Commonwealth v. Hughes
| Decision Date | 18 March 2015 |
| Docket Number | No. 2478 EDA 2013,J-S12009-15,2478 EDA 2013 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRIAN HUGHES, Appellant |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Brian Hughes appeals from the aggregate judgment of sentence of five to ten years incarceration imposed by the trial court after it found him guilty of three counts of aggravated assault, discharging a firearm into an occupied structure, carrying a firearm on public street in Philadelphia, and possession of an instrument of crime ("PIC"). Since Appellant was sentenced to a mandatory minimum sentence of five to ten years pursuant to 42 Pa.C.S. § 9712, we are constrained to vacate his judgment of sentence.
On May 3, 2012, Appellant fired numerous shots with a nine millimeter handgun into the home of Carl Geter, who resided with his wife, children, and grandchildren. Earlier in the evening, Appellant had confronted Mr. Geter over a purported $80 debt owed to him. Appellant threatened to"knock [Mr. Geter] the fuck out." N.T., 6/5/13, at 14; Id. at 18. In addition, Appellant threatened to shoot Mr. Geter. Mr. Geter's stepdaughter and several other girls then began to get into an argument. After police walked into the area, the verbal dispute temporarily dissipated.
However, several hours later, while Mr. Geter, his wife, and son and two grandchildren were inside, Appellant opened fire at the home on two occasions within twenty minutes to a half an hour of each other. Mr. Geter's wife witnessed Appellant shooting at her home from across the street on the second occasion. A television, windows, and a decorative figure were all shot. In addition, furniture and curtains were riddled with bullet holes. Police recovered thirteen shell casings from the scene outside. Those shell casings matched bullet fragments located in Mr. Geter's home. Both the casings and bullets were fired from a nine millimeter Luger semi-automatic pistol.
Appellant proceeded to a non-jury trial. The court found him guilty of the aforementioned charges on June 5, 2013. On that same date, the court imposed concurrent five to ten year sentences on each aggravated assault count.1 The court also sentenced Appellant to concurrent sentences of two to four years imprisonment for discharging a firearm, and one to two years for carrying a firearm on the public streets of Philadelphia. It did not impose a sentence on the PIC charge.
Appellant failed to timely appeal. However, on August 1, 2013, Appellant filed a PCRA petition seeking the reinstatement of his appellate rights. The court granted that petition on August 16, 2013. This timely nunc pro tunc direct appeal ensued. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, but did not raise the instant issue.
Appellant now raises one contention on appeal, "Should this matter should [sic] be remanded for resentencing because under the recently decided case of Commonwealth v. Newman, 2014 PA Super 178 (Aug. 20, 2014), the sentencing scheme employed by the lower court was unconstitutional?" Appellant's brief at 4.
Nonetheless, while we are cognizant that Alleyne was a Sixth Amendment jury trial rights case, it necessarily implicated Pennsylvania's legality of sentencing construct since it held that it is improper to sentence a person to a mandatory minimum sentence absent a jury's finding of facts that support the mandatory sentence. Application of a mandatory minimum sentence gives rise to illegal sentence concerns, even where the sentence is within the statutory limits. See Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 609 Pa. 502, 17 A.3d 332 (2011) (OAJC); Hopkins, supra at 821. Legality of sentence questions are not waivable and may be raised sua sponte by this Court.
Watley, supra 117-118 (footnote omitted).2
Indeed, this Court has since opined that various Alleyne-type challenges to mandatory minimum sentences present non-waivable legality of sentence questions. See Commonwealth v. Vargas, 2014 PA Super 289 (en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v. Ferguson, 2015 PA Super 1; Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 2014); Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super. 2014); Commonwealth v. Bizzel, 2014 PA Super 267; Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014); Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Matteson, 96 A.3d 1064(Pa.Super. 2014); Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014); Watley, supra; Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013).3
In Watley, we sua sponte raised and rejected an Alleyne issue. We held that non-compliance with Alleyne, which had not yet been decided at the time of Watley's trial or sentencing, was harmless and that the defendant's sentence was not illegal. There, the defendant was convicted by the jury of both possessing a firearm illegally and possession with intent to deliver drugs. A firearm and drugs were found together in the front passenger area of the car. The applicable mandatory sentencing statute related to firearms being located in close proximity to drugs.
Relying on United States Supreme Court precedent discussing harmless error for Apprendi violations, see United States v. Cotton, 535 U.S. 625 (2002), we held that, because the facts necessary to determine the mandatory sentence were undisputed, overwhelming, and decided by the jury, no Alleyne error occurred. Subsequently, in Munday and Thompson,this Court concluded that an Alleyne claim was non-waivable and meritorious where the jury did not decide the facts necessary to impose the mandatory sentence. In Munday, Thompson, and Watley, Alleyne had been decided after the defendants were sentenced.
Newman involved a case where the defendant's trial, sentencing and original appeal were decided prior to Alleyne. However, shortly after the original panel decision in Newman, the United States Supreme Court handed down Alleyne, and the defendant successfully sought re-argument. The Newman Court not only treated the Alleyne argument as an illegal sentencing claim, but also reached an issue of severability that had not been leveled below. Like Munday, and unlike Watley, the jury's verdict in Newman did not reveal that it found the facts needed to prompt the mandatory. As in Watley, the triggering facts for the mandatory sentence related to whether a firearm was in close proximity to drugs.
Although recognizing that an Alleyne issue could be considered under a harmless error analysis, the Newman Court found that the failure of the jury to expressly determine whether the gun in that case was in close proximity to drugs precluded a harmless error finding. The Newman majority further declined to remand for the empaneling of a second sentencing jury, finding that such a procedure would violate the separation of powers doctrine. In doing so, it ruled that the firearms mandatorystatute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety and not merely the section governing a court's burden of proof.
In Valentine, supra, this Court expanded Newman to prevent the Commonwealth from submitting to the jury facts not included as an element of the offense but set forth in the mandatory sentencing statutes. There, in a post-Alleyne case, the Commonwealth amended its criminal information to include whether the defendant visibly possessed a gun and the offense occurred in or near a place of public transportation. Without objection, the jury was presented with specific jury interrogatories as to those facts. The jury found each fact beyond a reasonable doubt. The Valentine Court ruled that Newman rendered both mandatory sentencing statutes in question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional in their entirety. Subsequently, in Commonwealth v. Ferguson, 2015 PA Super 1, this Court reiterated that sentences pursuant to 42 Pa.C.S. § 9712 are illegal. Accordingly, based on Newman, Valentine, and Ferguson, we must vacate Appellant's judgment of sentence.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.
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