Com. v. Biddle

• Decision Date: 17 December 1991
• Parties: COMMONWEALTH of Pennsylvania v. Kathleen BIDDLE, Appellant.
• Court: Pennsylvania Superior Court

Page 313

601 A.2d 313

411 Pa.Super. 210

COMMONWEALTH of Pennsylvania v. Kathleen BIDDLE, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 21, 1991.

Filed Dec. 17, 1991.

Patrick J. Thomassey, Monroeville, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before McEWEN, FORD ELLIOTT and HESTER, JJ.

FORD ELLIOTT, Judge:

In this case we are called upon to determine whether the Commonwealth has the sole discretion to invoke the mandatory sentencing provisions set forth in 18 Pa.C.S.A. § 7508 in situations where it would otherwise be applicable. For the following reasons, we hold that the Commonwealth does possess sole discretion to invoke the provisions under the statute and, accordingly, vacate the judgment of sentence and remand for resentencing.

Kathleen Biddle entered a guilty plea to two counts of possession of a Controlled Substance (cocaine), ¹ two counts of Possession of a Controlled Substance with Intent to Deliver, ² two counts of Delivery of a Controlled Substance, ³ and one count of Criminal Conspiracy. ⁴ For Delivery of a Controlled Substance, appellant was sentenced to a term of imprisonment of not less than 3 years nor more than 6 years and a concurrent sentence of not less than 4 years nor more than 8 years. A fine of $25,000 was also imposed pursuant to 18 Pa.C.S.A. § 7508. The trial court denied appellant's motions to Withdraw Guilty Plea and to Reconsider and/or Modify sentence. This appeal followed.

According to appellant, she entered a plea of guilty to the drug charges pursuant to a plea bargain agreement with the Commonwealth. ⁵ The agreement between the parties was conditioned upon appellant's cooperation with authorities regarding her knowledge about drug trafficking, and, in return, the Commonwealth would agree to a three year sentence instead of the mandatory sentence under 18 Pa.C.S.A. § 7508. Nevertheless, the sentencing court rejected the agreement between the Commonwealth and appellant and sentenced her according to the mandatory sentencing provisions of 18 Pa.C.S.A. § 7508.

The appellant contends that the Commonwealth has the discretion to invoke the mandatory sentencing provisions and the Commonwealth agrees. ⁶ The mandatory minimum sentencing provision of 18 Pa.C.S.A. § 7508 states, in pertinent part:

(b) Proof of sentencing.--Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

(c) Mandatory sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or pre-release or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

18 Pa.C.S.A. § 7508(b), (c).

Notwithstanding the arguments made by the Commonwealth and appellant during appellant's sentencing hearing, the sentencing court imposed the mandatory sentence because it believed that it was bound by the law of 18 Pa.C.S.A. § 7508 in cases where the court determined that the provisions of the statute were applicable. The Commonwealth and appellant both maintain that the issue at bar was resolved by our supreme court in Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987).

In Pittman, the defendant pleaded guilty to armed robbery. Pursuant to a plea bargain agreement, the Commonwealth did not give notice that it intended to proceed under the mandatory sentencing provision under 42 Pa.C.S.A. § 9712, sentences for offenses committed with firearms. The prosecutor also informed the sentencing court that the Commonwealth was not requesting the mandatory minimum sentence. Defendant received a sentence of two to four years imprisonment. Subsequently, the court, acting on its own motion, vacated the original sentence because it did not conform to the mandatory sentencing provision and notified the defendant that 42 Pa.C.S.A. § 9712 was applicable to his case. The sentencing court determined that, regardless of whether the Commonwealth requests that the mandatory minimum provision be invoked to impose sentence, whenever a defendant is convicted of an enumerated crime and the evidence indicates that the defendant used a firearm to commit the crime, the mandatory provisions of section 9712 require that a sentence of at least five years imprisonment be imposed. The court resentenced defendant to five to ten years imprisonment. Section 9712, sentences for offenses committed with firearms, is substantially similar to 18 Pa.C.S.A. § 7508 and reads in pertinent part:

(b) Proof at sentencing.--Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

(c) Authority of court in sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

42 Pa.C.S.A. § 9712(b), (c).

The question in Pittman was whether the sentencing court was permitted, in the absence of the Commonwealth's invocation of the mandatory minimum sentencing provision, to sentence Pittman to a term of less than five years imprisonment, or whether the court was required by section 9712 to resentence defendant to a minimum of five years. To resolve the issue raised by the defendant, the court interpreted the meaning of the phrase, "reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing," contained in subsection (b) of the statute. The supreme court reasoned that

If the Commonwealth had no option but to request imposition of a minimum sentence of five years in every case in which a firearm was used, presumably the statute would not have referred to the Commonwealth's 'intention to proceed' under the section. Moreover, in the case at bar, even if it is assumed, arguendo, that the court, not the Commonwealth, could provide notice of an intent to proceed under the act, it could not have provided notice of the Commonwealth's intent to proceed under the act, for the Commonwealth had no such intent, as it indicated at the sentencing hearing, supra.

Pittman, 528 A.2d at 141-142 (emphasis in original).

The supreme court concluded that the mandatory provisions of section 9712 may not be imposed absent notice of the Commonwealth's intention to proceed, and it was therefore error for the sentencing court to apply the mandatory provisions without the Commonwealth's notice.

The case sub judice and Pittman are analogous. In both cases, the mandatory minimum sentencing provisions were applicable. The defendants in both instances pleaded guilty, and the Commonwealth, pursuant to an agreement, did not file notice that it intended to proceed under the mandatory sentencing provision. Here, as in Pittman, the sentencing court imposed the mandatory without the Commonwealth's notice to proceed under the mandatory section. The mandatory provisions of section 9712 are virtually indistinguishable from the provisions set forth at section 7508(b). Both sections 9712(b) and 7508(b) contain the language, "reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing." Our supreme court has construed this language to mean that the Commonwealth does have sole discretion to invoke the mandatory minimum sentencing provision. We find that Pittman is controlling and resolves the issue before us.

The trial court, on the other hand, believes that the mandatory provisions of section 9712 are distinguishable from the mandatory provisions of section 7508. As the trial court aptly notes, this is a case of statutory interpretation. The rules of statutory construction are applicable when interpreting the law. 1 Pa.C.S.A. § 1901 et seq. Where the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage. 1 Pa.C.S.A. § 1903. Since section 7508 is a penal provision, it must be strictly construed. See, generally, 1 Pa.C.S.A. § 1928. To ascertain the meaning of a statute, we must consider the intent of the legislature and are permitted to...