Com. v. Butler

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: ZAPPALA, Justice.
• Citation: 760 A.2d 384,563 Pa. 324
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Damon BUTLER, Appellee.
• Decision Date: 27 October 2000

760 A.2d 384
563 Pa. 324

COMMONWEALTH of Pennsylvania, Appellant,
v.
Damon BUTLER, Appellee

Supreme Court of Pennsylvania.

Argued February 1, 2000.

Decided October 27, 2000.

760 A.2d 385

Catherine Marshall, Hugh J. Burns, Jr., Philadelphia, for Com

John W. Packel, Peter Rosalsky, Philadelphia, for Damon Butler.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

In this direct appeal we are asked to determine whether the Philadelphia County Court of Common Pleas properly found the provisions of 42 Pa.C.S. § 9714, which impose an enhanced mandatory sentence when a person is found to be a high risk dangerous offender, to be unconstitutional because the statutory scheme places the burden on the defendant to rebut the presumption that he is a high risk dangerous offender by clear and convincing evidence. For the reasons that follow, we affirm.¹

On February 18, 1998, at approximately 12:30 p.m., the victim, Marco Rivera, was entering the basement area of a store through a street level stairway. Appellee put a gun to Rivera's head and demanded that he remove a gold necklace he was wearing. When Rivera hesitated, Appellee snatched the necklace from his neck. Appellee then asked Rivera if he had any money to which Rivera replied he did not. Thereafter, Appellee fled. Several days later, Rivera saw Appellee in the same area and summoned police.

Appellee was arrested and charged with robbery, theft, receiving stolen property, simple assault, reckless endangerment, possession of an instrument of crime, carrying a firearm without a license, carrying a concealed firearm without a license, terroristic threats and possession of a firearm by a former convict. Following a bench trial on July 9, 1998, Appellee was convicted of all of the foregoing charges.

Prior to sentencing, the Commonwealth was made aware that Appellee had previously pled guilty to a charge of aggravated assault. Accordingly, the Commonwealth requested that the court apply 42 Pa.C.S. § 9714(A)(1), which has been popularly referred to as a "strike two" sentencing provision, and sentence Appellee to a mandatory ten to twenty year sentence.

Section 9714(a)(1) specifies that

[a]ny person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence² and has not rebutted the presumption of high risk dangerous offender ... be sentenced to a minimum sentence of ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.

(Emphasis added). Subsection (a.1), entitled "Mandatory maximum," provides that

[a]n offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence....

The provision relating to the "high risk dangerous offender presumption" is found at subsection (b). This section states:

For the purposes of subsection (a), an offender shall be presumed to be a high risk dangerous offender and shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:

760 A.2d 386

(1) The offender was previously convicted of a crime of violence. The previous conviction need not be for the same crime as the instant offense for this section to be applicable.

(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention or on probation or parole shall not be considered in computing the relevant seven-year period. Convictions for other offenses arising from the same criminal transaction as the instant offense shall not be considered previous convictions for the purpose of this section. For purposes of this section previous conviction shall include any conviction, whether or not judgment of sentence has been imposed or litigation is pending concerning that conviction.

Subsection (c)(1) of Section 9714 provides that

a court shall hold a hearing for an offender presumed to be a high risk dangerous offender pursuant to the provisions of subsection (b). The court shall schedule a hearing and receive such evidence from the offender as may be relevant to whether the presumption shall apply. If the offender presents evidence in opposition to the presumption, the attorney for the Commonwealth may present evidence in support of the presumption.

Subsection (c)(2) then specifies twelve case specific factors, which the court is to consider in making its determination of whether the offender has rebutted the presumption.

The trial court found Section 9714 to be unconstitutional and refused to impose a mandatory sentence of ten to twenty years of imprisonment pursuant to the foregoing provisions as requested by the Commonwealth.³ Instead, the court sentenced Appellee to a term of imprisonment of five to ten years on the robbery charge and lesser concurrent sentences on the remaining charges. Specifically, the court found that the provision impermissibly sets up the presumption that the offender is a high risk dangerous offender, then places the burden of proof on the offender to rebut the presumption by clear and convincing evidence. The court likened the scheme set forth in Section 9714 to that of the Registration of Sexual Offenders Act, 42 Pa.C.S. §§ 9791-9799.6, which, at the time of sentencing, the Superior Court had found to be unconstitutional in Commonwealth v. Halye, 719 A.2d 763 (Pa.Super.1999).⁴ Thus, the court concluded that Section 9714 violated Appellee's procedural due process rights pursuant to both the state and federal constitutions since, in the court's view, the burden of demonstrating that an offender is a high risk dangerous offender must rest with the Commonwealth.

The Commonwealth asserts that the trial court erred in concluding that Section 9714, like the Registration of Sexual Offenders Act, violates due process. Specifically, the Commonwealth notes various differences between Section 9714 and the Registration of Sexual Offenders Act, which, in its view, make the two distinguishable. The Commonwealth points out that this Court found the Registration of Sexual Offenders Act to be unconstitutional because it required the trial court to make a subjective determination of whether the offender was a "sexually violent predator," but did not require the prosecution to demonstrate this fact; rather, the Act placed the burden on the offender to

760 A.2d 387

disprove his or her status as a sexually violent predator. The Commonwealth further notes that our Court concluded in Williams that because the question of whether an offender was a sexually violent predator was not "a straightforward issue susceptible of objective proof" where the "risk of error was slight," the risk of error, and thus any burden of proof, must be borne by the prosecution. Appellant's brief at 14, citing Williams, 733 A.2d at 607

Conversely, the Commonwealth notes that Section 9714 is different from the Registration of Sexual Offenders Act in that it places upon the Commonwealth the initial burden of demonstrating that the offender was convicted of a "crime of violence" within the past seven years before the questioned presumption becomes applicable.⁵ The Commonwealth further notes that the existence of the required prior offense is a straightforward issue susceptible of objective proof and the risk of error in making this finding is slight. Thus, the Commonwealth maintains that Section 9714 comports with due process since the prosecution must prove by a preponderance of the evidence any aggravating factors that require a harsher sentence.

Appellee counters that the determination of whether a defendant is a high risk dangerous offender is made under the statute without requiring the Commonwealth to prove the case-specific factors relating to high risk dangerous offenders. This, Appellee maintains, violates due process. Appellee argues that the ultimate judicial determination of whether an offender is a high risk dangerous offender is neither straightforward nor susceptible of objective proof as it requires the court to apply a list of disparate factors in making its assessment. Additionally, the Appellee points out that many of the case specific factors listed in Section 9714 are the same factors listed in the...