Commonwealth v. Fennell

• Citation: 2014 PA Super 261,105 A.3d 13
• Decision Date: 21 November 2014
• Docket Number: No. 2610 EDA 2013,2610 EDA 2013
• Court: Superior Court of Pennsylvania
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Caseen FENNELL, Appellant.

105 A.3d 13

2014 PA Super 261

COMMONWEALTH of Pennsylvania, Appellee

v.Caseen FENNELL, Appellant.

No. 2610 EDA 2013

Superior Court of Pennsylvania.

Submitted Oct. 28, 2014.

Filed Nov. 21, 2014.

Karl Baker, Public Defender, Philadelphia, and Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.^*

Opinion

OPINION BY MUNDY, J.:

Appellant, Caseen Fennell, appeals from August 12, 2013 aggregate judgment of sentence of three to six years' imprisonment after he was convicted of one count each of possession with intent to deliver (PWID) and intentional possession of a controlled substance.¹ After careful review, we vacate and remand for resentencing.

We summarize the relevant factual and procedural history of this case as follows. On November 29, 2012, the Commonwealth filed an information, charging Appellant with the above-mentioned offenses. On May 1, 2013, Appellant proceeded to a bench trial, at the conclusion of which, the trial court found Appellant guilty of the same. On August 12, 2013, the trial court sentenced Appellant to three to six years' imprisonment for PWID, and no further penalty for the possession charge, as the counts merged for the purposes of sentencing. Relevant to this appeal, Appellant received a three-year mandatory minimum sentence on the basis of the weight of the heroin, pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i). On August 23, 2013, Appellant filed an untimely post-sentence motion, but the trial court did not take any action. On September 11, 2013, Appellant filed a timely notice of appeal.²

On appeal, Appellant raises the following issue for our review.

Did not the [trial] court err in applying certain provisions of the mandatory minimum sentencing statute at 18 Pa.C.S. § 7508 to [Appellant]'s case, and thereby sentencing [Appellant] to a term of incarceration of 3 to 6 years, in that portions of [Section] 7508 are facially unconstitutional pursuant to Alleyne v. United States [––– U.S. ––––], 133 S.Ct. 2151 (2013), and are non-severable from the remaining portions of the statute?

Appellant's Brief at 3.

At the outset, we note that issues pertaining to Alleyne go directly to the legality of the sentence. Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa.Super.2014). With this in mind, we begin by noting our well-settled standard of review. “A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n. 8 (Pa.Super.2011) (citation omitted). It is also well-established that “[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.Super.2014) (citation omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo and our scope of review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.2014) (citations omitted).

In this case, Appellant was sentenced under a mandatory minimum statute at Section 7508, which provides in relevant part as follows.

§ 7508. Drug trafficking sentencing and penalties

(a) General rule. —Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

...

(7) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is heroin shall, upon conviction, be sentenced as set forth in this paragraph:

(i) when the aggregate weight of the compound or mixture containing the heroin involved is at least 1.0 gram but less than 5.0 grams the sentence shall be a mandatory minimum term of two years in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: a mandatory minimum term of three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity

...

(b) Proof of sentencing. —Provisions of this section shall not be an element of the crime. Notice of the applicability of this section 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 court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

18 Pa.C.S.A. § 7508.

This Court recently explained Alleyne's impact on the imposition of mandatory minimum sentences as follows.

In Alleyne, the Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt. Alleyne, supra at 2163. Alleyne is an extension of the Supreme Court's line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact finding which raises the minimum sentence and that which raises the maximum sentence.

It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.

Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.

Alleyne, supra at 2160–2161 (internal quotation marks and citations omitted).

Commonwealth v. Miller, 102 A.3d 988, 994–95 (Pa.Super.2014). Although Appellant was convicted at a bench trial, under the Due Process Clause, he was still entitled to have the extra element of the aggravated offense found by the factfinder beyond a reasonable doubt pursuant to Alleyne and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Alleyne, supra at 2156.

This Court has recently noted that Section 7508(a)(2)(ii) cannot be constitutionally applied in light of Alleyne, resulting in an illegal sentence. See Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa.Super.2014) (resolving an as-applied challenge to Section 7508(a)(2)(ii) in Thompson's favor in light of Alleyne and remanding for resentencing). However, in this case, Appellant argues that Section 7508 is facially unconstitutional in its entirety and its subsections cannot be severed from one another. Appellant's Brief at 13–22. The Commonwealth counters that because Appellant stipulated to the drug weight for the purposes of trial, any error regarding Alleyne was rendered harmless. Commonwealth's Brief at 10–12. Both parties cite to this Court's recent decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en banc ).

In Newman, this Court confronted the same type of challenge to the mandatory minimum found at Section 9712.1, regarding the distance between drugs and guns. Id. at 91. Section 9712.1 has the same format as Section 7508 in that one subsection contains the added element of the aggravated offense, and another subsection states that the elements shall be found by the trial court by a preponderance of the evidence. See id., quoting 42 Pa.C.S.A. §§ 9712.1(a), 9712.1(c) ; 18 Pa.C.S.A. §§ 7508(a)(7)(i), 7508(b).

The Newman Court first concluded that the defendant's sentence was illegal in light of Alleyne and required this Court to vacate and remand for resentencing. Id. at 98. However, this Court noted that Alleyne issues are subject to harmless error analysis, but nevertheless concluded that the Alleyne issue in Newman was not harmless. Id. at 98–100.

We cannot find that the error here was harmless, because the evidence as to the element of “in close proximity” was not necessarily overwhelming. As previously noted, the drug contraband was found in a bathroom. The firearm was found under a mattress in a bedroom across the hallway, and the actual distance between the contraband and the firearm was six to eight feet. Recently, our supreme court discussed at length the meaning of “in close proximity” as it is used in Section 9712.1. See Commonwealth v. Hanson [ ––– Pa. ––––] 82 A.3d 1023 (Pa.2013), generally. The Hanson court noted that the concept of “in close

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