Commonwealth v. Bromley, 2004 PA Super 422 (PA 10/29/2004)
| Decision Date | 29 October 2004 |
| Docket Number | No. 198 WDA 2004.,198 WDA 2004. |
| Citation | 2004 PA Super 422 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT L. BROMLEY, Appellant. |
| Court | Pennsylvania Supreme Court |
Appeal from the Judgment of Sentence January 5, 2004 In the Court of Common Pleas of Erie County Criminal at No. 2003-01168
Before: STEVENS, MUSMANNO, and MONTEMURO*, JJ.
OPINION BY STEVENS, J.:
¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Erie County following Appellant's guilty plea to one count of possession with intent to deliver.1 On appeal, Appellant challenges both the legality and discretionary aspects of his sentence, and claims that he received ineffective assistance of counsel at sentencing. We affirm.
¶ 2 On November 4, 2003, Appellant pleaded guilty to possession with intent to deliver marijuana. On January 5, 2004, Appellant was sentenced to fifteen to sixty months of incarceration which was in the aggravated range. Appellant filed a timely notice of appeal, and he was ordered to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P 1925(b). Accordingly, Appellant filed his 1925(b) statement, and the sentencing court subsequently issued its opinion.2
¶ 3 Appellant's first claim, raised for the first time in his brief, is that his sentence is illegal under the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). While, ordinarily, we would find a claim to be waived because it was not raised in Appellant's 1925(b) statement, a challenge to the legality of sentence is never waived and may be the subject of inquiry by the appellate court sua sponte. Commonwealth v. Pastorkovic, 567 A.2d 1089, 1091 (Pa.Super. 1989) (citations omitted). Accordingly, we find that Appellant's challenge to the legality of his sentence is not waived and will address it on the merits. However, for the reasons discussed below, we find Appellant's challenge to the legality of his sentence meritless.
¶ 4 Appellant argues that his sentence in the aggravated range was "a judicial determination of a non-objective fact not charged," and thus a violation of his Sixth Amendment right to trial by jury. We disagree.
¶ 5 In Apprendi, the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 489. Accordingly, the Supreme Court held that a New Jersey sentencing scheme which allowed a ten-year enhancement to the maximum sentence if a judge found by a preponderance of the evidence, after a hearing, that the underlying crime was also a hate crime violated the Due Process Clause of the Fourteenth Amendment. Id. at 491-97.
¶ 6 Appellant here was not subjected to a sentencing scheme where a factor increased his sentence beyond the statutory maximum; he was not even sentenced beyond the guidelines. Rather, he received a sentence in the aggravated range. The Apprendi Court specifically stated:
We should be clear that nothing . . . suggests that it is impermissible for judges to exercise discretion taking into consideration various factors relating to both offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentences within statutory limits in the individual case.
Apprendi, 530 U.S. at 481 (emphasis in original). Thus, Appellant's claim that his sentence runs afoul of the Apprendi decision is meritless.
¶ 7 In Ring, the Supreme Court held that capital defendants have a Sixth Amendment right to a jury determination of "any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589 (emphasis in original). In so finding, the Supreme Court noted:
The dispositive question . . . is one not of form but effect. If a State makes an increase in a defendant's authorized punishment contingent on a finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt. A defendant may not be expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
Ring, 536 U.S. at 602 (internal citations omitted) (emphasis in original).
¶ 8 Here, Appellant was not a capital defendant, and there is simply nothing to show that Appellant's sentence does not accord with Ring. Appellant has not demonstrated that the sentencing court made an increase in his authorized punishment based upon a finding of fact. Appellant was sentenced within the range authorized by the sentencing guidelines, he was not exposed to a penalty exceeding the statutory maximum.
¶ 9 In Blakely,3 the Supreme Court held that the Sixth Amendment was violated by Washington State's determinate sentencing scheme whereby a sentencing court could impose an "exceptional" sentence, above the standard-range statutory maximum, only after making a finding of "substantial and compelling reasons justifying an exceptional sentence." Blakely, ___ U.S. ___, 124 S.Ct. at 2534 (internal citation omitted). Further, reasons which justify exceptional sentences can only be factors "other than those which are used in computing the standard range sentence for the offense." Id. In Blakely, the sentencing court departed upward from a standard range sentence for second-degree kidnapping based on its finding that the defendant acted with deliberate cruelty. Blakely, ___ U.S. at ___, 124 S.Ct. at 2534. The Blakely Court specifically noted that indeterminate sentencing schemes:
[I]ncrease[] judicial discretion, to be sure, but not at the expense of the jury's traditional function of finding the fact essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that the judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says that judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence — and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.
Blakely, ___ U.S. at ___, 124 S.Ct. at 2540 (emphasis in original).
¶ 10 It is well settled that Pennsylvania employs an indeterminate sentencing scheme. Commonwealth v. Walls, 846 A.2d 152, 155 (Pa.Super. 2004). As such, there are significant differences between Washington's sentencing scheme and Pennsylvania's which bear upon the applicability of Blakely in the instant matter. Pennsylvania law provides that a sentencing court can sentence a defendant to one or more of several alternative dispositions (probation, no penalty, partial confinement, total confinement, a fine, intermediate punishment), and may impose the sentence either consecutively or concurrently. 42 Pa.C.S.A. § 9721(a). The law provides that:
[i]n selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (). In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 () and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
42 Pa.C.S.A. § 9721(b) (emphasis in original).
¶ 11 Thus, in the Pennsylvania scheme, unlike the Washington scheme, there is no requirement that a sentencing court make a specific finding prior to sentencing in the aggravated range. The sole requirements are that the judge follow the general principles outlined above and provide reasons for the sentence which he or she imposes.
¶ 12 In Blakely, the Supreme Court specifically distinguished between the judicial fact-finding in the determinate sentence scheme in Washington, and the exercise of judicial discretion which takes place in indeterminate sentencing schemes like Pennsylvania's. The significant finding of both Apprendi and Blakely appears to be that if a sentencing scheme mandates a certain sentence for a certain crime and only allows the imposition of a greater sentence based upon specific factual findings about the underlying crime, then, unless those factual findings are made by the jury, the scheme runs afoul of the Sixth Amendment. T...
To continue reading
Request your trial