Commonwealth v. Cardwell

J-A30015-14

2014 PA Super 263

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMAR CARDWELL

Appellant No. 2392 EDA 2013

Appeal from the Judgment of Sentence June 18, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009069-2012

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

OPINION BY MUNDY, J.: FILED NOVEMBER 25, 2014

Appellant, Jamar Cardwell, appeals from the June 18, 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 background of this

case as follows. On August 8, 2012, the Commonwealth filed an information

charging Appellant with the above-mentioned offenses. On March 23, 2013,

Appellant proceeded to a one-day bench trial, at the conclusion of which the

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*

Retired Senior Judge assigned to the Superior Court.

1

35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.

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trial court convicted Appellant of both charges. On June 18, 2013, the trial

court imposed a sentence of three to six years’ imprisonment on each

charge, to run concurrently to each other. Relevant to this appeal, Appellant

received a three-year mandatory minimum sentence for PWID on the basis

of the weight of the phencyclidine (PCP), pursuant to 18 Pa.C.S.A. §

7508(a)(4)(i). Appellant filed a timely post-sentence motion on June 26,

2013, which the trial court denied on August 13, 2013. On August 14, 2013,

Appellant filed a timely notice of appeal.2

On appeal, Appellant raises one 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, 133 S. Ct. 2151

(2013), and are non-severable from the remaining

provisions 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.”

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2

Appellant and the trial court have complied with Pa.R.A.P. 1925.

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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:

…

(4) 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 is methamphetamine or phencyclidine or

is a salt, isomer or salt of an isomer of

methamphetamine or phencyclidine or is a mixture

containing methamphetamine or phencyclidine,

containing a salt of methamphetamine or

phencyclidine, containing an isomer of

methamphetamine or phencyclidine, containing a

salt of an isomer of methamphetamine or

phencyclidine shall, upon conviction, be sentenced to

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a mandatory minimum term of imprisonment and a

fine as set forth in this subsection:

(i) when the aggregate weight of the compound or

mixture containing the substance involved is at least

five grams and less than ten grams; three years in

prison and a fine of $15,000 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: five

years in prison and $30,000 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 (2000). In Alleyne, the Court

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overruled Harris v. United States, 536 U.S. 545

(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).

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Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (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 (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 16-18. 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 10-11.

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

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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)(4)(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,

82 A.3d 1023 (Pa. 2013), generally. The Hanson

court noted that the concept of “in close proximity” is

inherently imprecise and observed the differing

conclusions as to its meaning both among the courts

of this Commonwealth and among the courts of

other jurisdictions. Hanson, 82 A.3d at 1037–1038,

and otherwise, generally. If learned jurists cannot

decide with precision what constitutes “in close

proximity,” we cannot say with finality that a panel

of lay jurors would undoubtedly conclude from the

evidence here that the firearm was “in close

proximity” to the drug contraband.

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Id. at 99-100. Finally, this Court rejected the Commonwealth’s argument

that, if the error was not harmless, the appropriate remedy would be to

remand to the trial court to empanel a second sentencing jury. Specifically,

in rejecting this argument, the Newman Court concluded that Section

9712.1 in its entirety must be struck down as unconstitutional in light of

Alleyne, concluding that its subsections were not severable.3

The Commonwealth’s suggestion that we

remand for a sentencing jury would require this

court to manufacture whole cloth a replacement

enforcement mechanism for Section 9712.1; in other

words, the Commonwealth is asking us to legislate.

We recognize that in the prosecution of capital cases

in Pennsylvania, there is a similar, bifurcated process

where the jury first determines guilt in the trial

proceeding (the guilt phase) and then weighs

aggravating and mitigating factors in the sentencing

proceeding (the penalty phase). However, this

mechanism was created by the General Assembly

and is enshrined in our statutes at 42 Pa.C.S.A.

§ 9711. We find that it is manifestly the province of

the General Assembly to determine what new

procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania

following Alleyne. We cannot do so.

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3

The author in this case concurred in the result in Newman, disagreeing

with the majority that the subsections of Section 9712.1 could not be

severed, concluding that no special “mechanism” was required to allow a

jury to find the element of the aggravated offense beyond a reasonable

doubt. Id. at 105 (Mundy, J., concurring). The author continues to believe

Newman was wrongly decided on that point; however, it is binding on this

Court and must be applied in a principled manner in all future cases unless

reversed by our Supreme Court.

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Id. at 102.4

In the case sub judice, during trial, Appellant stipulated that the total

weight of the PCP was 6.148 grams. Specifically, the Commonwealth

presented laboratory reports showing that one item contained 4.496 grams

and one item contained 1.652 grams of phencyclidine. N.T., 3/23/13, at 82-

84; N.T., 3/23/13, Commonwealth’s Exhibit 1, at 16. The trial court noted

in its Rule 1925(a) opinion that it, sitting as the factfinder, found “the

evidence submitted at trial and which was determined to be entirely

credible, established beyond a reasonable doubt that [] Appellant possessed

over 6 grams of PCP with the intent to distribute such to various people he

came in contact with that day.” Trial Court Opinion, 1/16/14, at 6.

However, we are mindful of this Court’s recent decision in

Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super.

2014). In Valentine, the Commonwealth sought to have a mandatory

minimum sentence imposed against the defendant. The trial court allowed

the Commonwealth to amend the information to include the necessary

additional elements required by Alleyne to be found by the jury beyond a

reasonable doubt. Id. at *1. The two questions were submitted to the jury,

and it found the additional elements beyond a reasonable doubt. Id. As a

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4

We note the Commonwealth has filed a petition for allowance of appeal

with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the

date of this decision, it is still pending.

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result, the trial court imposed the appropriate mandatory minimum

sentences pursuant to the appropriate statutes. Id.

Although the trial court seemingly followed Alleyne’s requirements,

the Valentine Court held that the trial court was not permitted to allow the

jury to resolve the mandatory minimum questions absent legislative action

in accordance with Newman.

Here, the trial court permitted the jury, on the

verdict slip, to determine beyond a reasonable doubt

whether Appellant possessed a firearm that placed

the victim in fear of immediate serious bodily injury

in the course of committing a theft for purposes of

the mandatory minimum sentencing provisions of 42

Pa.C.S.A. § 9712(a), and whether the crime occurred

in whole or in part at or near public transportation,

for purposes of the mandatory minimum sentencing

provisions of 42 Pa.C.S.A. § 9713(a). The jury

responded “yes” to both questions. In presenting

those questions to the jury, however, we conclude,

in accordance with Newman, that the trial court

performed an impermissible legislative function by

creating a new procedure in an effort to impose the

mandatory minimum sentences in compliance with

Alleyne.

The trial court erroneously presupposed that

only Subsections (c) of both 9712 and 9713 (which

permit a trial judge to enhance the sentence based

on a preponderance of the evidence standard) were

unconstitutional under Alleyne, and that

Subsections (a) of 9712 and 9713 survived

constitutional muster. By asking the jury to

determine whether the factual prerequisites set forth

in § 9712(a) and § 9713(a) had been met, the trial

court effectively determined that the unconstitutional

provisions of § 9712(c) and § 9713(c) were

severable. Our decision in Newman however holds

that the unconstitutional provisions of § 9712(c) and

§ 9713(c) are not severable but “essentially and

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inseparably connected” and that the statutes are

therefore unconstitutional as a whole. Id. at 13–14.

(“If Subsection (a) is the predicate arm … then

Subsection (c) is the enforcement arm. Without

Subsection (c), there is no mechanism in place to

determine whether the predicate of Subsection (a)

has been met.”).

Moreover, Newman makes clear that “it is

manifestly the province of the General Assembly to

determine what new procedures must be created in

order to impose mandatory minimum sentences in

Pennsylvania following Alleyne.” Newman at 14.

Therefore, the trial court lacked the authority to

allow the jury to determine the factual predicates of

§§ 9712 and 9713. See Newman at 14–15

(recognizing that several trial courts of this

Commonwealth have found Section 9712.1 as a

whole to be no longer workable without legislative

guidance).

Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence

and remanded for resentencing, without the applicable mandatory minimum

sentences.5 Id. at *9.

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5

As noted above, Newman did acknowledge that Alleyne errors, like those

under Apprendi v. New Jersey, 530 U.S. 466 (2000), are subject to

harmless error analysis. See generally Newman, supra at 98-100.

However, if Newman’s overriding conclusion is, as Valentine suggests, that

mandatory minimum statutes in Pennsylvania must be stricken in their

entirety as facially unconstitutional, any discussion of harmless error is

rendered moot. This is because, once the Court concludes that the

subsections cannot be severed and must all be struck down, there is no

statutorily authorized sentence upon which a harmless error analysis may be

applied. See, e.g., Rivera, supra (stating, “[i]f no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction[]”) (citation omitted).

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In the instant case, as noted above, the Commonwealth and Appellant

entered into a stipulation that the total weight of the PCP in this case was

6.148 grams. N.T., 3/23/13, at 82-84; N.T., 3/23/13, Commonwealth’s

Exhibit 1, at 16. As a result, the trial court concluded that the

Commonwealth did prove this element to the trial court beyond a reasonable

doubt, as required by Alleyne and Winship. Trial Court Opinion, 1/16/14,

at 6. However, this conclusion was premised on the trial court’s belief that

Section 7508(b), which permits the trial court to find the necessary elements

by a preponderance of the evidence, was severable from the rest of the

statute. Id. Pursuant to this Court’s decision in Newman, this conclusion

was not correct.

Furthermore, we see no meaningful difference, for the purposes of

Newman and Valentine, between submitting the element to the jury and

accepting a stipulation from a defendant. They both have the purpose of

finding a method to impose a mandatory minimum sentence outside the

statutory framework, but consistent with Alleyne. However, both Newman

and Valentine unequivocally state that creating a new procedure in an

effort to impose a mandatory minimum sentence is solely within the

province of the legislature. See Newman, supra; Valentine, supra.

While submission to a jury is a more formal and involved procedure, we

decline to fracture Newman and Valentine further by concluding that when

read together, they only prohibit formal mandatory minimum procedures,

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but permit informal ones. Based on these considerations, we conclude that

the trial court erred in imposing the mandatory minimum sentence in this

case. As a result, Appellant is entitled to relief.

Based on the foregoing, we are constrained to conclude the trial court

erred in imposing the mandatory minimum sentence in light of this Court’s

recent decisions in Newman and Valentine. Accordingly, the trial court’s

June 18, 2013 judgment of sentence is vacated, and the case is remanded

for resentencing, without the mandatory minimum, consistent with this

opinion.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/2014

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