Commonwealth v. Hopkins
| Decision Date | 15 June 2015 |
| Docket Number | No. 98 MAP 2013,98 MAP 2013 |
| Citation | 117 A.3d 247 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Kyle Joseph HOPKINS, Appellee. |
| Court | Pennsylvania Supreme Court |
Hugh J. Burns Jr., Esq., for Pennsylvania District Attorneys Association, Amicus Curiae.
Nicholas J. Casenta Jr., Esq., Chester County District Attorney's Office, Thomas P. Hogan Jr., Esq., for Commonwealth of Pennsylvania.
John R. Merrick, Esq., David Blair Miller, Esq., Chester County Public Defender's Office, Leonard Sosnov, Esq., for Kyle Joseph Hopkins.
Peter Rosalsky, Esq., Defender Association of Philadelphia, for Defender Association of Philadelphia, Amicus Curiae.
OPINION
In this direct appeal, we address questions regarding the constitutionality and severability of 18 Pa.C.S. § 6317(a) —which imposes a mandatory minimum sentence of two years total confinement upon a defendant for a conviction if a delivery or possession with intent to deliver a controlled substance occurs within 1,000 feet of, inter alia, a school—in light of the United States Supreme Court's decision in Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In that decision, the United States Supreme Court held that, under the Sixth Amendment to the United States Constitution, a jury must find beyond a reasonable doubt any facts that increase a mandatory minimum sentence. In the matter sub judice, the Commonwealth concedes that certain provisions of Section 6317 are unconstitutional in the wake of Alleyne. Nevertheless, the Commonwealth submits that those provisions are severable, and, thus, the statute is capable of application once the violative provisions are excised. While we do not question the legislature's wisdom or the necessity of severe penalties for those dealing in illegal drugs near our Commonwealth's schools, for the reasons that follow, we are constrained to conclude that the United States Supreme Court's decision in Alleyne renders Section 6317 unconstitutional and, further, that, in light of clear legislative intent, severance of the violative provisions from the statute is not permissible. Thus, we affirm the judgment of the trial court, which held Section 6317 to be unconstitutional and that its violative provisions were not severable.
The factual and procedural background of this matter is as follows. On March 27, 2013, the Pennsylvania State Police filed a criminal complaint against Appellee Kyle Hopkins charging him with various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780–101 et seq. The charges arose from three incidents, which took place over three days in April 2012, during which Appellee sold heroin to a confidential informant in Kennett Square Borough and New Garden Township, Chester County, Pennsylvania. One sale allegedly occurred in a school zone. Appellee was held for court on all charges, which included three counts of Possession with Intent to Deliver a Controlled Substance, 35 P.S. § 780–113(a)(30) ; three counts of Criminal Use of a Communication Facility, 18 Pa.C.S. § 7512(a) ; three counts of Possession of a Controlled Substance, 35 P.S. § 780–113(a)(16) ; and three counts of Possession of Drug Paraphernalia, 35 P.S. § 780–113(a)(32). Approximately two weeks later, the Chester County District Attorney's office filed a criminal information charging Appellee with the 12 counts noted above.
Anticipating the Commonwealth would seek the mandatory minimum sentence pursuant to 18 Pa.C.S. § 6317, on October 31, 2013, Appellee filed a Motion for Extraordinary Relief contending Section 6317 was unconstitutional. Judge David Bortner of the Court of Common Pleas of Chester County held a hearing on November 14, 2013. Five days later, the Commonwealth filed an amended criminal information to include notice that the Commonwealth sought the mandatory minimum sentence required by Section 6317. The trial court, however, granted Appellee's motion on December 17, 2013, declaring Section 6317 to be unconstitutional in its entirety.
The trial court reasoned that it was bound by the United States Supreme Court's decision in Alleyne, which held that facts which increase the mandatory minimum sentence are an element of the offense which must be submitted to the jury and found beyond a reasonable doubt. The court opined that Section 6317(b) placed facts determining the applicability of the mandatory minimum sentence in the hands of the sentencing court and that such determination was based upon the preponderance of the evidence in violation of Alleyne. Trial Court Order, 12/17/13, at 1 n. 1. The court also rejected the Commonwealth's suggestion that the Alleyne defect could be cured by adding a special interrogatory to the verdict slip. Id. Six days later, the Commonwealth filed a notice of appeal to our Court.1
Before our Court, the Commonwealth raises the following issue for our review:
Whether the trial court erred in concluding that 18 Pa.C.S.A. § 6317, titled, “Drug–Free School Zones”, is unconstitutional in its entirety, based upon Alleyne v. United States, where those provisions of § 6317 that do not comply with Alleyne are clearly severable from the remainder of the statute?
Before considering the arguments of the parties, we set forth a brief background of the law informing this appeal. As discussed more fully below, in 2013, the United States Supreme Court rendered its decision in Alleyne, in which it held that any fact which increases a mandatory minimum sentence is an “element” of the crime, and not a “sentencing factor,” and, thus, must be submitted to the jury pursuant to the Sixth Amendment to the United States Constitution.
The focus of the Alleyne challenge in this appeal is Section 6317 of the Crimes Code, entitled “Drug-free school zones”—a statutory provision first enacted in 1997, which sets forth a mandatory minimum sentence of two years total confinement if delivery of, or possession with intent to deliver, a controlled substance occurs within 1,000 feet of a school, college, or playground. Section 6317 states in full:
18 Pa.C.S. § 6317.
While the present challenge is to the constitutionality of Section 6317, it is axiomatic that, even if certain provisions of a statute are deemed to run afoul of the federal or state Constitution, portions of the statute which are not so offensive may retain their viability through judicial severing of those sections from the sections that are unconstitutional. The General Assembly has expressed its intent with respect to the constitutional construction of statutes, and specifically severability, in Section 1925 of the Statutory Construction Act. 1 Pa.C.S. § 1925. Section 1925 provides:
The provisions of every statute shall be severable. If any provision of any statute or the...
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