Commonwealth v. Kleinicke

DISSENTING OPINION BY

KLEIN, J.:

¶ 1 While I acknowledge that there is confusion from multiple opinions by the United States Supreme Court on the Blakely-Booker 13 issue, I believe that when a fact is essential to the actual punishment a defendant will receive, the determination of that fact must be made beyond a reasonable doubt by a jury. I believe that McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), which then affirmed Pennsylvania’s sentencing scheme, and Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), upon which the majority rely, are no longer the law following Booker, although they have not been spe *576 cifically overruled by the United States Supreme Court.

¶ 2 It is true that McMillan survived the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Both McMillan and Harris may also be reconciled with Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). However, in my view, after Booker, when a fact enhances the sentence that will be imposed, that must be determined by a jury beyond a reasonable doubt. I believe this is true whether the fact determines a mandatory minimum, impacts a flat sentence (such as the Federal sentence), or determines what block in a sentencing grid will be the starting point for the minimum sentence in a sentencing scheme such as Pennsylvania’s. Therefore, I am constrained to dissent.

1. A common sense evaluation of Booker requires a jury to determine facts that require enhanced mandatory minimum sentences or increase the range for sentencing guidelines.

¶ 3 I believe Booker provides a common sense and clearly articulated interpretation of the basic principles first announced in Apprendi and Blakely . I believe the United States Supreme Court has reached a logical conclusion based on its pronouncements in Apprendi and Blakely .

¶ 4 The United States Supreme Court has determined that when a fact will drastically impact the number of years a defendant will spend incarcerated, that fact should not be determined by a judge by a preponderance of the evidence standard but rather by a jury using “beyond a reasonable doubt” as the burden of proof.

¶ 5 Initially, the Supreme Court made the distinction based on whether or not the fact was “an element of the crime.” Then it moved away from that to require a jury where the fact increased the statutory maximum. Then it moved further to say that when a fact affected the grid in the federal sentence, although not exceeding the statutory maximum, it must be determined by a jury. Since the United States Supreme Court is taking a realistic step as to whether the fact increases the amount of time a defendant is likely to spend in prison, it is only another short step to say that if the fact affects the grid position of a scheme like Pennsylvania’s, that fact must be determined by the jury, whether the “guideline” is a minimum number or a “fixed” number such as in the Federal system.

¶ 6 The bottom line is that in the great majority of cases in Pennsylvania, the amount of time a defendant will be in prison is affected less by the maximum sentence than it is by the particular grid box in which the minimum sentence is determined or whether a mandatory minimum sentence is imposed. Pennsylvania imposes restrictions on a’ trial judge from the sentencing guidelines and the impact of mandatory minimum sentences. If a judge fails to impose a mandatory minimum sentence or sentences outside the “standard” range, and certainly outside the guidelines, unless there is something extraordinary about the facts and circumstances of the crime and/or defendant, that sentence will be reversed on appeal.

¶ 7 This is not a rare circumstance; it comes up every day in the criminal courts of the Commonwealth. Was whatever the defendant possessed something that a victim would have reasonably believed to be a firearm? How much of the drugs seized was possessed by the defendant and how much belonged to someone else? Exactly how far was the drug sale from a school yard? These are frequently contested facts.

*577 ¶ 8 The United States Supreme Court sensibly rejected the concept that jury involvement is required only when the enhancement results in a longer than statutorily allowed maximum sentence. Likewise, since the time of incarceration will generally vary greatly depending on which box in Pennsylvania’s grid a case falls, it is only sensible to require facts that affect that position to be determined beyond a reasonable doubt by a jury. While in the Federal system, the flat number in the grid generally determines the amount of time a defendant will serve, in Pennsylvania, the sentencing guideline minimum generally is responsible for the date the defendant will get out of prison. Pennsylvania generally has sufficiently long maximum sentences and the time actually in custody is more determined by the minimum. Therefore, the practical effect of the United States Supreme Court cases would be negligible if we were to ignore factors that have a major impact on the sentence and the time a defendant will spend incarcerated. If the theory of Ap-prendi and Blakely is to be followed, it is necessary to have a jury decide the factual basis of mandatory minimum sentences or higher guideline minimum sentences when the facts have a major impact on the sentence. And that is what the United States Supreme Court said in Booker.

¶ 9 Therefore, I believe that McMillan and Harris have in fact been overruled by Booker and any fact relating to the crime that either requires a mandatory minimum or changes the standard range minimum must be determined by the jury. This view has is supported by a recent decision authored by the distinguished jurist, Judge Nancy Gertner of the United States District Court for the District of Massachusetts. In addition to being a member of the federal judiciary, Judge Gertner has taught sentencing at Yale School of Law for at least five years. She also is a Charles E. Merriam Distinguished Professor at Arizona State Law School and has taught at the law schools at Harvard, Boston College, Boston University, Northeastern University and the University of Iowa. 14

¶ 10 Judge Gertner addressed this issue in United States v. Malouf, 377 F.Supp.2d 315 (D.Ma.2005). In Malouf , the question was whether such sentence affecting facts as drug quantity must be proven to a jury beyond a reasonable doubt. Following an exhaustive review of relevant case law, from McMillan through Harris and concluding with Apprendi Shepard, 15 and Booker, Judge Gertner concluded such elements were subject to jury consideration. 16

In my judgment, the breadth of holding in Booker and Blakely have in fact overruled Harris . The Court has gone from holding that the Sixth Amendment is implicated in the determination of facts that increase a statutory maximum (Ap-prendi) to applying the Sixth Amendment to all facts “essential to the punishment” (Booker and Blakely). It has extended the application of the Sixth Amendment from statutory maximum penalties (Apprendi) to the mandatory “Guidelines” (Booker).

*578 If the quantity figures so prominently in this important decision, it is not unreasonable to ask, as the court did of the Federal Sentencing Guidelines in United States v. Gray, 362 F.Supp.2d 714 (S.D.W.Va.2005) — what level of confidence should the decisionmaker have in that fact before it sentences?

Malouf at 326, 329 . 17

¶ 11 Initially, there seem to be three factors that allowed Pennsylvania’s sentencing enhancements to escape the requirement of a jury trial and proof beyond a reasonable doubt. Two of the three have been specifically rejected by the United States Supreme Court, and a fair reading of the latest cases demonstrates that the third should fail as well.

¶ 12 A. Pennsylvania’s sentencing enhancements are not “elements of the crime.” That was the basis of McMillan . It is noted that Justice Stevens, who wrote the majority in Booker, said in dissent in McMillan , “It would demean the importance of the reasonable doubt standard— indeed, it would demean the. Constitution itself — if the substance of the standard could be avoided by nothing more than a legislative declaration that prohibited conduct is not an ‘element’ of a crime.” 477 U.S. at 102 , 106 S.Ct. 2411 .

¶ 13 The majority in McMillan was decided under a due process analysis and determined that the legislature could “up the ante” by making the visible possession of a firearm a sentencing factor rather than an element of underlying crime itself. By determining this, the majority decision ended by noting- there was no Sixth Amendment right to jury sentencing. Id. at 93 , 106 S.Ct. 2411 .

¶ 14 This view, however, was later limited by the Supreme Court in Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) and Booker, supra. In Ring , a death penalty case, the Supreme Court stated: “If a State makes an increase in the defendant’s authorized punishment contingent upon a finding of fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Ring at 602, 122 S.Ct. 2428 . Further, “[t]he characterization of a fact or circumstance and an ‘element’ or ‘sentencing factor’ is not determinative of the question of ‘who decides,’ judge or jury.” Id. at 605 , 122 S.Ct. 2428 .

¶ 15 This concept was then taken from the arena of death penalty litigation and endorsed by the majority in Booker as applied to the federal sentencing guidelines. When Ring and Apprendi were read together, the Booker court determined: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756.

¶ 16 Therefore, it seems that while “upping the ante” by the use of sentencing factors may not offend due process, it now does run afoul of the Sixth Amendment, *579 unless the relevant fact is proven to a jury. Reading McMillan, Ring and Booker together, I am left with the conclusion while it may be constitutionally permissible for a legislature to enact sentencing factors that are fact dependant and are not elements of the crime, those facts are still subject to Sixth Amendment scrutiny and must be proven to a jury beyond a reasonable doubt. 18

¶ 17 B. The enhancement does not affect the maximum, but only limits the judge’s discretion for the minimum sentence. This is how the Apprendi Court distinguished McMillan. 530 U.S. at 487 , 120 S.Ct. 2348 , Footnote 13. In Booker, the dictum in a footnote in McMillan was rejected, as the Court rejected the government argument that since the maximum was not affected, Apprendi and Blakely do not apply. Booker’s maximum sentence was not affected, but the guidelines went from 21 years, 10 months to 30 years because of “extra” drugs the trial judge found he possessed by a preponderance of the evidence. As Justices Stevens said, “The simple answer is, of course, that we were only considering a statute in that case; we expressly declined to consider the Guidelines. See Apprendi, 530 U.S. at 497, n. 21 , 120 S.Ct. 2348 . It was therefore appropriate to state the rule in that case in terms of a ‘statutory maximum’ rather than answering a question not properly before the court.” Booker, 125 S.Ct. at 752-53.

¶ 18 Further, Booker makes it clear that it is not speaking about statutory absolutes in sentencing. Booker specifically addresses guideline máximums. Guidelines are by nature a free flowing concept with room to vary a sentence. Federal guidelines are structured to address maximum sentences and so it is not surprising that Supreme Court decisions addressing the issue speak in those terms. What is fundamentally at issue, however, is the real sentence imposed upon the defendant.

¶ 19 There is undoubtedly a statutory maximum sentence for drug crimes in the federal scheme (most likely life imprisonment). None of the federal cases has determined sentencing factors were constitutionally sound because the maximum possible sentence was not affected. It therefore seems artificial to limit analysis of the Pennsylvania sentencing scheme because a sentencing factor does not extend the absolute maximum sentence.

¶ 20 Moreover, in the vast majority of cases, increasing the minimum sentence in Pennsylvania does directly affect the maximum sentence. We may take judicial notice of the fact that in an overwhelming *580 number of cases the maximum sentence is double the minimum, not the actual statutory maximum sentence allowed. Thus, if we look at a 5 year mandatory minimum sentence for a crime with a firearm as opposed to an otherwise guideline minimum sentence of 2 years, the maximum sentence will have increased from 4 years to 10 years. Even though Pennsylvania sentencing speaks in terms of minimum sentences as opposed to the máximums, that which affects the minimum has a real and immediate effect on the maximum sentence.

¶ 21 C. Pennsylvania has an “indeterminate” sentencing system unlike the “determinate” system of the Federal Courts. This ignores the reality of the sentencing schemes in Pennsylvania and the Federal system. The “maximum” imposed in the Federal system does not fix in stone the amount of time a defendant will serve in custody, as there are various credits for “good time” and other factors. Pennsylvania focuses on the minimum sentence and requires that the minimum be no more than half the maximum. 19 That fixes the date a defendant will be eligible for parole, which often will be the release date unless the defendant acts out while in custody or there is a determination of dangerousness which could delay the parole date. However, for a vast number of defendants, the date of release is close to the minimum sentence. That is why it is the minimum that is set by the guidelines, assuming that in most cases the maximum will be twice the minimum.

¶ 22 In most of the cases, the actual time in jail will be determined by factors such as the amount of the drugs involved, whether or not something is a “firearm” because it could be reasonably assumed by the victim to be a firearm, how close the drug sale is to a school or playground, etc. Since those facts will have a major impact on the actual time in custody, it makes no sense to have a jury decide the facts only if they affect the theoretical maximum when a judge can make the decision on the minimum which much more likely will affect the actual number of months spent in custody.

¶ 23 Both the Federal and State systems are in effect “indeterminate” since at sentencing one cannot determine how long a defendant will spend in custody in either situation.

¶ 24 Can anyone dispute that Kleinicke will spend a drastically increased time in custody if he is determined to have possessed 963 marijuana plants rather than only 15? The mandatory minimum for a first offender possessing 15 plants is one year, and the normal sentence would be one to two years. However, if there are 963 plants, there is a mandatory minimum which would result in a flat five year sentence.

¶ 25 As noted, the overwhelming numbers of cases in Pennsylvania are more affected by the minimum sentence than the maximum. Therefore, if a factual determination shifts the guideline grid for the minimum so that a judge is compelled to sentence within that grid (unless there are extenuating circumstances), if the jury does not make that determination, the general effect of the Apprendi-Blakely-Booker cases is negligible.

¶ 26 I also comment that the “mayhem” feared by the majority if these determinations are to be made by a jury will not come to pass. Just as in a theft case, where there is a special interrogatory to *581 determine the value of the property taken, in other situations there will be a line added to the verdict sheet as to the amount of the drugs, the distance from a playground, whether a firearm was used, etc. Also, there will always be factors specific to each case that cannot be accounted for in guidelines or mandatory enhancements, and those factors can always be used by the sentencing court to fashion an appropriate sentence within or without the guidelines. This court already sees more than its fair share of challenges to these discretionary sentencing determinations. The volume of work would be relatively unaffected.

¶ 27 Proof to a jury beyond a reasonable doubt would only apply to those factors which are specifically enumerated by the legislature or sentencing commission as enhancing a sentence or imposing a mandatory minimum sentence. These factors have been statutorily lifted from discretionary consideration by a sentencing judge and are easily distinguishable for review.

¶ 28 Therefore, in this case I would hold that the amount of plants must be determined beyond a reasonable doubt by a jury and I would remand for a new trial for a jury to decide the number of plants involved.

2. The “hung jury” on the amount of plants requires a new trial rather than a sentence based on only 15 plants.

¶ 29 I do not believe the defendant should be sentenced as if there were only 15 plants. The appropriate disposition is to remand the case for a new jury trial where the Commonwealth will have the opportunity to prove beyond a reasonable doubt to a new jury that more than 50 plants were involved.

¶ 30 I decline to suggest sentencing on only 15 plants for two reasons. First, because I do not believe there was an actual jury determination, but merely an advisory jury determination for the trial judge, who made the findings. Secondly, even were the jury verdict treated as binding, because the jurors did not agree, there was a hung jury and no determination at all as to whether there were more than 50 plants involved.

A. The jury verdict as an “advisory verdict.”

¶ 31 I note there was no ultimate jury disposition as to the number of plants possessed or manufactured by Kleinicke. The trial court made the ultimate determination on this issue and the trial court’s finding is what was recorded and is the basis of Kleinicke’s sentence. This ultimate decision was in keeping with the state of the law as it was understood at the time of the trial.

¶ 32 Had the trial court never allowed the jury to consider the question in the first place, there would be no question that the proper disposition would be to remand for a jury determination on the number of plants involved. Because statutorily the number of plants involved was not meant to be a binding jury determination, any jury opinion as to the number of plants may be seen as irrelevant — at that time— and thus would be akin to an advisory verdict such as is found in equity or orphans’ court. 20

*582 ¶ 33 Because at the time it was the practice for the trial court to determine the number of plants involved, Kleinicke suffered no prejudice because the trial court allowed the jury to consider the issue. The judge made the ultimate determination.

B. A hung jury is of no effect and there was no jury verdict whether or not there were more than 50 plants.

¶ 34 Of course, the trial court did allow the jury to consider the matter. Even so, the jury did not arrive at an ultimate decision. Eleven of the twelve jurors believed there were 693 plants involved. One of the jurors believed there were 15. By necessity, all agreed that there were at least 15 marijuana plants. However, that does not necessarily end the discussion because the jury was not unanimous on whether there were 693 plants.

¶ 35 As the majority pointed out, the United State Supreme Court has required that when a factual decision determines the length of a mandatory sentence, now it is up to a jury to decide those facts using a “beyond a reasonable doubt” standard. In this case, it was up to the jury to determine whether there were 51 or more plants involved. It is as if there were two charges, one for possession of 15 plants and another count of possession of 51 or more plants. At most, given the jury determination, we could say that Kleinicke had been found guilty of the lesser offense of possession of 15, but the jury hung on the question of whether he possessed 51 or more. It is as if possessing 51 or more plants was a different crime, and the number of plants was an element of that more serious crime. It is notable that the jury did not “acquit” Kleinicke of the greater charge. Had the jury reached a completely unanimous verdict on the number of plants, this discussion might not have been necessary, but the jury did not reach a complete verdict.

¶ 36 Once we view elements of sentencing equivalent to elements of the crime for due process purposes, then it would seem appropriate to treat the elements similarly for purposes of a hung jury. When a defendant is found guilty of a crime, in a multi-count indictment, but the jury cannot reach a verdict on other counts, then, in general, the Commonwealth is allowed to try the defendant again on those counts upon which the original jury could not agree.

¶ 37 This is not offensive to the constitutional prohibition against double jeopardy. For example, in Commonwealth v. Pounds, 281 Pa.Super. 19 , 421 A.2d 1126 (1980), the defendant was found guilty of DUI and crossing the center line. The jury hung on the charge of vehicular homicide. The verdict on the lesser charges was recorded and the Commonwealth was allowed to retry Pounds on the homicide charge. Similarly, in Commonwealth v. Kemmerer, 526 Pa. 160 , 584 A.2d 940 (1991), the defendant was acquitted of first degree murder and voluntary manslaughter, but the jury hung on second and third degree murder and involuntary manslaughter. The Commonwealth was allowed to retry Kemmerer on those charges the jury had not agreed on.

¶ 38 By analogy, if we accept the jury’s consideration of the sentencing elements as binding, then the jury agreed to one of the charges but hung on the other. Thus, the Commonwealth would be allowed to retry Kleinicke on the specific factual question of whether he possessed more than 51 marijuana plants.

¶ 39 In summary, I believe that Booker requires a jury to determine how many plants Kleinicke possessed. Since the jury hung in this case and the judge made a *583 determination, it is necessary to remand this case for a new jury trial where it will be the Commonwealth’s burden to prove, beyond a reasonable doubt, whether or not Kleinicke possessed more than 50 marijuana plants.

¶ 40 For these reasons, I dissent.

. Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

. I mention these aspects of Judge Gertner’s resume only to note that both professionally in the trial court and academically, she is well versed in the nuances of sentencing.

. Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005) (questioning the “traditional sentencing factor” approach of McMillan and Harris and holding only prior convictions served as predicates for Armed Career Criminal status.)

.I would adopt the reasoning found in Mal-ouf. That decision is too long to be cited here and I recommend a close study of that decision.

. Judge Gertner also compares the Booker/Harris dichotomy, where Booker did not specifically overrules Harris , to the Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954)/Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896) dilemma. Brown did not specifically overrule Plessy, yet there was no doubt the logic of Brown forbid the separate but equal doctrine in public transportation cases that followed. A lower court, in refusing to follow Plessy, stated: “a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence.” Malouf at 326 .

. In many ways, the Sixth Amendment analysis of Booker/Ring has eviscerated the due process analysis of McMillan in announcing it makes no difference whether a fact is an element of a crime or a sentencing factor. Thus, we would be left to ponder why in a theft case a jury must decide beyond a reasonable doubt whether the value of the thing taken was $1999.00 making the crime a misdemeanor, or $2001.00 making the crime a felony — with the concurrent increase in sentencing, but a judge may decide by a fair preponderance of evidence whether a drug defendant possessed 20 live marijuana plants (a minimum one year sentence) or 21 plants, subjecting the defendant to a three year minimum sentence. Why the thief should be granted greater constitutional protection than the marijuana dealer is not immediately answerable.

I note, too, the thief, having been convicted on all relevant elements beyond a reasonable doubt, would be sentenced under the guidelines which allow a judge to deviate either higher or lower given the circumstances. However, the marijuana possessor is sentenced based upon a mere preponderance of the evidence to a mandatory minimum from which no lower deviation is allowed. Yet under the current analysis of the law, the stricter punishment is subject to lesser review.

. There is an exception if a mandatory minimum is more than one-half the statutory maximum.

. I note that advisory jury verdict is, or at least at recently was, used in Florida in death penalty cases. There, the jury renders an advisory verdict on the application of the death penalty, but it is the trial judge who makes the ultimate determination. See Dobbert v. Florida, 432 U.S. 282 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977) (abrogated on other grounds).