Com. v. Kleinicke

CourtSuperior Court of Pennsylvania
Citation895 A.2d 562
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. William E. KLEINICKE, Appellant.
Decision Date08 March 2006

Douglas P. France, York, for appellant.

Scott A. McCabe, Asst. Dist. At York, for Com., appellee.



¶ 1 William E. Kleinicke appeals from the judgment of sentence of five years imprisonment and a $50,000 fine that was imposed after he was convicted of possession with intent to manufacture a controlled substance, marijuana, in violation of 35 P.S. § 780-113(a)(30). This conviction carried a five-year maximum sentence under 35 P.S. § 780-113(f)(2). Due to penalties applicable to possession of various amounts of marijuana imposed pursuant to 18 Pa.C.S. § 7508, Appellant's minimum sentence was increased to be coextensive with his maximum sentence.

¶ 2 In this appeal, we consider whether Appellant's sentence violated the Supreme Court's pronouncements in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After careful review, we conclude that the principles for which these cases stand were not implicated because 18 Pa.C.S. § 7508 merely increased the minimum sentence and not Appellant's maximum term of imprisonment beyond the statutory maximum authorized by the jury's verdict under 35 P.S. § 780-113.1 Therefore, we affirm.

¶ 3 On August 31, 2001, police executed a search warrant at Appellant's residence at 16651 Round Hill Church Road in Stewartstown, Hopewell Township, York County. The search warrant was based upon an affidavit of probable cause dated August 31, 2001, and prepared by Pennsylvania State Police Officer Craig B. Fenstermacher. The affidavit averred the following: Officer Fenstermacher met with a confidential informant ("CI") who knew Appellant, was aware that Appellant grew and sold marijuana from his residence, and had observed Appellant sell marijuana on at least fifteen occasions. Police confirmed Appellant's address through his driving record and within three days of August 31, 2001, conducted a controlled buy at that location utilizing the CI. Officer Fenstermacher also had spoken with Pennsylvania State Trooper Bradley Schriver, who had received information that Appellant was involved with controlled substances. Finally, approximately three years prior to the application for a search warrant, Officer Fenstermacher had been told by another confidential informant that Appellant was distributing marijuana from his residence. In fact, Appellant's criminal history indicated that he had been charged with possession of a controlled substance in 1985 and had been accepted into the accelerated rehabilitative disposition program at that time.

¶ 4 During execution of the warrant, police discovered a sophisticated marijuana-growing operation; they seized 693 marijuana plants from four areas of Appellant's property, including a shed, a room underneath his home, an outside field, and a room specially outfitted to grow marijuana. Appellant was arrested and charged with possession with intent to manufacture a controlled substance, marijuana, in violation of 35 P.S. § 780-113(a)(30). Of the 693 plants seized, fifteen plants were tested.

¶ 5 After pretrial hearings disposing of Appellant's request for suppression of the evidence, the case proceeded to trial where Appellant was convicted of violating 35 P.S. § 780-113(a)(30). In order to preserve his present sentencing challenge, Appellant asked that the jurors be polled as to the number of live plants he had possessed. Eleven jurors found that Appellant possessed 693 marijuana plants, but one juror concluded that the Commonwealth had only proven that Appellant possessed fifteen live marijuana plants, which was the number that actually had been tested.

¶ 6 Appellant proceeded to sentencing on January 31, 2003, where the sentencing court concluded that Appellant possessed 693 live plants. Based on this finding, Appellant was sentenced to a flat sentence of five years imprisonment and a $50,000 fine.2 Following the denial of post-sentence motions, Appellant filed a direct appeal to this Court. A three-judge panel, with one judge dissenting, issued a memorandum decision affirming the judgment of sentence. We granted en banc review. Appellant now raises two issues:

1. Whether the court's sentence of Kleinicke to a sentence of five (5) years incarceration for 51 or more live marijuana plants pursuant to 18 Pa.C.S. § 7508 without unanimity of jurors as to the number of plants violated Kleinicke's sixth amendment right to trial by jury as delineated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)?

2. Whether the [panel] correctly determined Kleinicke waived the challenge to the validity of the affidavit of probable cause premised on the confidential informant's purported statement because the claim was dependent upon material not included in the certified record when it was not included in the certified record pursuant to Pa.R.A.P. § 1921 due to an inadvertent mistake or negligence on the part of the York County Clerk of Courts in the function of their official duty.

Appellant's brief at 3.

¶ 7 We first set forth the facts necessary to review Appellant's sentencing claim. Marijuana is a Schedule I drug but is not classified as a narcotic drug. Therefore, the maximum sentence for Appellant's conviction under 35 P.S. § 780-113(a)(30) was five years imprisonment, as outlined by 35 P.S. § 780-113(f)(2).3 Appellant's minimum sentence was impacted by 18 Pa.C.S. § 7508(a)(1)(iii), which provides in relevant part that notwithstanding any other statutory provision, if a person is convicted of 35 P.S. § 780-113(a)(30), when the controlled substance is marijuana and "when ... the amount of marijuana involved is at least 51 live plants," the minimum sentence shall be five years in prison. Thus, based on application of 18 Pa.C.S. § 7508(a)(1)(iii), Appellant's minimum sentence converged with his maximum sentence, requiring imposition of a flat sentence of five years.4

¶ 8 Appellant maintains on appeal that his minimum sentence of five years imprisonment implicates the United States Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We reject Appellant's challenge because there is a key distinction between an increase in a maximum sentence and an increase in a minimum sentence in United States Supreme Court precedent applicable to the Sixth Amendment right to a jury trial.

¶ 9 We begin with an analysis of the seminal holding of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).5 This case is of vast import in the sentencing area because it creates a fundamental distinction in terms of the application of the Sixth Amendment right to a jury trial between the process of conviction and the process of sentencing. Williams, as discussed later, retains its precedential authority with regard to this point and is vital to an analysis of the present constitutional challenge.

¶ 10 In Williams, the defendant was convicted of murder committed in the course of a burglary. Under applicable New York law, the jury's determination of guilt fixed the types of punishment, but the sentencing court had broad discretion to sentence within the permissible range based upon the jury's determination of guilt. In Williams, the sentence for murder could have been either life imprisonment or death, and while the jury recommended life imprisonment, the sentencing court imposed a death sentence. As justification, the court utilized information gleaned from a probation department report, which included accusations that the defendant had committed numerous other burglaries. Though not convicted of those crimes, the defendant had admitted committing some of the burglaries and had been identified as the perpetrator of others. The report also listed other behavior by the defendant that the sentencing court characterized as demonstrating that the defendant had perverse sexual tastes and was a threat to society.

¶ 11 The defendant challenged the use of the information contained in the report on due process grounds, arguing that he had not been able to confront and cross-examine the witnesses who supplied the pertinent data. The United States Supreme Court analyzed whether due process concerns applicable during trial also controlled the manner in which a sentencing court could obtain information to guide it when imposing a sentence within the statutory range fixed by the jury verdict. It noted that under the state scheme it was reviewing, the sentencing court was permitted to consider a variety of evidence regarding the defendant's background, mental health, past conduct, and individual characteristics in fashioning a sentence.

¶ 12 The Williams Court chronicled the evolution of sentencing in the common law of the United States and Britain and observed that under early conventions, many criminal convictions resulted in an automatic sentence of death. Modern sentencing departed from this draconian approach and focused more humanely on individualized sentencing. Thus, under the modern rule, sentencing courts were authorized by the legislature to consider many sources and types of evidence to aid in determining the extent of punishment appropriate as long as the punishment imposed was "within limits fixed by law." Id. at 246, 69 S.Ct. 1079.

¶ 13 In upholding the sentence in Williams, the United States Supreme Court concluded that there was a historical basis for applying different rules to trial proceedings, wherein a defendant was found guilty, as opposed to sentencing proceedings, which involved...

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  • Commonwealth v. Stokes
    • United States
    • Superior Court of Pennsylvania
    • 1 Diciembre 2011
    ...credible, the court could not reach a contrary conclusion. Appellant acknowledges this Court's decisions in Commonwealth v. Kleinicke, 895 A.2d 562 (Pa.Super.2006) ( en banc ) and Commonwealth v. Gutierrez, 969 A.2d 584 (Pa.Super.2009), but asserts that in those cases, the judges decided th......
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    ...on the basis of the facts reflected in the jury verdict or admitted by the defendant"); Commonwealth v. Kleinicke, 2006 PA Super 48, 895 A.2d 562 (en banc) (imposition of mandatory minimum sentence did not violate Apprendi or Blakely because Pennsylvania has an indeterminate sentencing sche......
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    • 22 Octubre 2008
    ...minimum sentence did not violate Apprendi because Pennsylvania has an indeterminate sentencing scheme. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super.2006) (en banc). Moreover, Appellant does not argue an Apprendi 9. See, e.g., the following cases cited by the majority: Commonwealth......
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    • 13 Julio 2006 the sense that it contains all of the materials necessary for the reviewing court to perform its duty. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super.2006) (en banc). To facilitate an appellant's ability to comply with this requirement, our Supreme Court adopted the following pro......
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1 books & journal articles
  • Sentencing
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • 30 Marzo 2017
    ...542 U.S. 296 (2004)] invalidated aspects of several state guideline systems as well. [ See Commonwealth v. Kleinicke , 2006 Pa. Super 48, 895 A.2d 562, 583 n.21 (2006) (Bender, J., dissenting) (collecting decisions).] Some states have responded to Blakely and Booker “by calling upon the jur......

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