holding that due process not offended by Pennsylvania statute that allowed trial court to increase a defendant's sentencing range up to a five-year minimum upon finding by a preponderance of the evidence that the defendant visibly possessed a firearm while committing an underlying offense; while statute allowed court to "up the ante” on defendant's sentence, it did not alter the maximum penally for the underlying offense
How later courts described this case
- holding that due process not offended by Pennsylvania statute that allowed trial court to increase a defendant's sentencing range up to a five-year minimum upon finding by a preponderance of the evidence that the defendant visibly possessed a firearm while committing an underlying offense; while statute allowed court to "up the ante” on defendant's sentence, it did not alter the maximum penally for the underlying offense
- explaining that in mandatory minimum for possession of a firearm the finding of visible possession of a firearm "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it"
- holding that Pennsylvania could, consistent with the Due Process Clause, treat "visible possession of a weapon” as a sentencing consideration rather than an element of the underlying offense and rejecting the argument that, even if treated as a sentencing consideration, Pennsylvania must apply a heightened burden of proof
- explaining that Pennsylvania’s mandatory minimum law did not vest in the state legislature unchecked authority to redefine crimes because, among other reasons, “[t]he statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.”
Written by the judges who cited it.
Later courts went against this
Reported overruled on other grounds by Alleyne v. United States, 133 S. Ct. 2151 (2013) — not on the Supreme Court's list
477 U.S. 79 (1986), abrogated by Alleyne v. United States, 570 U.S. 99
Supreme Court of the United StatesJun 17, 20135 citing opinionsother groundsunconfirmed confidenceRead itReported overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000) — not on the Supreme Court's list
After Apprendi, the United States Supreme Court considered and rejected the argument that Apprendi overruled McMillan:
Questioned by State v. Stanton, 176 N.J. 75 (2003)
[b]eeause of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan, and the broad understanding of ‘punishment’ recognized by this Court, we will construe subsection (e) of NERA to require that the ‘violent crime’ condition must be submitted to a jury and found beyond a reasonable doubt.
Questioned by State v. Petrucci, 343 N.J. Super. 536 (2001)
Because of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan [v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) ], and the broad understanding of “punishment” recognized by this Court, we will construe subsection (e) of NERA to require that the “violent crime” condition must be submitted to a jury and found beyond a reasonable doubt.
Questioned by State v. Figueroa, 358 N.J. Super. 317 (2003)
Because of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan [v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)], and the broad understanding of "punishment" recognized by this Court, we will construe subsection (e) of NERA to require that the "violent crime" condition must be submitted to a jury and found beyond a reasonable doubt.
Limited by People v. Nguyen, 54 Cal. Rptr. 3d 535 (2007)
) The court limited its holding in McMillanthat a judge could constitutionally determine by a preponderance of the evidence the existence of statutorily selected sentencing factors that set a minimum sentence"to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict>-limitation identified in the McMillan opinio
Distinguished
Distinguished by United States v. Gurley, 860 F. Supp. 2d 95 (2012)
McMillan and Harris are distinguishable from the case at hand as well.
Distinguished by State v. Clarke, 156 Wash. 2d 880 (2006)
The dissent argues that McMillan and Harris are distinguishable from this case because the mandatory minimum sentencing schemes at issue in those cases operated “ ‘solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding.
Distinguished by People v. Eason, 435 Mich. 228 (1990)
It is clear from a reading of Oyler and McMillan that Shelton is distinguishable, and that due process does not require the filing of a separate charge pursuant to a statute that does not create a new offense but simply authorizes the sentencing court to enhance the sentence.30 The prosecutor is
The opinion
Justice Marshall,
with whom Justice Brennan and Justice Blackmun join, dissenting.
I agree with much in Justice Stevens’ dissent, post, at 96-98. Whether a particular fact is an element of a criminal offense that, under In re Winship, 397 U. S. 358 (1970), must be proved by the prosecution beyond a reasonable doubt is a question that must be decided by this Court and cannot be abdicated to the States. “[I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law.” Mullaney v. Wilbur, 421 U. S. 684, 698 (1975). The deference that the majority gives to the Pennsylvania Legislature’s statement that the visible possession of a firearm should not be considered an element of the crime defined by 42 Pa. Cons. Stat. § 9712 (1982) is thus wholly inappropriate.
*94 I would not, however, rely in this case on the formalistic distinction between aggravating and mitigating facts. The “continued functioning of the democratic process,” post, at 100 (Stevens, J., dissenting), might provide us with some assurance that States will not circumvent the guarantee of Winship by criminalizing seemingly innocuous conduct and then placing the burden on the defendant to establish an affirmative defense. But this Court nonetheless must remain ready to enforce that guarantee should the State, by placing upon the defendant the burden of proving certain mitigating facts, effectively lighten the constitutional burden of the prosecution with respect to the elements of the crime. See Patterson v. New York, 432 U. S. 197, 206-207 (1977) (allowing State to require defendant to prove extreme emotional disturbance by preponderance of the evidence but noting that this affirmative defense “does not serve to negative any facts of the crime which the State is to prove in order to convict of murder”).
I would put off until next Term any discussion of how mitigating facts should be analyzed under Winship . This issue will be aired when the Court considers Martin v. Ohio, No. 85-6461, cert. granted, 475 U. S. 1119 (1986), in which a defendant challenges Ohio’s requirement that the accused bear the burden of proving a claim of self-defense by a preponderance of the evidence. For now, it is enough to agree with Justice Stevens that “if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a ‘fact necessary to constitute the crime’ within the meaning of our holding in In re Winship,” post, at 103. Pennsylvania has attached just such consequences to a finding that a defendant “visibly possessed a firearm” during the commission of any aggravated assault, and, under Winship , the prosecution should not be relieved of proving that fact beyond a reasonable doubt. I dissent.