Commonwealth v. Newman

• Decision Date: 20 August 2014
• Docket Number: No. 1980 EDA 2012,1980 EDA 2012
• Citation: 2014 PA Super 178,99 A.3d 86
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. James NEWMAN, Appellant.

99 A.3d 86

2014 PA Super 178

COMMONWEALTH of Pennsylvania

v.James NEWMAN, Appellant.

No. 1980 EDA 2012

Superior Court of Pennsylvania.

Argued April 23, 2014.

Filed Aug. 20, 2014.

Patrick J. McMenamin, Jr., Lansdale, for appellant.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY, and OLSON, JJ.

Opinion

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant brings this appeal challenging the constitutionality of one of Pennsylvania's mandatory minimum sentencing statutes, 42 Pa.C.S.A. § 9712.1, following the United States Supreme Court's holding in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We find that Alleyne does indicate that the sentencing practice under Section 9712.1 is unconstitutional. We will, therefore, vacate appellant's judgment of sentence and remand for resentencing.

Following controlled drug buys involving appellant at Apartment No. 2 of the Station Avenue apartment complex in Glenside, police executed a search warrant at that residence. Police discovered a large quantity of crack cocaine, drug paraphernalia in the form of plastic baggies and digital scales, and a handgun and bullets under a mattress in a bedroom. The bedroom was located across a hallway from a bathroom where over 60 grams of cocaine were found in the toilet. The distance between the gun and the cocaine was approximately six to eight feet. Appellant and his co-conspirators were arrested and brought to trial.

On February 14, 2012, a jury convicted appellant of two counts of possession with intent to deliver (cocaine) (“PWID”), two counts of simple possession (cocaine), one count of possession of drug paraphernalia, one count of dealing in proceeds of unlawful activities, one count of possessing an instrument of crime, and five counts of criminal conspiracy.¹ On February 23, 2012, the Commonwealth filed a Notice of Intent to Seek Mandatory Sentence under Section 9712.1, which enhances the minimum sentence where a firearm is found on a drug dealer, an accomplice, or in the vicinity of the contraband. On June 13, 2012, the trial court sentenced appellant pursuant to Section 9712.1 to 5 to 15 years' imprisonment on one of the PWID convictions and a concurrent term of 3 to 10 years' imprisonment on one of the conspiracy convictions. On July 3, 2012, the trial court reduced the PWID sentence to 5 to 10 years' imprisonment.

Appellant appealed his conviction to this court. This court affirmed the judgment of sentence on June 12, 2013. On June 17, 2013, just five days later, the United States Supreme Court issued its opinion in Alleyne. On June 25, 2013, appellant filed with this court an application for reconsideration/reargument which we granted for en banc reargument. We now address those issues raised upon reargument:

I. WHAT IS THE APPLICABILITY OF THE UNITED STATES SUPREME COURT'S DECISION IN ALLEYNE V. UNITED STATES, ––– U.S. ––––, 133 S.Ct. 2151 (2013), AND DOES THE DECISION RENDER 42 PA.C.S. § 9712.1, UNCONSTITUTIONAL IN THAT THE MANDATORY MINIMUM STATUTE ALLOWS THE TRIAL JUDGE TO DETERMINE WHETHER THE EVIDENCE TRIGGERS THE APPLICATION OF THE MANDATORY MINIMUM SENTENCE, THEREBY VIOLATING THE APPELLANT'S SIXTH AMENDMENT RIGHTS PURSUANT TO THE UNITED STATES CONSTITUTION, AND APPELLANT'S RIGHT TO A TRIAL BY JURY PURSUANT TO ARTICLE I, SECTION IX, OF THE PENNSYLVANIA CONSTITUTION WHICH GUARANTEE THE APPELLANT TO A TRIAL BY JURY AND A DETERMINATION OF GUILT BEYOND A REASONABLE DOUBT BY THAT JURY?

II. DOES ALLEYNE V. UNITED STATES, ––– U.S. ––––, 133 S.Ct. 2151 (2013), APPLY RETROACTIVELY TO THE INSTANT MATTER, IN THAT THIS CASE WAS DECIDED BY THE SUPERIOR COURT ON JUNE 12, 2013, ALLEYNE WAS DECIDED JUNE 17, 2013, BUT APPELLANT FILED A TIMELY REQUEST FOR REARGUMENT AND RECONSIDERATION, AND THUS APPELLANT'S JUDGMENT OF SENTENCE IS NOT FINAL?

III. HAS THE CONTROLLING OR DIRECT RELEVANT AUTHORITY RELIED UPON BY THE COURT BEEN EXPRESSLY REVERSED, MODIFIED, OVERRULED OR OTHERWISE MATERIALLY AFFECTED DURING THE PENDENCY OF THE MATTER SUB JUDICE, WITH NO NOTICE GIVEN TO THE COURT PURSUANT TO PA.R.A.P. 2501(B) ?

Appellant's brief at iv.

We begin by addressing appellant's second issue, pertaining to the retroactive application of Alleyne to appellant's case, because if Alleyne does not apply retroactively, the merits of appellant's remaining arguments are moot. We note in passing that the Commonwealth does not contend that Alleyne does not apply retroactively to appellant, and we now find that Alleyne does apply retroactively.

The United States Supreme Court has held that “[w]hen a decision of this Court results in a “new rule,” that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Although this court had already rendered its decision in appellant's appeal at the time Alleyne was announced, we retain jurisdiction for 30 days thereafter, to modify or rescind our holding, or grant reargument as we have here, so long as the appellant does not seek allowance of appeal before our supreme court. See 42 Pa.C.S.A. § 5505. Moreover, our decision does not become final until 30 days have elapsed and the time for filing a petition for allowance of appeal with our supreme court expires. See Pa.R.A.P., Rule 1113(a), 42 Pa.C.S.A. Therefore, appellant's case was still pending on direct appeal when Alleyne was handed down, and the decision may be applied to appellant's case retroactively.² However, there is a further complication that must be addressed before Alleyne may be considered.

To be entitled to the retroactive application of a new constitutional rule, a defendant must have raised and preserved the issue in the court below:

[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983) (emphasis added).

While appellant challenged his mandatory minimum sentence under Section 9712.1 on direct appeal, his issue was not based upon Alleyne or upon a similar theory. Nonetheless, appellant is still entitled to the retroactive application of Alleyne.

In Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351 (2005), cert. denied, Roney v. Pennsylvania, 546 U.S. 860, 126 S.Ct. 139, 163 L.Ed.2d 141 (2005), our supreme court reviewed the application of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to an appellant's sentence where Apprendi or a similar theory had not been preserved below.³ The court found that “because a challenge to a sentence premised upon Apprendi implicates the legality of that sentence, it cannot be waived on appeal.” Roney, 866 at 359, n. 32. Thus, our supreme court went on to examine Apprendi 's application and did not find waiver. We find that a challenge to a sentence premised upon Alleyne likewise implicates the legality of the sentence and cannot be waived on appeal. Therefore, we find that Alleyne may be applied retroactively to appellant.⁴ We now turn to the merits of appellant's other issues which ask us to declare Section 9712.1 unconstitutional under Alleyne.

We begin by noting the provisions of Section 9712.1 at issue:

§ 9712.1. Sentences for certain drug offenses committed with firearms

(a) Mandatory sentence. —Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L. 233, No. 64),¹ known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

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

42 Pa.C.S.A. § 9712.1 (in pertinent part).

Under the sentencing scheme of Section 9712.1, possession of a firearm is considered a sentencing factor to be determined by the trial court upon a preponderance of the evidence, and not an element of the underlying crime to be determined by the jury beyond a reasonable doubt. This sort of sentencing scheme was deemed constitutional under a prior ruling of the United States Supreme Court.

In McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the United States Supreme Court reviewed the constitutionality of another one of Pennsylvania's mandatory minimum sentencing statutes, 42 Pa.C.S.A. § 9712, which imposed a mandatory minimum sentence of five years' imprisonment for the visible possession of a firearm during the commission of certain specified crimes of violence. Like Section 9712.1, Section 9712 provided that the visible possession was not an element of the crime, but was a sentencing factor to be determined by the trial court upon a preponderance of the evidence. The McMillan court ruled that a state could...