concluding that it was too ambiguous to Moss, (Pa.Su- monwealth v. 871 A.2d 853 give any the lower guidance courts as to per.2005); Druce, Commonwealth v. 868 what sufficiently sentence would be short A.2d 1232 (Pa.Super.2005); Common- apply exception). Smith, (Pa.Su- wealth v. 863 A.2d 1172 ¶ 41 Mindful all implications per.2004). holding today, our we conclude for the ¶ 39 The Williams decision is rooted following mandatory reasons that the mini- analysis rational of the realities of legal mum Appellant did Williams, system. Court Apprendi, not offend Blakely, or Booker sensibly recognized that ap- the modern and did not Appellant’s violate Sixth proach to imposing individualized sen- Amendment right jury trial. A jury tences mandates that the court Appellant convicted of manufacturing mar- rely upon all “pertinent information,” ijuana' § violation of 35 P.S. 780- which could not be if obtained there was 113(a)(30) beyond a reasonable doubt and “rigid adherence to restrictive rules of evi- with all constitutional guarantees place. properly dence applicable to the trial.” jury’s The verdict imposi- authorized the Williams, supra at 69 S.Ct. 1079. tion of a years maximum sentence of five Williams concluded that most of the infor- 780-113(f)(2). imprisonment. § 35 P.S. A currently mation by sentencing utilized years sentence of five was man- judges in the penological system modern 7508(a)(iii), § dated 18 Pa.C.S. once the would not be available with Sixth Amend- sentencing court Appel- determined that jury ment trial restrictions in place for possessed lant fifty-one at least live mari- every factor used to “enhance” a sentence. juana plants.12 ¶ 40 The simply present dissenters approach unworkable to the The provisions set forth process. Judge approach Bender’s creates section 7508 do not increase the statuto- the potential jury ry punishment would have to be change impaneled and the grade Commonwealth would of the upon crime based the number have to prove plants contrary, reasonable doubt involved. To the sec- impacting each factor regulates only a sentence. tion 7508 the minimum sen- Judge suggests Klein that a sentencing tence. Whereas this section serves to lim- enhancement should be submitted to a regarding court’s discretion beyond-a-reasonable-doubt under a imposing manner or method of the sen- tence, standard if it in a results drastic increase it does not increase the maximum in the sentence. punishment Whether the enhance- for the conviction. juiy's application 12. The plants sentencing judge, decision on of the number of thus, merely advisory. duty factor was The rests with and is not delegates determining subject statute task resolution. present with a of the time- imposition copy this Court Since minimum sentence did not exceed the stat cover amended mo- stamped sheet utory jury’s maximum authorized tion.

verdict, Apprendi, Blakely, and Booker Appel 45 It it is is settled that offended, Appellant’s position were responsibility to ensure lant’s contrary rejected. must be complete necessary has the record ceiling of punishment in this case was a claim. Common properly review See jury’s verdict, Appel cemented (Pa.Su Whitaker, v. 878 914 wealth A.2d lant was the that range sentenced within per.2005). docket entries in this case The authorized. The statute is consti clearly reflect that the amended motion tutional under McMillan and Harris be not deposition with attached is contained cause it not of presumption did discard record, since motion that is innocence, not of presumption did create a necessary posi of Appellant’s a review fact, any place any of not existence did that of probable tion affidavit cause proof any burden of of the existence of fact fact, of contained material misstatements Appellant, not the prosecu on did relieve we are unable to entertain this issue on guilt, not proving tion its burden did appeal. crime, penalty alter the maximum for the ¶ and did a separate Judgment not create offense al 46 of sentence affirmed. lowing separate merely for a penalty. It Judge Dissenting files 47 KLEIN a

limited court’s discretion Judge ELLIOTT Opinion which FORD selecting penalty al within joins. ready to it. available Appellant’s 44 second contention Judge a Dissenting 48 BENDER files January suppression

concerns a issue. On Opinion. 14, 2002, sup a motion Appellant filed KLEIN, BY DISSENTING OPINION press, alleging probable there was no J.: to support cause issuance the search acknowledge there 1 I is While Appellant warrant. apparently prepared opinions from multiple confusion suppress an amended motion to contend Supreme on the United States Court ing that probable the affidavit of cause issue, Blakely-Booker13 I believe that contained material fact. misstatements of pun- actual a fact is when essential motion The amended had an attached ex receive, the will de- ishment defendant of a consisting deposition purportedly hibit of that fact must be made termination supplied óf the confidential informant who jury. by a I beyond a reasonable doubt in the some the information contained Pennsylvania, v. believe McMillan affidavit probable cause. amended 79, 2411, L.Ed.2d 477 106 S.Ct. 91 67 U.S. con deposition motion with attached is not (1986), Pennsylvania’s which then affirmed record, and tained in the certified the low scheme, and v. Harris United filing court does not reflect the er docket 2406, States, 545, 122 153 536 U.S. S.Ct. Appellant of the motion. While maintains majori- upon which the L.Ed.2d 524 that he and that it not filed motion ty rely, longer following are law no included in the record due mistake Booker, courts, they been although spe- he not have not part of the clerk of does 738, Booker, 220, 296, S.Ct. Washington, v. U.S. 125 Blakely U.S. 124 States 543 v. 542 2531, (2005). (2004); United 160 L.Ed.2d 621 S.Ct. 159 L.Ed.2d cifically say the United maximum. it further to overruled States Then moved Supreme Court. in the grid when fact affected sentence, exceeding although federal

¶ 2 It is true that McMillan survived maximum, must be deter- Supreme United States Court deci- sions Apprendi Jersey, jury. New mined Since the United States U.S. 2348, S.Ct. L.Ed.2d 435 taking step a realistic (2000). Both may McMillan Harris to whether the fact increases the amount also be with reconciled v. Wash- likely spend time a defendant ington, U.S. S.Ct. say prison, it is another short step (2004). However, view, L.Ed.2d 403 in my grid position that if the fact affects Booker, after a fact when enhances the Pennsylvania’s, scheme must like that fact imposed, sentence that bewill that must jury, determined whether by jury beyond be determined a reason- “guideline” or a is a minimum number able I doubt. this is true believe whether in “fixed” such as the Federal number minimum, the fact a mandatory determines system. (such impacts a flat sentence as the Feder- sentence), al or determines what block in a ¶ great line is that in The bottom the sentencing grid be the starting point will majority Pennsylvania, the of cases for the minimum in a sentence amount of a defendant time will be Pennsylvania’s. scheme such as There- prison by less the is affected fore, I am constrained dissent. by particular grid sentence than it is the 1. A common sense evaluation of Book- is box in which minimum sentence the requires jury er a determine facts mandatory a mini- determined or whether require that enhanced mini- Pennsylvania imposed. mum sentence is mum sentences or increase the for imposes judge on a’trial from restrictions sentencing guidelines. impact the sentencing guidelines and ¶ I provides 3 believe a Booker common of a mandatory minimum sentences. If sense clearly interpretation articulated mini- impose mandatory fails to a of the basic first announced in principles mum or sentences outside sentence Apprendi Blakely. I believe the Unit- certainly range, “standard” outside Supreme ed States Court has a reached ex- guidelines, something there is unless logical on pronounce- conclusion based its traordinary the facts and circum- about in Apprendi Blakely. ments defendant, stances the crime that and/or ¶ 4 Supreme The United States Court on appeal. sentence will be reversed has when a fact determined that will dras- circumstance; it a rare This is not tically impact years the number of a defen- day in criminal up every comes courts incarcerated, spend dant will that fact whatever Commonwealth. Was should not a a judge by be determined possessed something defendant a vic- preponderance of the evidence standard but by jury using “beyond reasonably rather a tim would a rea- have believed to be proof. sonable doubt” as burden of drugs firearm? How much of the seized possessed by the defendant and how Initially, Supreme Court made Exactly much belonged to someone else? distinction based whether or not the drug how far sale from a school was the fact was “an element crime.” Then yard? frequently are contested These away require jury moved from where the fact increased the facts. by a recent decision supported has is United States Court view distinguished jurist, Judge in-

sensibly rejected concept authored en- required only when the the United States Dis- Nancy volvement Gertner of longer than hancement results statuto- of Massachu- trict for the District Likewise, rily allowed maximum sentence. being In a member setts. addition gener- since time of incarceration will has judiciary, Judge Gertner the federal ally vary depending on which box greatly sentencing at Yale Law taught School falls, grid it is Pennsylvania’s a case years. also is a at least five She require facts that affect sensible Profes- Distinguished Charles E. Merriam beyond position be determined Law and has sor at Arizona State School in the jury. reasonable doubt While Harvard, at the schools at Bos- taught law the flat number in the system, Federal College, University, Northeast- ton Boston generally grid determines amount University of University and the ern serve, in Pennsylva- time a will defendant Iowa.14 nia, guideline Judge addressed issue Gertner responsible generally is date Malouf, F.Supp.2d States v. United get prison. Pennsyl- defendant will out of (D.Ma.2005). Malouf, question generally sufficiently has long

vania maxi- affecting whether facts such actually mum sentences and the time drug quantity proven must be custody more mini- determined Following doubt. reasonable Therefore, mum. practical effect law, case exhaustive of relevant review Supreme the United States Court cases and through Harris con- from McMillan negligible be if ignore would we were to and cluding Apprendi Shepard,15 with impact factors a major that have on the Booker, Judge concluded such ele- Gertner sentence and the time a defendant will subject jury to consideration.16 ments were spend Ap- incarcerated. If the theory of followed, prendi Blakely and it is is judgment, holding my In breadth necessary a jury to have decide the factual in fact over- in Booker and have mandatory basis minimum or sentences gone The Court has from ruled Harris. higher guideline minimum sentences when holding Amendment Sixth major the facts impact have the sen- determination of facts implicated in the tence. And that what the United States (Ap- increase Supreme said in Court Booker. the Sixth Amend- prendi) applying the pun- to all facts “essential to Therefore, ment I believe McMillan (Booker It Blakely). and has ishment” and have in overruled Harris fact been application of Sixth extended the any relating Booker and fact crime statutory maximum mandatory Amendment from requires minimum either changes penalties (Apprendi) standard (Booker). jury. must be This “Guidelines” determined holding Judge aspects proach I of McMillan Harris 14. mention these Gertner’s predicates professionally only prior served as note convictions resume that both status.) academically, Criminal in the court and she is well Armed Career trial sentencing. versed in the nuances of reasoning adopt the found Mal- 16.I would 13, States, long cited Shepard That is too to be here 15. v. United 544 U.S. decision ouf. 1254, (2005) study of that deci- (question- and I recommend a close S.Ct. 161 L.Ed.2d 205 ing ap- the “traditional factor” sion. this, By determining majority decision by noting- ended there was no Sixth If quantity figures prominently so Amendment right sentencing. Id. decision, important it is not unrea- 93, 106 at S.Ct. 2411. ask, sonable as the court did of the Federal Sentencing Guidelines in United view, however, 14 This was later limit- Gray, States v. F.Supp.2d ed in Ring v. Ari- (S.D.W.Va.2005) level of confi- —what zona, 584, 2428, 536 U.S. 122 S.Ct. dence should the decisionmaker have in (2002) Booker, L.Ed.2d 556 supra. that fact before it sentences? case, Ring, a death penalty the Supreme Court stated: “If 329.17 a State makes in- Malouf at crease in the defendant’s pun- authorized ¶ 11 Initially, there seem to be three contingent ishment finding fact, factors Pennsylvania’s that allowed sen- that fact—no matter how the State labels tencing escape enhancements to the re- it—must be found aby jury beyond a quirement of a trial and proof beyond Ring reasonable doubt.” 122 S.Ct. a reasonable doubt. Two of the three have Further, “[t]he characterization of a rejected been specifically by the United fact or circumstance and an ‘element’ or Supreme Court, States and a reading fair ‘sentencing factor’ is not determinative of of the latest cases demonstrates that the decides,’ question of ‘who judge or third fail should as well. jury.” Id. at 122 S.Ct. 2428. ¶ 12 Pennsylvania’s A. sentencing en concept 15 This was then taken from hancements are not “elements of the the arena of death penalty litigation and crime.” That was the basis of McMillan. majority endorsed Booker as It Stevens, is noted that Justice who wrote applied to the sentencing guide- federal Booker, majority said in dissent in Ring lines. Apprendi When were McMillan, “It impor would demean the together, read the Booker court deter- tance the reasonable doubt standard— (other “Any mined: fact than a prior con- indeed, it would demean Constitution the. viction) necessary which is support itself—if the substance of the standard exceeding sentence maximum author- could by be avoided nothing more than a by ized the facts a plea established legislative declaration that prohibited con guilty or a verdict must be admitted duct is not an ‘element’ of a crime.” 477 proved the defendant or to a be- 102, 106 U.S. at S.Ct. 2411. Booker, yond a reasonable doubt.” 125 majority 13 The in McMillan was de- S.Ct. 756. process cided under a analysis due legislature Therefore, determined that the “up could 16 “up- it seems that while the ante” by making the possession ping visible sentencing the ante” the use of of a firearm a sentencing factor rather may factors not offend due it process, now than an element of underlying Amendment, crime itself. run does afoul of the Sixth Judge compares Gertner logic separate equal also the Book forbid the but Brown dichotomy, public transportation where Booker did not er/Harris doctrine in cases that Harris, court, specifically refusing overrules to the Brown v. followed. A lower follow Education, 483, decision, Plessy, Board 347 U.S. judicial S.Ct. “a stated: which is 686, (1954)/Plessy Ferguson, simply 98 L.Ed. 873 law evidence of the and not the law 537, 1138, itself, 163 U.S. may impaired by S.Ct. 41 L.Ed. 256 be so later decisions (1896) specifically dilemma. longer any Brown did not as no to furnish reliable evidence.” Plessy, yet overrule there was no doubt the at 326. Malouf answering question prop- not jury. relevant to a rather than proven unless the fact is McMillan, Booker, Booker to- Reading Ring erly court.” 125 S.Ct. before the gether, I am left with conclusion while at 752-53. may constitutionally permissible for a Further, it clear that Booker makes to enact legislature factors statutory not speaking it is about absolutes dependant fact are not elements of are ad- sentencing. specifically Booker crime, subject those are still facts guideline dresses máximums. Guidelines scrutiny and Sixth Amendment must be concept free with flowing are nature a proven jury beyond a reasonable vary guide- room to a sentence. Federal doubt.18 lines are to address maximum structured ¶ 17 B. The enhancement does not af- surprising it is not sentences and so maximum, only fect limits the but addressing decisions Court

judge’s discretion for the sen- terms. is fun- speak issue those What Apprendi tence. This how the issue, however, damentally at is the real 487, distinguished McMillan. 530 U.S. at imposed upon sentence the defendant. Booker, 120 S.Ct. Footnote 13. dictum in a footnote McMillan was undoubtedly There is rejected, rejected govern- as the Court drug maximum in the sentence crimes argument ment that since maximum (most likely imprison- federal scheme life affected, not Apprendi do ment). the federal has de- None of cases apply. not Booker’s maximum sentence consti- termined factors were affected, guidelines was not but the went tutionally because maximum sound years, from 21 to 30 years 10 months It possible affected. of “extra” trial drugs because analysis therefore artificial limit seems possessed by preponderance found he Pennsylvania sentencing scheme said, the evidence. As Justices Stevens factor does not ex- because is, course, simple answer “The that we tend absolute sentence. a statute in considering were ¶ Moreover, majority of in the vast case; expressly we declined consider cases, increasing the minimum sentence the Guidelines. See Apprendi, U.S. at Pennsylvania directly the maxi- does affect n. It was S.Ct. 2348. there- may judicial no- mum We take appropriate fore to state the rule in that sentence. overwhelming in an ‘statutory case terms maximum’ tice of the fact that many ways, Why the should be the Sixth Amendment anal- mum sentence. thief Booker/Ring ysis of eviscerated due granted greater protection has the than constitutional analysis process announcing of McMillan in immediately marijuana is not an- the dealer a makes no difference whether fact is an swerable. a element of crime or a factor. note, thief, too, having been convicted I the Thus, ponder why we would be left to in a beyond a reasonable on all relevant elements jury case a a theft must decide reason- doubt, guide- sentenced the would be under thing doubt value of the able whether the judge lines allow a to deviate either which making $1999.00 the crime a taken was mis- given higher the circumstances. or lower demeanor, making $2001.00 or the a crime However, possessor marijuana is sen- the felony increase concurrent in sen- —with preponderance tenced mere based by tencing, judge may decide but fair mandatory from to a minimum evidence drug preponderance of whether a evidence Yet deviation is allowed. which no lower marijuana possessed plants defendant 20 live law, sentence) analysis (a year under the current plants, or 21 minimum one subject year punishment review. subjecting to a three stricter is to lesser the defendant mini- firearm, number of cases the maximum sentence is the victim to be how close the minimum, double the not the actual statu- drug playground, sale is school or etc. Thus, tory maximum if sentence allowed. major those impact Since facts will have a year mandatory we look at a 5 minimum on the actual in custody, time it makes no sentence for a crime with a firearm as sense to have a if only decide the facts opposed guideline to an otherwise mini- they affect the theoretical maximum when years, mum of 2 sentence the maximum judge can make the decision on the years sentence will have increased from minimum which much likely more will af- years. though Pennsylvania Even fect the actual spent number of months sentencing speaks in terms of minimum custody. máximums, opposed sentences as ¶ 23 Both sys- the Federal and State that which affects the minimum a real has tems are in effect “indeterminate” since at and immediate effect on the maximum sen- sentencing one cannot long determine how tence. spend custody a defendant will in either Pennsylvania 21 C. has an “indetermi- situation. sentencing system nate” unlike the “deter- ¶ 24 anyone dispute Can that Kleinicke system minate” of the Federal Courts. spend drastically will increased time ignores This reality custody if pos- he is determined to have in Pennsylvania schemes and the Federal marijuana sessed 963 plants rather than system. The “maximum” 15? The minimum for a system Federal does not fix in stone the possessing plants first offender is one amount of time a defendant will serve year, and normal sentence would be custody, as there are various credits for However, years. one to two if there are “good Pennsylva- time” and other factors. plants, there is a mandatory minimum nia focuses on minimum sentence and year which would result a flat five sen-

requires that the minimum be no more tence. than half the maximum.19 That fixes the noted, overwhelming 25 As num- date a defendant will eligible parole, Pennsylvania bers of cases in are more which often will be the release date unless affected the minimum than custody defendant acts out while in Therefore, the maximum. if a factual de- there is a of dangerousness determination guideline grid termination shifts the delay which could parole date. How- compelled the minimum so that a ever, defendants, for a vast number (unless grid to sentence within there date of release is close circumstances), extenuating are if the sentence. That why it is the minimum determination, gen- does make that guidelines, assuming is set eral effect of Apprendi-Blakely-Book- in most cases the maximum will be twice negligible. er cases is the minimum. cases, I “mayhem” 22 In 26 also comment that the most the actual jail majority

time in will be determined feared if these determina- factors involved, tions to not drugs by jury such as amount of the are be made will case, something whether or not in a pass. is a “firearm” come to Just as theft reasonably by because could be to special interrogatory assumed where there is a exception mandatory 19. There is an if a mini- imum. mum is more than one-half max- taken, more jury a new than 50 property

determine the value of the doubt to a line in other situations there will be plants were involved. to the verdict sheet as to the added ¶ suggest sentencing I on 30 decline to of the from a drugs, amount distance First, two only plants for reasons. used, playground, whether a firearm was I do there was an because not believe Also, always etc. there will be factors determination, jury merely but an actual specific each case that cannot be ac- jury for the trial advisory determination mandatory for or guidelines counted findings. Secondly, judge, who made the enhancements, and those can al- factors jury treated as bind- even were verdict ways used by be court ing, jurors agree, because the did not appropriate fashion an or sentence within jury no hung there was a determina- guidelines. already This

without court there more tion at all as whether were challenges more than fair share sees its plants than 50 involved. discretionary to these sentencing determi- nations. The volume work would

relatively unaffected. jury “advisory an A. The verdict as jury beyond 27 Proof verdict.” a reason- only apply able doubt would fac- to those jury 31 I note was no ultimate there specifically tors which are enumerated plants disposition pos- as the number legislature or commission or manufactured Kleinicke. The sessed enhancing as a sentence or imposing trial court made the ultimate determina- fac- minimum sentence. These tion on this issue and the trial court’s statutorily tors have been lifted from dis- finding is what was recorded and is cretionary consideration sentence. This ulti- basis Kleinicke’s easily distinguishable are keeping mate decision was in with review. law at the state of the as it was understood Therefore, in this case hold I would time of the trial. plants that the amount of deter- must be beyond mined a reasonable doubt ¶ 32 Had the trial court never allowed jury I and would remand for trial a new jury question to consider the jury for a plants decide number of question there no place, first would be involved. disposition would be to remand proper “hung jury” 2. The on the amount of jury determination on number plants requires a new trial rather than a plants statutorily involved. Because only plants. based meant plants involved number determination, any binding jury to be a 29 I do not believe the defendant plants number jury as to the opinion if should be sentenced as were there as that time— may be seen irrelevant —at plants. appropriate disposition advisory to an thus would be akin for a trial to remand the case new or- equity found or verdict such where the Commonwealth will have phans’ reasonable court.20 opportunity prove is, Dob advisory jury the ultimate determination. See I note that verdict makes was, Florida, recently death least at used in Florida U.S. 97 S.Ct. bert v. There, penalty renders (1977) cases. (abrogated on other 53 L.Ed.2d application advisory verdict on the grounds). penalty, judge who death but it is the trial ¶ 33 at plants, Because the time it was the this might discussion not have been necessary, practice jury for the trial court to but the did not reach a determine complete involved, verdict. the number of plants Kleinicke prejudice suffered no because the trial ¶ 36 Once we view elements sentenc- jury court allowed the to consider the is- ing equivalent to elements of the crime for judge sue. The made the ultimate deter- process purposes, due then it would seem mination. appropriate similarly to treat the elements purposes hung jury. of a aWhen hung jury

B. A is of no effect and crime, guilty defendant is found of a in a there was no jury verdict whether indictment, multi-count jury but the cannot or not there were more than 50 counts, then, reach a verdict on other plants. general, the Commonwealth is allowed to try again the defendant on those counts ¶ course, 34 Of the trial court did allow original jury which the could not so, the jury to consider the matter. Even agree. jury did not arrive an ultimate jurors decision. Eleven of the twelve be- This is offensive the consti- plants lieved there were 693 involved. prohibition against jeopar- tutional double jurors One of the believed there were 15. dy. example, For in Commonwealth v. By necessity, agreed all Pounds, there were at Pa.Super. A.2d 1126 However, marijuana least 15 plants. (1980), guilty the defendant was found necessarily does not end the discussion crossing DUI and the center line. The jury because the was not unanimous on jury hung charge on the of vehicular homi- whether plants. there were 693 cide. The charges verdict on the lesser was recorded and the Commonwealth was out, majority pointed As the retry allowed to Pounds on the homicide United State required Court has charge. Similarly, Commonwealth v. that when a factual decision determines Kemmerer, Pa. 584 A.2d 940 sentence, length of a mandatory now it acquitted defendant was of first up jury using decide those facts degree voluntary manslaugh- murder and “beyond a reasonable doubt” standard. ter, jury hung but the on second and third case, up jury to deter- degree involuntary murder man- mine whether there were 51 or more slaughter. The al- Commonwealth was plants involved. It is as if there were two retry charges lowed to Kemmerer on those charges, possession one for plants of 15 jury agreed had not on. possession and another count of of 51 or By analogy, accept jury’s if we most, plants. given jury more At de- consideration of the elements termination, say we could that Kleinicke binding, jury agreed then the to one of had been guilty found of the lesser offense Thus, charges hung but on the other. possession the jury hung but the Commonwealth would be allowed question possessed of whether he 51 or retry specific Kleinicke on the factual possessing more. It is as if 51 or more question possessed of whether he more crime, plants was different and the num- marijuana than 51 plants. plants ber element of that more jury serious crime. It is notable summary, 39 In I believe that Booker “acquit” greater did not Kleinicke of jury requires many to determine how charge. Had a complete- plants possessed. reached Kleinicke Since the ly hung unanimous verdict on the number of this case and the made a

583 time, it and suspected determination, 2 For some was necessary it is to remand fact- of this that the reallocation argued it jury for a new will this case trial where infringed right upon function finding to prove, be the Commonwealth’s burden in all citizens by jury guaranteed to trial beyond doubt, or not a reasonable whether However, Constitution. States the United marijua- possessed more than 50 Kleinicke argument validity, this had to the extent na plants. there, as did infringement not end reasons, I 40 For these dissent. fact- post this extra or trial increasingly preponder- conducted finding upon was prac- evidence standard. This ance of the BY DISSENTING OPINION derogation in of the traditional tice stood BENDER, J.: sovereign. placed upon the Since burden of comprised 1 In a trio decisions 397 Winship, case In Re the landmark 466, Jersey, Apprendi v. New 530 U.S. 358, 1068, 90 S.Ct. 25 L.Ed.2d 368 U.S. 2348, 147 (2000),Blakely S.Ct. L.Ed.2d 435 (1970), it has been deemed an essential 296, 124 Washington, S.Ct. U.S. process of due that conviction application 2531, (2004), 159 L.Ed.2d 403 and United beyond doubt. upon proof rest reasonable Booker, 220, States v. U.S. S.Ct. Thus, in crim- administering new trend 738, (2005), 160 L.Ed.2d the United justice actual amount inal meant States Court reversed a trend increasingly in spent prison of time gathered that had tremendous momentum not of the of a tested finding function in justice the administration of criminal in stan- against the reasonable doubt country. this With in the common roots fact(s) dard, finding by made but of a England, approach law of the traditional to jurist of the upon preponderance based justice in the administration criminal likely spurred standard. Most evidence States, in prior the United and the colonies approach, of the some expediency nation, the birth of commanded legislative contend this trend essen- might and, return a verdict if that guaran- verdict tially key rights steamrolled over guilty, that the court a sen impose to all citizens the United Stated teed Constitution, kept track until upon right tence and the fac and based verdict Apprendi, first in predicate tual that verdict. the momentum slowed underlying finally in Blakely, hit a halt and went then Despite lengthy tradition of trial into Booker. reverse half-century jury, preceding or so Apprendi it had become decision deny change a sea 3 One cannot from the increasingly prevalent remove Blakely. place has taken the wake factfinding key jury the function as only to arguably acted Apprendi While upon imposition material facts which the McMillan v. key decisions like reaffirm punishment hinged place 2411, Pennsylvania, 477 U.S. 106 S.Ct. judge. of the trial modern hands Under (1986), Harris v. United 91 L.Ed.2d 67 schemes, the re jury was still States, 536 U.S. S.Ct. quired guilty to find the defendant impair which did not L.Ed.2d offense, im basic but actual sentence approach sentencing, Blake- the modern posed might vary dramatically based further ly going seen as much has been in numer- potential findings made has left schemes number Indeed, jurisdictions shambles.21 post-verdict. trial court ous following aspects at least of their Appellate courts in states have found some jurisdictions repeal many of than in Blakely has led to the Feder- other America Booker, al in there- and different from the ones under Sentencing Guidelines consid- in by radically altering way sentences are eration the landmark cases cited above. specifically, Majority More handed out in federal- courts across the contends Blakely Pennsylvania employs system United If and are that since States. Booker re-vindicating of rights punishment, simply seen as of trial indeterminate which of jury proof beyond imposes and doubt all means that the court reasonable America, Majority potential which it across has decided incarceration —of has join choosing prisoner’s will not discretion in Pennsylvania this coun- —and is tertrend and that criminal defendants in actual date of release left to the determi- Pennsylvania not nation of of are entitled the same the Board Probation and Pa- role, protections Booker neighbor- Blakely distinguish- afforded citizens and are Thus, jurisdictions. ing principles where convicted able and the enunciated in those Washington mandatory criminals cannot cases do not to the in have their relate mini- for, guideline say, enhanced act- mums and enhancements found in sentence Penn- ing cruelty” sylvania’s sentencing scheme. with “deliberate unless the question cruelty of deliberate was admit- it is true that there is While put ted or and proven to a found Pennsylvania’s difference between sentenc- doubt, beyond and where con- reasonable ing scheme those found in and and system victed criminals in federal will Booker, Majority any fails to offer true exposed mandatory not minimum analysis why difference this means that factor, the qualifying sentences unless Pennsylvania judges trial are free to quantity drugs possessed, such as the impose mandatory mínimums Booker-like similarly put and admitted Blakely-like and enhancements those doubt, proven beyond found reasonable them without appearing before an admis- Pennsylvania convicted criminals can be guilt qualifying sion of finding by or a subject mandatory mínimums and sen- in the jury, judges while state of Washing- upon a post-trial judicial tence enhancers ton can longer and the federal courts no do by a finding proven prepon- of fact mere the lines of Reading so. between the Ma- bring derance of the I cannot evidence. jority’s Opinion, taking those infer- myself join conclusion. end, logical the general ences their Majori- theme that to underlie the Majority appears contends that the con- harm, ty’s essentially a “no protections being stitutional revalidated all distinction is variability tied to enjoyed argument are not to be no foul” country across the Pennsylvania unpredictability Pennsylva- innate citizens of because Penn- system sentencing serving sylvania employs system nia’s Pennsylvania.22 prison from incarceration different time release other (2005). Additionally, the state Appren to be violative of Kansas schemes di/Blakely/Booker: Jersey, New State v. Na modified schemes in the their 458, tale, (2005); § 184 N.J. 878 A.2d 724 Apprendi. Kan. Stat. wake of Ann. 21— State, Indiana, (Ind. Smylie v. 823 N.E.2d 679 4718(b)(2). Minnesota, Shattuck, 2005); State v. variability unpredictability 22. This has (Minn.2004); and/or Oregon, N.W.2d State imposition two facet is the Dilts, facets. One (2004); 103 P.3d 95 337 Or. Wash sentence, Pennsylvania greater which in has ington, Hughes, 154 Wash.2d State v. many jurisdictions Colorado, variability other (2005); than due People, Lopez v. P.3d 192 (Colo.2005); vested in the trial amount of discretion and North Car 113 P.3d 713 Allen, olina, prison, court. The is release from 359 N.C. 615 S.E.2d other facet State v. maximum, words, long as sentence does Majority seems to be contend- just statutorily criminal authorized maxi- ing that because convicted exceed that have from the court might mum, received manner which the sentence very of its discretion the same exercise restric- imposed is constitutional dictated tion. produced, sentencing or the enhancement approach aptly is exem- 7 The above just might have been made to serve that Scalia in his plified by the words of Justice board, if parole time indeed by much the Apprendi: Concurrence by court, that sentence the then the given a prospective I think it not unfair to tell can at issue be protections constitutional contemplat- if he his felon that commits obviated. jail exposing ed he is himself to a crime actuality, Majority’s premise 6 In the if, years upon sentence of 30 —and right up legal support, had to the issuance conviction, gets anything he less than then, Beyond and Booker. mercy of ten- may thank the he however, the hardly simple issue is as judge (just may as he thank derhearted Majority Encompassed it. portrays the mercy parole of a tenderhearted York, Williams New 337 U.S. inordinately if he out commission is let L.Ed. 1337 S.Ct. early, mercy or the tenderhearted sentencing upon Majori- decision which the commuted). if his is governor sentence thesis, its ty builds and cases disparities? be Of course. Will there follow, an approach that would is to sen- get But the criminal never more will tencing might one term as laissez-faire. punishment bargained than he for when approach grounded The is in the essential crime, guilt he did the and his process expe- due notion notice and the (and length crime hence the of the sen- premise citizenry pro- dient that the and exposed) he be tence to which will placed spective criminal is on notice of beyond doubt determined a reasonable punishment engaging what awaits him for by his activity. the unanimous vote proscribed If one were to approach, might summarize this it citizens. read fellow as long imposed like this: as the sentence 498, 120 at Apprendi, 530 U.S. at S.Ct. range was within the authorized statute committed, manner for crime ratio- approach 8 That the above was im- which underlay pre- nale decisions material did not either offend the fol- Apprendi/Blakely evidenced right trial nor process/proof due Harris, lowing passage from where beyond doubt. The rationale reasonable holding capsulized its earlier approach might for the be summarized as McMillan: since a this: convicted individual was con- in McMillan did factor up that he receive sidered notice could penalty “the a crime increase statutorily punishment authorized maxi- prescribed statutory committed, crime and since 2348]; mum,” 490[, at 530 U.S. S.Ct. could convicted legally state sentence the it, opinions concurring nor as the statutorily authorized did individual expiration sentence and prisoner’s is variable because a ulti- which could, theoretically, expi- imprisoned until release date is entrusted to the Board of mate imposed at prisoner the maximum sentence ration of Probation and Parole because right sentencing. Pennsylvania has no to release it, put Jones “alter congressionally Apprendi did not ap invalidate the above prescribed range of penalties to which proach because the enhancement involved criminal exposed,” defendant is 526 U.S. in Apprendi took the sentence outside the 253[, (SCALIA, at J., 119 S.Ct. 1215] range specifically authorized the New concurring). Apprendi As the Court ob- Jersey question, statute for the crime in served, merely the McMillan finding re- offense, degree second it moved into a quired impose specific “a equal degree class to a first Ap offense. sentence within the authorized prendi, 530 U.S. 120 S.Ct. at 2363. jury’s finding the defendant such, clearly As principle violated the guilty.” [was] enunciated in the earlier decisions. That

is, Jersey prevented New was not from punishing a convicted defendant more se by judge Whether chosen the or the if verely it was concluded the defendant legislature, judicial the facts guiding had acted purpose, with a biased it merely discretion below the statutory maximum punish meant that to the defendant more alleged indictment, need not be in the severely subject right issue was jury, submitted to the proved or be- to trial. yond a reasonable doubt. When a However, glue 10 of the above judge sentences the defendant began rationale to in Blakely, dissolve as minimum, mandatory no less than when imposed upon Blakely sentence after judge chooses sentence within the the court-added enhancement was still range, the grand petit juries and al- safely by within the limits authorized stat- ready have found all the facts neces- ute. Apprendi, Unlike who received a sary to authorize the Government to impose sentence that the sentence. The which he could be judge may impose minimum, maximum, notice, deemed to Blakely’s or have been on any other sentence within range statutorily was well below the without seeking further authorization was, therefore, authorized maximum and juries from those without contra- range Blakely within the was deemed to —and dicting Apprendi. duly have been warned his criminal behav- ior bring punishment. could If Harris, it was 563-65, at U.S. S.Ct. indeed true that “whether chosen 2417-18. succinctly, Stated more McMil- legislature, or the guiding lan the facts Pennsylvania’s mandatory defended judicial minimum statutory provision by discretion below the reasoning provision the effect of the merely alleged was maximum need not be in the indict- to limit the exercise of the ment, court’s discre- jury, submitted to proved tion statutorily within a authorized doubt,” beyond a reasonable as the Court punishment since the inflicted was just had stated in years Hands a few statute, within the range set forth earlier, why did the fact that the court had right defendant had no complain Blakely decided that had acted with delib- minimum, absent the might he cruelty, jury, erate rather than a violate gotten have a lesser sentence. the 6th Amendment when an enhanced sentence was on the of that The above rationale basis glue was finding? all I would respectfully allowed of the various submit that nothing Majority’s decisions to adhere to one within the Opinion another con sat- observes, vincing fashion. As the Majority isfactorily question. answers this observation/analysis ap- 13 The same may posit If I be allowed Booker, who, intellectually satisfy- under feder- explanation, plies the most to Freddie statute, time of ing subject imprisonment answer is that al was away prior from its guilty, by Court had backed found having life after been unwilling to stance and now allow the grams jury, possessing at least analysis guided by constitutional the fact that life Despite cocaine base. wholly possibility or theoretical abstract authorized statutorily sentence was looked at the real life conse- instead verdict, jury’s under the federal quences judicial factfinding. In Blake- drugs guidelines quantity of Booker ly, Washington although the crimes code possessed, ostensibly found to have up year’s authorized a sentence grams, history 92.5 Booker’s criminal confinement, this number was mere stat- theoretically called for a less-severe sen- utory reserved ceiling, possibly for the pris- months in tence between 210 and 262 egregious most crime the classification However, sentencing hearing on. at a egregious example or the most subject to a preponderance evidence crime in question. Most sentences actual- proof, court heard evidence burden ly imposed ceiling, fell below presented jury, that had not been Blakely’s applicable sentencing case other grams possessed evidence Booker provisions presumptive a delineated sen- grams in 92.5 of “crack” addition to the the imprisonment. tence of to 53 months upon told jury was about. Based find- provisions, Because of these the applica- provided a ing, sentencing guidelines the meant, tion of the enhancement range punishment of 360 months between implies, as the term for enhancement that imprisonment. Again, life since the purposes Blakely all intents would jury’s up verdict authorized a sentence of spending an additional 37 months in prison in imprisonment, provision to life Har- judicial finding as a a result of of fact as judge by that chosen or ris “whether opposed jury’s finding to a of fact. judicial guiding facts legislature, course, Blakely Of Court did discretion below express tying not that opinion addition- indictment, alleged need not be in the sub- in punishment al to the factor question beyond to a jury, proved mitted pose would a constitutional I dilemma and compelled would have reasonable doubt” that anyone attaching doubt would contend constitutional the conclusion that Booker’s punishment additional factor of de- imposition by the rights were not violated cruelty liberate a violated constitutional Nevertheless, 360 month of a sentence. However, protection. because the en- only did Booker Court conclude not upon added court’s hancement was of 262 that the in excess months sentence fact, a finding opposed jury’s, of rights, the violated Booker’s constitutional was deemed violation of enhancement ap- also that the entire concluded jury. Or, Blakely’s by to trial right sentencing encompassed proach state above terms another consti- was constitu- sentencing guidelines federal viewpoint, appreciable tutional since an tionally infirm. Blakely’s prospective prison amount of underlying Blakely 14 The rationale directly finding, tied to a factual time was undeniable, system a and Booker seems finding constituted an “ele- factual significant a that attributes analy- purposes ment” for of constitutional punish- of a defendant’s portion fac- criminal merely “sentencing sis aby judge made finding to a of fact ment tor.” Therefore, jail. preponderance prisoner’s of the evidence when a mini- opposed finding by jury by operation standard as mum sentence is increased utilizing beyond enhancements or reasonable doubt stan- sentences, in derogation right imprisonment dard is of a defendant’s or the is process provisions, to trial and violates due increased these his time in ultimately imposed prison even if the sentence will be increased as well. statutorily falls under the authorized limit respect 16 With the ultimate re- question. clearly for the crime prison, Majority lease from correct away shifted the focus from what sov- pointing prisoner when out that Penn- ereign legally impose authorized to sylvania precisely cannot know he when and directed it toward the real-life conse- prison, prison- will be released from as the judicial quences factfinding within the er’s release parole is determined question. scheme in As the Nevertheless, prisoner in Penn- board. Blakely: Court stated in sylvania eligible will know when he will be must, Nor does it matter parole. Pennsylvania, prisoner for facts, finding aggravating after make a eligible parole upon serving the mini- judgment they present a compelling mum trial court. ground departure. He cannot make parole requests Recent data indicates that judgment finding without some granted approximately are 60% of the ele- support facts the bare time,23 study by Allegheny and a recent judi- ments of the offense. Whether the County prisoners county from that re- cially require determined facts a sen- Department leased from fa- Corrections it, merely tence enhancement or allow prisoners cilities 2002 showed that those the verdict alone does not authorize the served, average, of their maximum 75% sentence. such, sentence.24 As it is clear that the typical ex- prisoner is released before the 542 124 Blakely, U.S. 305 n. S.Ct. at Thus, of piration his term. 2588 n. 8. sentencing which has average, provision Returning Majority’s to the distinc- practical increasing range the the effect presumptive tion and the rationale under- in a imprisonment imposed will result distinction, lying that do the greater prisoner. time for the served minimum and enhancement factors found Pennsylvania’s sentencing Additionally, in scheme have the maximum sen- practical automatically the same effect as those under tence is not coterminous Rather, Blakely statutory consideration in and Booker? I the maximum. the with that, yes. imposed by the answer I maximum sentence the trial believe is believe is despite prisoner the fact that the time a court in the exercise of the court’s discre- may ultimately spend jail conjunction sentencing in less tion in is definite with guidelines. parole is not au- Pennsylvania than under the board Booker, Blakely keep prisoner schemes at issue and thorized to court, imposed by is that a correlation be- maximum sentence undeniable exists if that maximum falls under the maxi- imposed tween the even Thus, average prisoner spends the time the in mum allowed law. while Pennsylvania iegheny.pa.us/dlts/Jail- Report, http://www.county.al Board 23. 2005 Annual http:// Parole. Init/OffReentryPl .pdf Probation www.phpp.state.pa. us/pbppinfo/lib/pbppin- rpt.pdf. fo/pdjpubs/PBPP2005 Annual to section taking pursuant effect power to deter- parole board retains guide- date, (relating publication power the actual release mine sentencing). range by the for upper limited set lines This exercise of its discretion. court sentencing guidelines, respect With a look at the mechanism necessitates to consider obligated sentencing court Pennsyl- range of a sentence imposition is al- departure guidelines. While past sentencing practice. vania and lowed, the court requires law respect to the With from reasoning departing its explain setting imprisonment, of a court’s Moreover, the record.26 guidelines on free- trial courts have the theoretical while departure clear that a makes our caselaw up to a minimum sentence impose dom to sen- merely upon not be based should lim- statutorily authorized one-half of the guideline opinion that tencing court’s its,25 that our law the truth of the matter is punishment, insufficient range provides constrain the exercise of discretion does rather, should be based departure but markedly different than the a fashion not un- that the conduct the conclusion found in statutes/schemes differed question crime derlying the Booker. with typically associated from the conduct § 9721 Pennsylvania, suggested 19 In 42 Pa.C.S. as to render the that crime so provides: particu- for the punishment inappropriate

b) Common- facts of the case. See larized STANDARDS.—In GENERAL (Pa.Su- Walls, A.2d 152 v. selecting from the alternatives set forth wealth Gause, (a) per.2004); Commonwealth in subsection the court shall follow (1995). Last- A.2d 1014 Pa.Super. general principle that the sentence a sentence is ly, in cases where imposed should call for confinement guidelines falls outside protection is consistent with the —both prove cases as it above and below—numerous public, gravity the offense where, deference extending after due impact to the on the life of the relates court, reasons of- community, on the and the victim and appear rea- departure do of the defendant. fered for rehabilitative needs Court, will be the sentence any guide- also consider sonable to this The court shall for resen- and the case remanded sentencing adopted by for vacated lines Walls, A.2d at 157.27 Sentencing tencing. on See Pennsylvania Commission 9756(b) for the of the reason or reasons provides § im- ten statement 25. 42 Pa.C.S. that in confinement, guidelines. Failure from the posing a of total deviation sentence vacating the sen- comply grounds for shall be and a maxi- court must set forth minimum resentencing the defendant.” tence and imprisonment. While the maxi- mum term of § may imprisonment im- Pa.C.S. 9721. term of mum statutory ceiling, pose is limited that, although theoretical 27. It is also notable impose a term of im- court must disregard Pennsylvania ly judge could prisonment no more than half of the that is impose a suggestions and sentence guideline imposed. sentence maximum, statutory sta with the coterminous expe been the tistically speaking this has not imposes a every where the court 26. “In case According Pennsylvania. to the sentencing guidelines rience in sentence outside the Report The Penn Data issued 1999 Annual adopted by Pennsylvania Commission on Sentencing, sylvania 72.5% (relating Commission Sentencing pursuant to section the stan imposed were within sentencing) guidelines and all sentences adoption of in the range were and of sentences pursuant dard 8.9% to section made effective range. Only of all sentences aggravated contemporaneous writ- 5.1% provide a court shall Consequently, although perhaps al and imposition constraints on the of sen lowing greater flexibility just than those tence like the schemes under consider sentencing schemes considered in ation in Blakely and Booker.28 The con Booker, Pennsylvania’s sentencing junction past experience in sentencing presumptive scheme has starting points by Pennsylvania judges with parole guideline ranges. were Sentencing guidelines. above the exceptional from the There an Pennsylvania 1999: 1999 Annual Data Re- sentence 16 times the maximum of the “stan- port, Pennsylvania Commission on Sen- sentencing range upheld. dard” tencing. provisions Similar can be found in the Unit- Code, ed States which reads: Washington 28. The idea that the Except provided paragraph as provides scheme departure little room for kind, impose court shall a sentence of the guidelines from is not out borne range, and within the referred to in subsec- statutory language Washington relevant of the (a)(4) tion unless the court finds that there 9.94A.390, §§ Revised Code 9.94A.120 and aggravating mitigating exists an circum- provisions which were the in effect at the time kind, degree, stance of a or to a not ade- Blakely was sentenced. Those sections fol- quately taken into consideration the Sen- low: tencing formulating Commission in § 9.94A.120. Sentences guidelines that should result in a sentence person felony, When a is convicted of a different from that described. In determin- punishment the court impose pro- shall ing adequately whether a circumstance was vided in this section. consideration, taken into the court shall (1) Except as in subsections authorized sentencing guidelines, consider (2), (4), (5), (6), (8) section, of this statements, policy commentary and official impose court shall a sentence within the Sentencing Commission. range for the offense. § 18 U.S.C. 3553. If one reads (2) may impose The court a sentence out- sentence, imposing factors to be considered in range side the standard sentence for that similarity one will see a substantial finds, considering purpose offense if it concepts embodied in our own chapter, of this that there are substantial law. compelling justifying excep- reasons (a) imposing Factors to be considered in tional sentence. impose sentence. The court shall a sen- (3) Whenever a sentence outside the stan- sufficient, greater tence but not than neces- range imposed, dard the court shall set saiy, comply purposes with the set forth forth the reasons for its decision in written (2) paragraph of this subsection. The findings of fact and conclusions of law. A court, determining particular sen- range sentence outside the standard shall imposed, tence to be shall consider— be a determinate sentence. (1) the nature and circumstances of the of- Departures § guide- 9.94A.390. from the history fense and the and characteristics of lines defendant; excep- If the court finds that an (2) imposed— the need for the sentence tional sentence outside the standard (A) to reflect the seriousness of the of- should be in accordance with fense, law, promote respect for the 9.94A.120(2), subject RCW the sentence is provide just punishment to for the of- only provided to review for in RCW fense; 9.94A.210(4). (B) adequate to afford deterrence to following The are illustrative factors which conduct; criminal may the court consider in the exercise of its (C) protect public from further impose exceptional discretion to an sen- defendant; crimes of the following tence. The are illustrative (D) provide the defendant with needed not are intended to be exclusive rea- exceptional training, educational or vocational sons for sentences. medi- care, (factors Branch, omitted). cal or other correctional treatment State v. manner; (1996), Wash.2d 919 P.2d 1228 is one in the most effective example departed where the court Id. practices of the State Board of Probation that, and Parole indicates while theoreti (2) Any other controlled substance cally a defendant could be sentenced or counterfeit substance classified in statutory and could serve the I, II, III, guilty Schedule or of a sentence, entire average defendant can felony upon conviction thereof expect to receive a minimum sentence imprisonment shall be sentenced to range

within the standard guide of the years, a exceeding pay not five or to lines, or possibly aggravated range, exceeding fine not fifteen thousand paroled and be reaching sometime after ($ 15,000), dollars or both. eligibility serving and well before the max 780-113(f). Thus, § the offense P.S. Therefore, imum portions sentence. those Appellant violating was convicted Pennsylvania’s sentencing scheme punishable by imprisonment exceeding dictate application of enhancements or years. five mandatory upon judicial mínimums based factfinding clearly have the effect of in ¶ However, earlier, as indicated bar- creasing prisoner’s stay jail a based ring application mandatory of a mini- upon judicially those found facts extrane necessitating mum sentence re- different verdict, ous to the the same inas sult, the court must set forth a minimum and Booker:29 present case provides imprisonment. and a maximum term of apt an mandatory illustration of how mini the maximum imprisonment While term of mums sentencing enhancements and/or judge may impose is limited the statu- lead to greater jail time spent upon tory ceiling, the court a mini- impose must

judicial factfinding. mum imprisonment term of is no ¶ 21 Appellant was convicted of one more than half of the maximum sentence count manufacturing marijuana, which 9756(b). § imposed. pro- Pa.C.S. This prohibited § at 35 P.S. 780-113. Vari- vision, effect, ceiling creates a for the 780-113, § ous subsections of 35 P.S. set Thus, light minimum sentence as well. forth the gradings various and maximum implicated máximums punishment for violations of the act. The here, greatest minimum sentence the subsection applicable Appellant pro- legally court could impose would be 30 vides: imprisonment greatest months’ and the (14)

Any person who violates clause 30 to would be minimum/maximum (30) (a) of subsection respect imprisonment.30 upon with to: 60 months’ Based Logically speaking, 29. aggravated respect sentence enhance- lines with assault based necessarily ment increases a sentence because attempt bodily inju- to cause serious found, qualifying once the fact is the enhance- ry typical punish- demonstrates increase in guideline ranges, youth/ ment is added to the Aggravated assault-attempt ment. serious enhancement, 303.9(c), § school 204 Pa.Code bodily injury guideline range has of 22-36 guideline implicated, or a new matrix is dead- However, imprisonment. months’ if the man- enhancement, ly weapon 204 Pa.Code datory provisions of 42 Pa.C.S. Similarly, § 303.10. it cannot be doubted implicated by committing § 9712 are mandatory designed that a minimum is handgun, guidelines crime then the are with punishment increase the that would otherwise mandatory overridden and the minimum of normally by removing possibility attach applied. 60 months must be imposed. that a lesser sentence would be If likelihood, drug greater In all because offenses are sentences than the mini- subject mandatory provisions routinely to the imposed, mum amount were there readily § mandatory of 18 is no dis- would be no need for the mini- Pa.C.S. there Moreover, guide- guideline mums. a reference to the cernible recommendation for the data, of the crime that must be presume an element statistical we can

the above by jury proven beyond reason- court found that had the case, law, In the present 30 to 60 doubt. highest range allowed able pos- re- months, key finding, Appellant have been Appellant would was plants, his 30th and 60th 51 live made leased sometime between sessed at least of the evi- upon preponderance month. court standard, spite done in of the dence it was contrast, man- application inability unanimously agree as to jury’s in provision Ap- datory minimum sentence right fact. The to trial specific this will Appellant case means that pellant’s against exact- designed protect Thus, barring jail. 60 months in spend all nullification. ly this kind cir- unforeseeable completely the almost have Appellant would been cumstance Majority fit to Lastly, as the sees to the both sentenced repercussions to a out the adverse point length of parole and denied for the entire compelled I contrary finding, equally feel a non- stay prison given his had he been potential repercussions out point sentence, mandatory Appellant spend will today. Let me first Majority’s holding judicial jail a result of a more time does repercussions” that “adverse state preponderance finding of fact based legitimate basis over- not constitute Certainly the standard. of the evidence Justice riding protection. a constitutional mandatory average exposed defendant argument the same made O’Connor periods of spend mínimums will increased referencing practical “disastrous” Blakely, application prison time due 314, 124 consequences, 542 U.S. at S.Ct. The ex- mandatory minimum sentences. argument was not seen yet the subject to may not be act amount of time legitimate basis for evis- Majority as a calculation, nonetheless a but precise Why protection. cerating a constitutional time, partic- period substantial real and carry little argument such an would sentenced, who will ularly to the individual “significant adverse re- weight? Because in the state correc- spend have to that time a factor essentially bespeak percussions” I fail to see respect, In this system. tional setting policy and consti- weighed to be possibility Ap- very how this remote trump weighing such protections tutional sen- have served the same pellant would Indeed, repercussion expediency. in the absence of the tence in Booker was conclusion to the Court’s premise minimum invalidates basic rejection of the man- the invalidation Booker. sentencing provisions datory guideline of the federal at the heart course, nothing consti- which were there is Of argue could sentencing scheme. One tying greater pun- infirm about tutionally in federal courts sentencing scheme quantities of contraband ishment a result of Book- However, thrown into chaos as additional was since possessed. Nevertheless, conse- predictable conse- er. having practical quantities are for avoid- not seen as basis quence time increasing the defendant’s quence of by a dictated reasonable ing the result Blakely and Booker jail, under Similarly, of the constitution. application can now be deemed be quantity drugs guideline gravity and the score of 5 marijuana plants. most offense manufacture of range months in closely corresponding guideline would sanctions to 9 is restorative marijua- to deliver possession prior with intent score is prison record where na, category pounds. This has 1 to 10 anguish or mental virtually injury, landmark cases have come embarrassment all or was committed person to the touched repercussions. Wainwright, with Gideon v. receiving gratifi- sexual with the intent of 335, 792, 372 U.S. 83 S.Ct. 9 L.Ed.2d 799 punishable cation. Assault could be (1963), meant that the various States and the classi- imprisonment up to life. Within government supply the federal must find numerous fication of assault one could counsel, indigent with Miranda defendant mandato- sentencing enhancements and/or Arizona, 1602, 384 U.S. 86 S.Ct. cur- minimum sentences which mirror ry (1966), police L.Ed.2d 694 meant that offi- model, this new rent offenses. Under required provide cers would be to warn- of longer there no be an offense would ings prior interrogating prisoners, to or indecent contact. rape, sexual assault Education, v. Board Brown U.S. of simply traditional crimes would These 74 S.Ct. 98 L.Ed. 873 a returned a verdict “assaults.” Once incur of meant that cities would the costs assault, reflecting finding of a guilty integrating schools. touching that there was a non-consensual notwithstanding, 26 The I feel above touching or an invalid consensual obligated point potential out reper- bodily injury, embarrassment pain, caused could cussions which result from the Ma- or anguish or mental in the victim jority’s analysis. Majority provides, providing with the intent of performed holding, whereby via its a model the con- toucher, a gratification sexual “sen- rights by jury proof stitutional trial place take in which tencing hearing” would guilt beyond reasonable doubt can be determine, a judge prepon- a would point they eviscerated to the where are evidence, if en- sentencing derance of the meaningless. Applying rendered the hold- First, present. factors hancement were could, ing Majority, legislature of the if might determine whether a sexu- the court inclined, it were so rewrite the Crimes body part al or intimate of the substantially Code such a manner as to might the court determine touched. Next reduce the number official crimes penetration there had been whether Code, simultaneously Crimes while enact- necessary for the former crime of type ing array a vast “sentencing factors.” so, person if rape, and whether model, legislature In this could create consenting due to incapable touched was general taking offenses have while what (a) (b) disability age, mental or insufficient days been understood since common law (c) from touching or whether the resulted in- be elements of crimes—and could also (d) or forcible compulsion threat of forcible many statutory prolifei'ations clude the “sen- compulsion. Each one the above since—and retitle these elements “sentenc- trigger then either tencing factors” would course, ing sentencing factors.” these Of enhancement to be added province factors would be within the mandatory minimum sentence or a base placed upon trial and the burden sentence. proving respect Commonwealth with prosecutors have often found 28 Since prepon- factor would be challenging prove intercourse derance of the evidence. of threat of forcible occurred as a result instance, involving all offenses the resis- compulsion prevent 27 For that would person person, prosecutor affront to the could be of a reasonable physical tance having prove might

classified as “assault” and be defined feel relief preponder- factor a mere touching of another without license bodily might ance of the evidence and welcome produces pain, valid consent which needing only to convince the court of factors. For simplicity, the bring citizens who cer- by twelve sometimes maximum sentence would default be prejudices jury and, tain with box them. by now, the maximum law allowed as subject prisoner parole a would be Similarly on challenging, at least “minimum” expiration of his sentence. level, is proving academic intent. Whether Actually, one not need to does strain his/ bodily injury, to inflict is intent serious imagination her too much envision such problematic proven aggravat- which has system the a combination of the United cases, kill, ed assault or intent to similarly States Crimes and the Federal Code Sen- problematic attempted homicide system tencing provided a far Guidelines cases, model, under homicide the new in- along path this with the notable difference relegated can tent be to the classification being that under the sys- sentences federal “sentencing trigger of factor” might which prisoner’s tem are determinate are not a minimum sentence much eyes, In paroled.31 Majority’s since greater than the standard sentence a court a mini- imposing would be “simple” assault. and the mum date of incarceration actual aggravated 30 The offense of assault- by the parole date of release would set be by DUI and Homicide Yehicle-DUI could board, pass this new would constitu- model replaced be eliminated and with simply a tional muster. model, In new DUI law. this new once a impairment found the minimal level legislature, Pennsylvania 32 If the satisfy necessary ele- holding, spurred by Majority’s were to ments, the court would take over find system administering institute a crimi- any possible fac- number enhancement justice nal to the one similar described degree might tors. The of intoxication above, Majority would still contend a sentencing factor as well as whether simple this would make distinction anyone act, endangered by severely a so system constitutional which act or harmed killed the act. trial depreciated right model, relegat- causation could also be proof beyond reasonable doubt? Would of sentencing ed to the realm factor. holdings of such a model violate the Blake- model, ly and Booker? the answer to this Under new court If Major- a impose question “yes,” would minimum sentence consis- I believe then myriad fact conclusion in post-trial finding ity wrong tent with has reached the Cole, example, 31. For in United States v. teristics” for Sexual Abuse” re- “Criminal (6th Cir.2004), large F.3d 420 the two defendants quired the number court to consider pled guilty kidnapping, as- offenses potential could affect the factors which sault, during and the use of Id., a firearm crime at n. imposed. ultimate sentence Under States of violence. the United Sen- Thus, although the court Guidelines, potential tencing lengthy list judicial findings kidnapping charge, specific characteristics,” sentencing fac- “offense i.e. respect were made to sexual with abuse/as- tors, kidnap- applicable were to the offense of sault, plead did not a crime to Cole which ping, abduction or unlawful restraint. See guilty. judicial findings These had direct Cole, at 423 359 F.3d n. for a list of offense received, bearing on the Cole but However, characteristics. because or, by jury apparently, spe- were not found charges involving stemmed from an incident plea cifically acknowledged guilty pro- assault, in a guidelines sexual directed the Rather, ceeding. they were found guidelines court to utilize another set of if the of a hear- greater court the conclusion result was a offense level. Similar to kidnapping ing. the offense the “offense charac- present case. I the cor- Since believe “yes,” rect answer is I dissent. SUPPLY, INC., Appellant

PENNSY

AMERICAN ASH CORP. RECYCLING Pennsylvania, Appellee.

Superior Pennsylvania. Court of

Argued Nov. 2005.

Filed March 2006.

Reargument May Denied

Case Details

Case Name: Commonwealth v. Kleinicke

Court Name: Superior Court of Pennsylvania

Date Published: Mar 8, 2006

Citation: 895 A.2d 562

Court Abbreviation: Pa. Super. Ct.