Com. v. Aponte

CourtUnited States State Supreme Court of Pennsylvania
Citation855 A.2d 800,579 Pa. 246
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Melvin APONTE, Appellant.
Decision Date19 August 2004

855 A.2d 800
579 Pa. 246

COMMONWEALTH of Pennsylvania, Appellee,
Melvin APONTE, Appellant

Supreme Court of Pennsylvania.

Argued October 23, 2002.

Decided August 19, 2004.

855 A.2d 802
Robin S. Forrest, Philadelphia Leonard N. Sosnov, John Packel, Philadelphia, for Melvin Aponte

Hugh J. Burns, Joan Weiner, Philadelphia, for Com.



Justice EAKIN.

We granted allowance of appeal to determine whether 35 P.S. § 780-115(a), which doubles the statutory maximum penalty upon proof of a prior conviction for a similar offense, without requiring proof beyond a reasonable doubt before a jury, violates due process under the Pennsylvania and United States Constitutions. We conclude § 780-115(a)'s sentencing enhancement is constitutionally valid, and affirm.

After willfully absenting himself from trial, appellant was tried in absentia before a jury which convicted him of possession with intent to deliver a controlled substance (PWID), and conspiracy. A presentence report was ordered, but appellant remained a fugitive. The presentence investigator sent a letter to appellant's mother, and gathered information "from the Court Deferred File (R.O.R. background information in that file), the prison computer information (background information is in there also), the Family Court File # 345614 which was generated as a result of one of [appellant's] brother's juvenile arrest [sic], and from the Probation file." Pre-Sentence Report, 6/13/01, at 1. The report also listed the Connecticut State Prison-Parole Records as a source of information. Id., at 3. The report noted appellant had three convictions: 1994 Felony Drugs in Connecticut; 1997 Felony Drugs in Philadelphia; and the present matter. Id., at 2.

Because this was appellant's third drug offense, the sentencing court applied the sentencing enhancement in 35 P.S. § 780-115:

Second or subsequent offense
(a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

35 P.S. § 780-115(a) (emphasis added).

Accordingly, the trial court sentenced appellant, in absentia, to 10-20 years imprisonment for possession with intent to deliver-twice the statutory maximum "otherwise authorized." The court also imposed twice the statutory maximum sentence for appellant's conspiracy conviction.

On appeal, the Superior Court affirmed the sentence. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the court concluded the Commonwealth need not have pled the prior convictions in the information, nor was it required to establish them beyond a reasonable doubt before a jury. However, the Superior Court vacated the enhanced sentence for conspiracy and remanded for resentencing, concluding § 780-115(a) applies only to similar drug offenses, not the underlying inchoate crimes. After reargument was denied, appellant sought and was granted review by this Court.1

855 A.2d 803
Appellant argues 35 P.S. § 780-115(a) violates due process under the United States and Pennsylvania Constitutions, because it raises the maximum penalty for recidivist drug offenders, making the prior convictions an element of the "second or subsequent offense" without requiring they be proven beyond a reasonable doubt before a jury

"[W]e begin our analysis by recognizing that there is a strong presumption in the law that legislative enactments do not violate the constitution. Moreover, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute." Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 165 (1996) (citations omitted). As a matter of statutory construction, we presume "the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth." 1 Pa.C.S. § 1922(3). A statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of a finding of constitutionality. Commonwealth v. Hendrickson, 555 Pa. 277, 724 A.2d 315, 317 (1999).

Appellant first claims § 780-115 violates the Sixth2 and Fourteenth Amendments to the United States Constitution. In Apprendi v. New Jersey, supra, the United States Supreme Court squarely addressed the issue of whether a fact which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Apprendi involved a "hate crime" statute which provided for an enhanced sentence if the trial judge found, by a preponderance of the evidence, the defendant committed the crime to intimidate a person or group because of race. See N.J. Stat. Ann. § 2C:44-3(e) (West Supp.2000). The defendant pled guilty to possession of a firearm for an unlawful purpose, a second degree offense punishable by 5-10 years imprisonment. Id., §§ 2C:39-4(a), 2C:43-6(a)(2). Under the hate crime enhancement, the authorized prison term for second degree offenses was 10-20 years. Id., § 2C:43-7(a)(3). The trial judge found the defendant's actions were taken with the purpose of intimidating

855 A.2d 804
the African-American family who lived in the house where he fired the shots, and imposed the enhanced sentence. The New Jersey Superior and Supreme Courts affirmed

The United States Supreme Court reversed, holding the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, as applied to the states through the Fourteenth Amendment, require:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.... "It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established beyond a reasonable doubt."

Apprendi, at 490, 120 S.Ct. 2348 (emphasis added) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)).

Prior to Apprendi, the Supreme Court first addressed the issue of what constitutes a "sentencing factor" in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan involved a challenge to Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712 (1982), which contained a provision mandating a minimum sentence of five years imprisonment if the judge found, by a preponderance of the evidence, the defendant visibly possessed a firearm while committing one of the specified felonies. Id., § 9712(a). The High Court concluded the statute did not violate the constitutional requirement that the State bear the burden of proving guilt, but noted the statute at issue did not "alter[] the maximum penalty for the crime committed ... it operate[d] solely to limit the sentencing judge's discretion in selecting a penalty within the range already available to it[,]" McMillan, at 87-88, 106 S.Ct. 2411 (emphasis added), and that the appellant's argument that visible possession of a firearm was an element of the offense "would have at least more superficial appeal if a finding of visible possession exposed [him] to greater or additional punishment ...." Id., at 88, 106 S.Ct. 2411 (emphasis added).

Over a decade after McMillan, the Supreme Court again faced the question of the distinction between a "sentencing factor" and an "element" in Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres involved a federal statute authorizing an increase in the maximum sentence for an alien found in the United States after being deported, if the initial deportation was subsequent to a conviction for an aggravated felony. 8 U.S.C. § 1326(b)(2). The appellant had pled guilty to the offense, admitting he had three aggravated felony convictions before his initial deportment; however, on appeal, he argued he was not subject to the enhanced sentence because the indictment failed to mention the prior convictions. The Supreme Court held § 1326(b)(2) was a penalty provision which did not define a separate offense; therefore, the prior aggravated felony convictions did not have to be charged in the indictment, Almendarez-Torres, at 226-27, 118 S.Ct. 1219, or found by a jury. Id., at 235, 118 S.Ct. 1219.

One year later, the Supreme Court clarified the holding in Almendarez-Torres, noting, "Congress had never clearly made prior conviction an offense element where the offense conduct, in the absence of recidivism, was independently unlawful." Jones v. United States, supra (federal carjacking statute, 18 U.S.C. § 2119, defined three distinct offenses, rather than one

855 A.2d 805
offense with three maximum sentence options; each offense must be charged, submitted to jury, and proven beyond reasonable doubt).3

Apprendi, decided one year after Jones, made clear that any fact which increases the maximum penalty must be submitted to a jury and proved beyond a reasonable doubt.4 However, the Apprendi Court was careful to delineate prior convictions as an exception to this requirement, for the following reasons:

Whereas recidivism "does not relate to the commission of the offense" itself, ... New Jersey's biased purpose inquiry goes precisely to what happened in the "commission of the offense." Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which a defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find

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