COMMONWEALTH of Pennsylvania, Appellee, v. Geneva SPELLS, Appellant.
Superior Court of Pennsylvania.
Argued Sept. 12, 1991. Filed July 1, 1992.
612 A.2d 458
Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com.
Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
HUDOCK, Judge:
This is an appeal from the judgment of sentence imposed upon Spells after she was found guilty, following a non-jury trial with stipulated facts, of aggravated assault,1 simple assault,2 possession of an instrument of crime,3 and reckless endangerment of another person.4 Timely-filed post-verdict motions were denied by the trial court and Spells was sentenced to the mandatory minimum sentence of five years pursuant to
The sole issue raised by Spells on appeal is as follows:
Is not a mandatory five year to ten year sentence of incarceration for aggravated assault unlawful, as it is unconstitutionally disproportionate and irrational when
aggravated assault is a lesser included offense of attempt[ed] murder of the first degree, a crime for which there is no mandatory sentence?
Appellant‘s Brief at p. 2.
The facts, as stipulated to by the parties, were summarized by the trial court as follows:
On September 18, 1987, Geneva Spells purchased a gun in Dallas, Texas where she lived and flew to Philadelphia to shoot her estranged husband. (N.T., Preliminary Hearing, 10/28/87, pg. 14). Finding her husband at work she walked up to him and from a distance of one foot, pulled the trigger of the loaded gun pointed directly at his head. (N.T., Preliminary Hearing, pg. 6). The complainant avoided death because the gun had a very tight trigger which the defendant could not operate. (N.T., 11/6/89, p. 24-25; 5/24/90, pg. 3) [.] When the gun did not go off she repeatedly pulled the trigger to discharge the gun. (N.T., pg. 6, 15). Security guards took the weapon from the defendant and arrested her. That same day the defendant described the incident as follows: “I pointed it at him and pulled the trigger as hard as I could, but it did not go off. I kept pulling the trigger, and then he took it from me. I did this because of past problems over the past 21 years. The way I feel right now, I would do it again, and the next time I will take the time to do it more properly.” (N.T., 10/28/87, pg. 15).
Trial Court Opinion at pp. 1-2.
While Spells’ own admission indicates that she intended to kill her estranged husband by pointing a gun at his head and pulling the trigger, the Commonwealth did not charge Spells with criminal attempt murder. In her post-verdict motions, Spells argued to the trial court that it was error to consider the aggravated assault conviction as a first degree felony, because it is a lesser included offense of attempted murder, a second degree felony. Spells claimed it would be irrational, fundamentally unfair and arbitrary to grade a greater offense less severely than a lesser included offense; moreover, such a grading would violate several constitution-
Section 9712 provides, in pertinent part:
§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence.—Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in
18 Pa.C.S. § 3701(a)(1)(i) , (ii) or (iii) (relating to robbery), aggravated assault as defined in18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
We note again that Spells was only charged and convicted of aggravated assault. The essence of Spells’ argument is that aggravated assault is a lesser included offense of attempted murder, a crime with which Spells was not charged. We need not address, therefore, this part of her argument. Assuming arguendo that aggravated assault is a lesser included offense of attempted murder, when only aggravated assault is charged it is considered in and of itself, because no offense within which it could be included or into which it may merge exists. See Sutton v. Maryland, 886 F.2d 708 (4th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 628 (1990) (when only common law assault is charged, it stands alone and is not a lesser included offense because there is no other offense into which it may merge). Thus, we forgo a lesser included offense analysis. The issue becomes then whether the sentence she received for aggravated assault violates one or more of her state and federal constitutional rights. We shall discuss each alleged violation separately.
In sum, a court‘s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem, 463 U.S. at 292, 103 S.Ct. at 3010.
Spells correctly identifies these three objective criteria. However, while she argues that the first two criteria are the most critical, Spells completely fails to apply the first criterion to the facts of her case, apart from one sentence in which she raises her “merger” claim. This omission is understandable in light of the fact that the mandatory minimum provision of section 9712 has been repeatedly attacked as violating different constitutional rights and yet has been repeatedly upheld. See, e.g., Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986), alloc. denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989) (section 9712 does not violate the prohibition against cruel and unusual punishment); Commonwealth v. Irving, 347 Pa.Super. 349, 500 A.2d 868 (1985) (Mandatory Minimum Sentencing Act is not violative of equal protection); Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff‘d. sub nom. Wright v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (section 9712 does not unconstitutionally deny substantive due process by requiring proof of visible possession of a weapon to be made by a preponderance of the evidence).
Instead of discussing all three of the objective criteria of Solem, Spells relies on the second one as if it were the exclusive test for determining cruel and usual punishment. Such an argument is clearly incorrect. In the recently decided Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the United States Supreme Court again considered the propriety of the proportionality test of Solem. In an opinion concurring in part and concurring in the judgment, Justice Kennedy, joined by Justices O‘Connor and Souter, attempts to reconcile the Court‘s conflicting opinions on the subject. Justice Kennedy recognized that the Eighth Amendment‘s cruel and unusual punishment clause encompasses a narrow proportionality principle that applies to non-capital cases.8 In reviewing earlier cases which discuss the proportionality element of cruel and
The first of these principles is that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is “properly within the province of the legislatures, not courts.” [Rummel v. Estelle, 445 U.S. 263, 275-76, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382, (1980)].... The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature.... Thus, reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. Solem, supra, [463 U.S.] at 290 [103 S.Ct. at 3009]....
The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory....
Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure....
The fourth principle at work in our cases is that proportionality review by federal courts should be informed by “‘objective factors to the maximum possible extent.‘” Rummel, supra, [445 U.S.] at 274-275, [100 S.Ct. at 1139], quoting Coker [v. Georgia] 433 U.S., [584] at 592 [97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)] (plurality opinion). See also Solem, supra, [463 U.S.] at 290 [103 S.Ct. at 3009]. The most prominent objective factor is the type of punishment imposed.... By contrast, our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years. Rummel, supra, [445 U.S.] at 275 [100 S.Ct. at 1140].... Although “no penalty [is per se constitutional,” Solem [463 U.S.] at 290, 103 S.Ct. at 3009], the relative lack of
All of these principles—the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors—inform the final one: the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime. Solem, supra, [463 U.S.] at 288, 303 [103 S.Ct. at 3008-3016].
Harmelin, 111 S.Ct. at 2703-2704.
Interpreting the three objective factors established by Justice Powell in Solem, Justice Kennedy found that Solem did not establish a rigid three-part test. While recognizing Solem‘s holding that, in determining unconstitutional disproportionality, no one factor will be dispositive in a given case, Solem, 463 U.S. at 291, n. 17, 103 S.Ct. at 3010, n. 17, Justice Kennedy opined that one factor may nevertheless determine the constitutionality of a particular sentence:
Solem is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review. The Court stated that “it may be helpful to compare sentences imposed on other criminals in the same jurisdiction,” and that “courts find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.” Id., at 291-92 [103 S.Ct. at 3010-3011].... It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intra- and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality....
Harmelin, 111 S.Ct. at 2706-2707.9 Justice Kennedy then concluded that, due to the serious nature of Harmelin‘s crime, i.e., possession of more than 650 grams of cocaine, no such comparative analysis was needed.10
The seriousness of the crime with which Spells was convicted cannot be questioned. As stated above, a mandatory five year minimum sentence for offenses committed with firearms has repeatedly withstood constitutional challenge. Under the Harmelin standard, a comparative analysis is not needed. Therefore, the fact that the “more serious” crime of attempted murder does not likewise carry a mandatory minimum becomes irrelevant.11 Accordingly, under the current status of the proportionality principle in regard to the constitutional protection against cruel and unusual punishment—a protection coextensive with protections provided by our state constitution—Spells mandatory
Spells also claims her sentence violates the due process and equal protection rights afforded the citizenry of Pennsylvania by both the state constitution and its federal counterpart. We will briefly discuss and dispose of each claim separately.
Once again, we note that section 9712 has withstood constitutional challenge on equal protection grounds. Commonwealth v. Irving, supra. Insofar as Spells alleges an equal protection violation because the “more serious” crime of attempted murder is not included within the “attempt” variety of crimes listed in section 9712 and, therefore, has no mandatory minimum, we are not persuaded. The fact that the legislature may create different penalties for similar kinds of criminal conduct, leaving application of the penalties to the prosecutor‘s discretion, creates no classification at all, and does not, therefore, raise an equal protection issue. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). Moreover, the fact that an attempted murder committed with a firearm is not included within section 9712, while seemingly illogical, is of no consequence.12 As this Court has stated, “This argument fails because the equal protection clause does not force the legislature to choose between attacking all aspects of a problem or not at all.” Commonwealth v. Hoover, 343 Pa.Super. 372, 376, 494 A.2d 1131, 1134 (1985) (citing Dan-
Lastly, Spells challenges her sentence on both state and federal due process grounds. According to this argument, delegating authority and power to the district attorney to subject a defendant to a mandatory minimum by charging her with aggravated assault, when the “greater” crime of attempted murder carries no such mandatory minimum, is a deprivation of the due process rights afforded Spells by both the state and federal constitutions. In essence, Spells claims that “[the Commonwealth‘s] constitutional obligation to prove the commission of offenses beyond a reasonable doubt is fatally eviscerated if the Commonwealth can chose to prove less and be rewarded by obtaining more—here a mandatory sentence.” Spells’ Brief at p. 22. We are not persuaded.
The charging function is totally discretionary with the district attorney, both initially and as to which charges to pursue. U.S. v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980). The fact that section 9712 vests the prosecutor with the discretion to determine when the mandatory sentencing provisions will apply does not violate the doctrine of due process of law. Commonwealth v. Michael, 352 Pa.Super. 345, 507 A.2d 1263 (1986). Spells’ final constitutional challenge is likewise meritless.
Judgment of sentence affirmed.
WIEAND, J., files a concurring opinion in which BECK, J., joins.
WIEAND, Judge, concurring.
I concur in the decision to affirm the judgment of sentence. I am unable to conclude that appellant‘s sentence in this case was so disproportionate to her crime that it constituted cruel and unusual punishment. Nevertheless, I feel constrained to observe that it strains both logic and reason to impose a more serious penalty for aggravated
I am also unable to discern the legislature‘s logic in imposing a mandatory minimum sentence for visibly possessing a firearm during the commission of an aggravated assault, while not imposing a mandatory minimum sentence for the visible possession of a firearm during an attempted murder.
Perhaps it would be advisable for the legislature to reevaluate the grading scheme for the offenses of aggravated assault and attempted murder, as well as the exclusion of attempted murder from the purview of the mandatory minimum sentencing provisions.
BECK, J., joins in this concurring opinion.
Notes
Finally, Spells’ argument fairs no better under a separate analysis of the Pennsylvania Constitution. Employing such an analysis, Spells would need to prove that her sentence “shock[s] the moral conscience of the community,” Commonwealth v. Sourbeer, 492 Pa. 17, 33, 422 A.2d 116, 123 (1980), and that the “most accurate indicators of ‘societal standards of justice’ are the enactments of the duly elected representatives in the legislature....” Commonwealth v. Hill, 379 Pa.Super. 34, 40, 549 A.2d 583, 586 (1988), alloc. denied, 521 Pa. 618, 557 A.2d 721 (1989) (citation omitted). Because Spells has not argued, apart from a “merger” claim, that the harshness of the penalty is disproportionate to the seriousness of the crime with which she was charged, we find it unnecessary to engage in a separate state constitutional analysis.
Although Justices Kennedy, O‘Connor and Souter did not agree on overruling Solem, in all other respects the Kennedy opinion functions as a majority opinion, and constitutes a “joint opinion,” similar to those in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (treats Gregg, Proffitt, and Jurek, which were joint opinions, as precedent).
Spells would fair no better under this analysis. As stated above, Spells has presented no argument to this Court, apart from the lesser included analysis which is not presently before us, that would indicate that her sentence is too harsh given the gravity of the offense she committed.