The opinion
J-S63027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE LAMONT SPANGLER
Appellant No. 277 MDA 2014
Appeal from the Judgment of Sentence March 15, 2011
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002280-2009
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 02, 2014
Appellant, Andre Lamont Spangler, appeals from the judgment of
sentence entered March 15, 2011. After careful review, we affirm.
Spangler pled guilty to various drug related offenses based upon
allegations of multiple sales of cocaine. The trial court initially sentenced
Spangler to a term of incarceration of 10 to 20 years. After considering
Spangler’s post-sentence motions, however, the trial court resentenced
Spangler to an aggregate term of imprisonment of 7 to 14 years.
Spangler subsequently filed a petition pursuant to the Post Conviction
Relief Act (“PCRA”), through which his direct appeal rights were reinstated
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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nunc pro tunc by PCRA court order dated January 10, 2014. This timely
appeal followed.
On appeal, Spangler raises the following issues for our review:
1. Should Mr. Spangler be resentenced due to sentencing
entrapment and/or sentencing manipulation?
a. Did law enforcement engage in sentencing entrapment
and/or sentencing manipulation in the course of its
investigation?
b. Is Appellant entitled to a new sentence due to
sentencing entrapment and/or sentencing
manipulation?
2. Is 18 Pa.C.S.A. § 7508 unconstitutionally vague?
3. Does 18 Pa.C.S.A. § 7508 violate the equal protection
clauses?
4. Is 18 Pa.C.S.A. § 7508 unconstitutional as applied in this case
since it constitutes cruel and unusual punishment?
Appellant’s Brief, at 7.
Spangler concedes that his first issue is waived due to his failure to
raise it in the trial court. See Appellant’s Brief, at 13. He is therefore due
no relief on his first argument.
Spangler’s next three arguments all raise challenges to the
constitutionality of 18 Pa.C.S.A. § 7508. The Commonwealth contends that
two of these issues are waived due to Spangler’s failure to raise any
challenges to the constitutionality of his sentence in the trial court. Spangler
counters that pursuant to Commonwealth v. Foster, 17 A.3d 332 (Pa.
2011), any challenge to the imposition of a mandatory sentence constitutes
a challenge to the legality of the sentence. See Commonwealth v. Foster,
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17 A.3d 332 (Pa. 2011). The Commonwealth does not address the
applicability of Foster.1
In Foster, the Supreme Court of Pennsylvania was asked to review
this Court’s decision to vacate a mandatory minimum sentence. In
particular, the Supreme Court of Pennsylvania was required to review the
predicate conclusion that a challenge to the imposition of a mandatory
minimum sentence that was still within statutory guidelines constituted a
non-waivable challenge to the legality of the sentence. See 17 A.3d at 334.
It is true that the Supreme Court unanimously affirmed this Court’s
vacation of the mandatory minimum sentence. However, it is equally true
that no single rationale for the vacation of the sentence garnered the
support of a majority of the Justices. The lead opinion was authored by
Justice Baer, and joined by Justices Todd and McCaffery. The lead opinion
states that the legality of the sentence imposed is
only implicated when a sentencing court’s inherent,
discretionary authority to wield its statutorily prescribed
sentencing powers is supplanted, abrogated, or otherwise
limited, or the legislature’s intent in fashioning a sentence
has been potentially misapplied. In our view, there is
little doubt that when a sentencing court has no
alternative but to impose a certain minimum sentence, its
authority to act has been infringed upon. Thus, under
this Commonwealth’s jurisprudence, any challenge
thereunder must relate to a sentence’s legality.
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1
This Court has previously addressed the application of Foster en banc in
Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013). The following
analysis of Foster is substantially similar to that contained in Boyd.
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Foster, 17 A.3d at 344.
Under this reasoning, it is arguable that Spangler’s claims on appeal
implicate the legality of his sentence. Section 7508 clearly limits the
sentencing court’s discretion in imposing sentence; the court is mandated to
impose certain minimum sentences if specific circumstances are met. See
18 Pa.C.S.A. § 7508. The sentencing court’s authority to act in this manner
has been limited by the legislature. Therefore, under the reasoning quoted
from the lead opinion in Foster, a claim that the imposition of a mandatory
minimum sentence under Section 7508 is unconstitutional is one that
implicates the legality of the sentence and is therefore not subject to waiver.
As noted above, however, the lead opinion in Foster did not receive
the support of a majority of the Justices. Three separate concurring opinions
were penned, cumulatively receiving the votes of the remaining four
Justices. A close reading of the three concurring opinions reveals that the
lead opinion’s reasoning was rejected by a majority of the Court.
Chief Justice Castille authored a concurring opinion, joined by Justice
Orie Melvin, that is critical of the reasoning employed by the lead opinion:
“The difficulty here is that, to make the case fit within its paradigm, the lead
Justices adopt an overly broad rule redefining the concept of ‘illegal
sentence.’” Id., at 347. Chief Justice Castille’s opinion expressed doubt
that the discretionary versus legality dichotomy is appropriate to deal with
all possible sentencing claims. See id., at 350. Instead, the concurrence
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would reserve the label of “legality” for claims that are “obvious, undeniable,
and capable of even administration, so much so that the claim may be raised
sua sponte.” Id., at 352. Instead of applying the dichotomy
mechanistically, Chief Justice Castille’s concurring opinion favored “an
approach that would weigh the nature and gravity of the substantive
sentencing claim against the values served by the specific normative default
principle (here, issue preservation) at issue.” Id., at 352. Thus, it is clear
that Chief Justice Castille and Justice Orie Melvin did not agree with the
reasoning employed by the lead opinion.
Justice Saylor authored a second concurring opinion, in which he
stated:
To the degree [the lead opinion] reflects that review of
legality-of-sentence claims had been made available in
limited categories of cases beyond those involving claims
that sentences statutory maximums – despite non-
adherence to ordinary principles of issue preservation and
presentation – I support its reasoning and holding.
To the extent, however, the lead opinion conceives a rule
of general application and/or sanctions, as the
reviewability litmus, application of the dichotomy between
claims of legal error and discretionary aspects of
sentencing … I hold a different view similar to that of Mr.
Chief Justice Castille.
Id., at 355. Justice Saylor further indicated that he agreed with Chief
Justice Castille’s opinion that “assessment of whether additional categories
of claims will qualify is necessarily an evaluative one ....” Id., at 356. Thus,
it appears that Justice Saylor agreed with the lead opinion that a claim that
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a mandatory minimum sentence was improperly imposed based upon the
record is properly classified as an illegal sentence. However, it also appears
that Justice Saylor eschewed the lead opinion’s explicit reasoning for this
conclusion in favor of Chief Justice Castille’s balancing test.
Finally, Justice Eakin wrote a concurring opinion, joined by Chief
Justice Castille. This concurring opinion opined that, so long as the sentence
remains within the statutory limits, it cannot be considered illegal. See id.,
at 356. As a result, Justice Eakin agreed with “Chief Justice Castille’s view
that this case concerns retroactivity, and the lead opinion needlessly
redefined illegality ….” Id. It is therefore clear that Justice Eakin rejected
the reasoning employed in the lead opinion.
Thus, we conclude that four Justices rejected the lead opinion’s
application of the “bright line” test, and implicitly this Court’s line of en banc
cases that have followed such a test, and instead favored some form of
balancing test when evaluating whether a sentencing claim is subject to
waiver for procedural defaults. The exact contours of the balancing test are
not well-defined, and may, in fact, be a source of contention even between
the four Justices favoring such a test. We are therefore left to balance the
interests involved based upon the circumstances of the case presently before
us relative to the circumstances present in Foster.
Here, Spangler’s first constitutional challenge asserts that Section
7508 violates the Due Process clause due to vagueness concerns. In order
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to avoid due process concerns, a statute must not be vague. See
Commonwealth v. Habay, 934 A.2d 732, 737 (Pa. Super. 2007). “The
due process standards of the Federal and Pennsylvania Constitutions are
identical.” Commonwealth v. Scott, 878 A.2d 874, 878 n.4 (Pa. Super.
2005) (citations omitted). The void-for-vagueness doctrine “requires that a
penal statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.”
Commonwealth v. Duda, 923 A.2d 1138, 1147 (Pa. 2007) (citations
omitted). Thus, “a penal statute must set forth a crime with sufficient
definiteness that an ordinary person can understand and predict what
conduct is prohibited. The law must provide reasonable standards which
people can use to gauge the legality of their contemplated, future behavior.”
Habay, 934 A.2d at 737 (citations omitted). This specificity requirement
does not require a statute to “detail criminal conduct with utter precision,”
as these competing principles are “rooted in a rough idea of fairness.” Id.
(citations omitted). Accordingly, “statutes may be general enough to
embrace a range of human conduct as long as they speak fair warning about
what behavior is unlawful.” Id. (citations omitted).
We conclude that since a void for vagueness challenge requires a
reference to “a rough idea of fairness,” it is not the sort of claim that
qualifies as non-waivable under the balancing test favored by the four
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concurring Justices in Foster. This issue is not obvious or undeniable. Nor
is it capable of even administration, as different jurists can have different
conceptions of fairness. Thus, we conclude that Spangler’s void for
vagueness challenge has been waived.
Next, Spangler argues that Section 7508 violates the equal protection
clause. The equal protection clause of the Fourteenth Amendment to the
Constitution of the United States provides that “like persons in like
circumstances will be treated similarly.” Curtis v. Kline, 254, 666 A.2d
265, 267 (Pa. 1995). Under an equal protection analysis, there are three
recognized categories of governmental classification, each requiring a
separate standard of scrutiny. See Commonwealth v. Hilliar, 943 A.2d
984, 996 (Pa. Super. 2008) (citation omitted). Each standard of scrutiny
requires a jurist to determine whether the challenged law is related to its
claimed objective. See id. The higher standards of scrutiny require a jurist
to evaluate the importance of the claimed governmental objective. See id.
Under these standards, we fail to see how Spangler’s equal protection
claim could be termed “obvious” or “undeniable.” Nor is such a claim
capable of even administration, as different jurists can have different
conceptions of the importance of given governmental objectives. Thus, we
conclude that Spangler’s equal protection challenge is waived for his failure
to preserve it below.
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Finally, Spangler argues that Section 7508 constitutes cruel and
unusual punishment in violation of the eighth amendment. Unlike Spangler’s
other challenges to the constitutionality of Section 7508, his eighth
amendment challenge is non-waivable. An appellant who challenges the
constitutionality of his sentence of imprisonment on a claim that it violates
his Eighth Amendment rights raises a legality of the sentencing claim. See
Commonwealth v. Robinson, 82 A.3d 998, 1020 (Pa. 2013). On issues of
law our scope of review is plenary and our standard of review is de novo.
See Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006). A
punishment is cruel and unusual “only if it is so greatly disproportionate to
an offense as to offend evolving standards of decency or a balanced sense of
justice.” Commonwealth v. Ehrsam, 512 A.2d 1199, 1210
(Pa. Super. 1986).
Spangler’s argument consists of noting the growing consensus that
mandatory sentences for non-violent drug offenders constitute a poor policy
choice. See Appellant’s Brief, at 23-25. However, even accepting this
proposition at face value, it is far from establishing that the mandatory
seven-year sentence at issue here offends evolving standards of decency or
a balanced sense of justice. The trial court imposed the minimum seven-
year sentence after Spangler pled guilty to 38 crimes. We do not find a
seven-year sentence to be a grossly disproportionate consequence for the
commission of 38 crimes.
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As we conclude that none of Spangler’s issues on appeal merit relief,
we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Bowes files a concurring memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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