Com. v. Gordon

• Decision Date: 28 December 2007
• Docket Number: No. 46 EAP 2006.,46 EAP 2006.
• Citation: 942 A.2d 174
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edward GORDON, Appellant.
• Court: Pennsylvania Supreme Court

942 A.2d 174

COMMONWEALTH of Pennsylvania, Appellee, v. Edward GORDON, Appellant.

No. 46 EAP 2006.

Supreme Court of Pennsylvania.

Argued April 16, 2007.

Decided December 28, 2007.

Karl Baker, Esq., Peter Rosalsky, Esq., Defender Association of Philadelphia, Philadelphia, for Edward Gordon.

Hugh J. Burns, Jr., Esq., Peter Carr, Philadelphia District Attorneys Office, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice BALDWIN.

In this matter, we are called to resolve whether Appellant Edward Gordon's constitutionally guaranteed right to trial by jury was violated. We granted allocatur limited to resolution of whether it violates the United States and/or Pennsylvania Constitutions when a judge, not a jury, finds by a preponderance of the evidence, not beyond a reasonable doubt, that the defendant has been convicted of multiple crimes of violence arising from separate criminal transactions.

The issue arises in the context of Appellant's challenge to the constitutionality of the "Three Strikes" sentencing provision of 42 Pa.C.S. § 9714 on grounds that it violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny.¹, ² It seems to be a settled question in Pennsylvania that Apprendi-based challenges raise questions related to the legality of a sentence, and not the discretionary aspects of it. See e.g. Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.2007) ("`[I]llegal sentence' is a term of art that our Courts apply narrowly, to a relatively small class of cases [including ...] claims implicating the rule in Apprendi...."). When addressing such questions of law, we employ a plenary scope of review. See e.g. C.B. ex rel. R.R.M. v. Com., Dept. of Public Welfare, 567 Pa. 141, 148, 786 A.2d 176, 180-81 (2001). Our standard of review is de novo. See South Newton Twp. Electors v. South Newton Twp. Sup'r, Bouch, 575 Pa. 670, 674, 838 A.2d 643, 645 (2003). For reasons explained in detail below, we affirm the decision of the Superior Court. The factual background in this matter is as follows.

On February 28, 2002, seventeen-year old Dion Johnson, walking down a street near his home in Philadelphia, was hustled by two gun-wielding men into a waiting car. One of the two men was Appellant. A third assailant then drove the group to a telephone booth from which Johnson's father was called and informed of the kidnapping. Then, blindfolded, Johnson was then taken to an unfamiliar house.

Over the next day and a half, Johnson was tied to a chair, and his captors repeatedly threatened him with firearms, including the cycling of an unloaded handgun behind his head. Ransom demands were repeatedly made of Johnson's father, and the men threatened to cut off one of Johnson's fingers. At one point, Johnson was driven back to the phone booth so that his father could hear Johnson's voice, presumably to prove that his son remained alive. The captors demanded $50,000 from Johnson's father. After Johnson was taken back to the house, only one of the captors remained with Johnson; the other two men left the premises for reasons explained below. Eventually, the sole remaining captor grew bored and left Johnson by himself. Once alone, Johnson broke free, left the house, and contacted police. Commonwealth v. Gordon, No. 0204-1438 1/3, slip op. at 2-3 (Ct. of Corn. Pleas of Philadelphia Cty. July 22, 2004) (Trial Ct. slip op.).

Appellant and his co-conspirators were apprehended as a result of Johnson's father's collaboration with the police. Following the ransom calls, Johnson's father arranged to pay the kidnappers a total of $27,000. A bag containing the purported ransom money was then dropped off by Johnson's father at a prearranged location. Although the bag had only seven dollars and police forms in it, Appellant and one of his partners picked up the bag shortly after it was dropped off. When the police announced themselves, a foot chase ensued, during which both suspects dropped handguns. Appellant's partner was observed to have dropped the ransom bag. Both men were arrested; each made incriminating statements while being held in neighboring cells at the police station. Id. at 3. Following a trial that concluded on March 3, 2004, Appellant was convicted of kidnapping (18 Pa.C.S. § 2901), conspiracy (18 Pa.C.S. § 903) and two violations of the Uniform Firearms Act (18 Pa.C.S. § 6101). Trial Ct. slip op. at 5.

At the April 26, 2004 sentencing hearing, it was stipulated by the parties that official court records would reveal Appellant's two prior first-degree felony convictions of robbery. Also at the sentencing hearing, the Commonwealth provided certified court records that indicated Appellant had been sentenced to twenty-five to fifty years of imprisonment on December 19, 2003 for yet another first-degree felony robbery conviction.³

Following the sentencing hearing, Appellant was sentenced to life in prison upon conviction of kidnapping pursuant to the mandatory sentencing provision of 42 Pa. C.S. § 9714.⁴ Section 9714 provides in relevant part as follows Sentences for Second and Subsequent Offenses.

(a) Mandatory sentence.

...

(1) Any 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 violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).

(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

(a.1) Mandatory maximum.

An offender sentenced to a mandatory. minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating to sentence of imprisonment for felony) or any other provision of this title or other statute to the contrary.

...

(d) 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 sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section....

...

(g) Definition.

As used in this section, the term "crime of violence" means murder of the third degree, voluntary manslaughter aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.

42 Pa.C.S. § 9714 (as amended December 20, 2000). (emphasis added).⁵ Appellant was further sentenced to seventeen-to-thirty-four years of incarceration for the conspiracy and the firearms violations, to run consecutive to the life sentence. A direct appeal followed. Trial Ct. slip op. at 5.

Before the Superior Court, Appellant raised several challenges. For purposes of the limited grant of review allowed by this Court, Appellant argued that his right to a trial by jury, guaranteed by the United States and Pennsylvania Constitutions, was violated by application of the sentencing provisions of Section 9714. He contended that he was entitled to have a jury, not a judge, assess the interrelatedness of his prior crimes and that Section 9714, which instructs the sentencing court to make this determination by a preponderance of the evidence, is therefore constitutionally infirm.⁶ Commonwealth v. Gordon, No. 1326 EDA 2004, slip op. at 6-7 (Pa.Super. Ct. April 20, 2006) (Super. Ct....