Com. v. Smith

• Decision Date: 13 September 1995
• Citation: 664 A.2d 622,444 Pa.Super. 652
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Brett Lamar SMITH, Appellee.
• Court: Pennsylvania Superior Court

Page 622

664 A.2d 622

444 Pa.Super. 652

COMMONWEALTH of Pennsylvania, Appellant, v. Brett Lamar SMITH, Appellee.

Superior Court of Pennsylvania.

Submitted May 17, 1995.

Filed July 6, 1995.

Reargument Denied Sept. 13, 1995.

Kemal A. Mericli and Sandra Preuhs, Asst. Dist. Attys., Pittsburgh, for Com., appellant.

Patrick J. Thomassey, Asst. Public Defender, Monroeville, for appellee.

Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.

HUDOCK, Judge:

In this appeal by the Commonwealth, the question presented is whether the sentencing court erred in concluding that the Commonwealth could not seek a mandatory sentence, after Appellee's conviction at trial, because it had previously offered to waive the mandatory sentence during unsuccessful plea negotiations. ¹ Finding that the sentencing court did err, we vacate Appellee's sentence and remand for resentencing.

The facts and procedural history may be summarized as follows: By information filed January 15, 1993, Appellee was charged with one count each of possession of a controlled substance with intent to deliver, possession of a controlled substance, criminal conspiracy, and prohibited offensive weapons. ² On May 3, 1993, Appellee entered a plea of guilty to the charges and sentencing was deferred until July 7, 1993. As part of the plea bargain, the Commonwealth agreed that it would not seek any applicable mandatory minimum sentence. At the conclusion of a hearing held on June 15, 1993, however, Appellee was permitted to withdraw his guilty plea. On September 29, 1993, pre-trial motions were heard and denied. On October 4, 1993, a jury convicted Appellee on all charges. On October 21, 1993, the Commonwealth sent notification of its intent to proceed pursuant to the mandatory sentencing provision of 18 Pa.C.S.A. section 7508(a)(3)(i). On February 1, 1994, the sentencing court refused to impose the mandatory minimum sentence. Instead, on the conviction for possession with intent to deliver, the court imposed a sentence of nine to twenty-three months incarceration. With regard to this sentence the court further stated that Appellee was "to be permitted alternate housing and work release or study release if [he] has employment or is enrolled in an appropriate educational institution." N.T., 2/1/94, at p. 47. For the criminal conspiracy conviction, the court imposed a consecutive, two-year probationary term. No further penalty was imposed on the remaining convictions. On February 8, 1994, the Commonwealth filed a motion to reconsider sentence. This motion was denied by order of court dated June 21, 1994. ³ This appeal followed.

Appellee's conviction for possession with intent to deliver 7.50 grams of cocaine subjected him to a mandatory minimum sentence of one year in prison and a fine of at least $5,000. 18 Pa.C.S.A. § 7508(a)(3)(i). Work release is not permitted. 18 Pa.C.S.A. § 7508(c). It is well-settled that it is within the sole discretion of the Commonwealth to invoke the mandatory minimum sentence. See generally, Commonwealth v. Biddle, 411 Pa.Super. 210, 601 A.2d 313 (1991); Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991), alloc. den., 528 Pa. 622, 597 A.2d 1151. At sentencing, however, the court refused to impose the mandatory minimum because it believed that the Commonwealth does not enjoy unfettered discretion in choosing to proceed under the mandatory sentencing guidelines and because the Commonwealth's offer during plea negotiations to forego the mandatory sentence constituted an improper inducement to plead. The sentencing court further concluded that the subsequent invocation of the mandatory sentence "unconstitutionally infringed upon [Appellee's] right to due process by vindictively seeking imposition of the mandatory minimum sentence to punish [Appellee's] exercise of his right to a jury trial." Sentencing Court Opinion, 1/6/95, at pp. 3-4. ⁴ Because this reasoning has been rejected by the United States Supreme Court, and is inconsistent with both the views of this Court and our Supreme Court with regard to the Commonwealth's discretion to seek the mandatory minimum, as well as the proper function of the plea bargaining process, we reverse and remand for resentencing pursuant to 18 Pa.C.S.A. section 7508(a)(3)(i).

In its 1925(a) opinion, the sentencing court states:

Although Pennsylvania courts have repeatedly interpreted the phrase "reasonable notice of the Commonwealth's intention to proceed ..." as a legislative grant of discretion to the prosecutor to determine whether to invoke a mandatory sentence, this Court maintains that these interpretations are fundamentally flawed.

Sentencing Court Opinion, 1/6/95, at p. 5. ⁵ The court then discusses its belief that the rationale of our Supreme Court in Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987), and of this Court in Commonwealth v. Biddle, 411 Pa.Super. 210, 601 A.2d 313 (1991), is in error. In conclusion, the sentencing court states that, despite these two controlling decisions, it is its "continuing judgment that the legislature never intended to transfer discretion from judges to prosecutors in matters of sentencing." Sentencing Court Opinion, 1/6/95, at p. 10. The court then cites to its own opinion which was reversed by this Court in Biddle, supra.

Despite the sentencing court's belief that the reasoning in the above cases is flawed, as an inferior court, it was nevertheless required to follow the law as set forth therein. As noted above, these cases clearly hold that it is within the sole discretion of the Commonwealth whether to proceed under the mandatory minimum sentencing provisions. As shall be discussed more fully below, the use of the mandatory minimum sentencing provisions as a tool in the plea bargaining process is not unconstitutionally infirm.

In its opinion the sentencing court continues:

To the extent that the holdings of Pittman and Biddle are read to grant unfettered discretion to the prosecutor to invoke the terms of the mandatory sentencing provisions, it is this Court's considered conclusion that the District Attorney has abused this discretion: (1) by exceeding the proper limits of the discretionary role conferred to the prosecutor in sentencing; (2) by arbitrarily and discriminatorily applying its inter-office policies regarding the discretionary application of the mandatories; and (3) by circumventing the Court's supervisory function under Pa.R.Crim.P. 319.

Sentencing Court Opinion, 1/6/95, at p. 11. Upon careful consideration, we find each of these conclusions to be unsupported by the record or otherwise contrary to case law.

The sentencing court first concluded that the "traditional powers" of the Commonwealth, that is, its charging function, was not intended to include "the power to coerce guilty pleas by manipulating mandatory penalties. Nor did the Supreme Court [in Pittman ] redefine sentencing authority by shifting the discretion to proceed or not to proceed with mandatory sentences to an area to which it was never intended to apply--the plea bargaining process." Sentencing Court Opinion, 1/6/95, at p. 12. We cannot agree with the sentencing court's characterization of the Commonwealth's discretion.

With regard to the vital role of the plea bargaining process in criminal prosecutions, this Court has stated:

It is well recognized that the guilty plea and the frequently concomitant plea bargain are valuable implements in our criminal justice system. See Blackledge v. Allison, [431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ]; Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973). "The disposition of criminal charges by agreement between the prosecutor and the accused, ... is an essential component of the administration of justice. Properly administered, it is to be encouraged. Santobello v. New York, [404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) ] (emphasis added). In this Commonwealth, the practice of plea bargaining is generally regarded favorably, Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976); Commonwealth v. Alvarado, supra, at 516, 276 A.2d 526; Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), and is legitimized and governed by court rule. Pa.R.Crim.P. 319(b).

Commonwealth v. Schmoyer, 280 Pa.Super. 406, 413-14, 421 A.2d 786, 789 (1980). In Schmoyer, this Court also noted that the desirability of disposing of criminal charges through plea bargaining is based on the premise that a plea agreement is advantageous to all concerned:

"The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings."

Id. 421 A.2d at 790 (quoting Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627-28, 52 L.Ed.2d 136 (1977)).

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), reh. den., 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511, the United States Supreme Court discussed the constitutional significance of the plea negotiation process. Hayes was indicted by a grand jury in Kentucky of uttering a forged instrument. After arraignment, Hayes, his counsel, and the Commonwealth's attorney met to discuss a possible plea agreement. The prosecutor offered to recommend a sentence of five years incarceration if Hayes would plead guilty. He also said that if Hayes did not plead guilty he would seek a grand jury indictment under Kentucky's recidivist statute. Under this statute, Hayes would be subject to a mandatory sentence of life imprisonment by reason of his prior felony...