# Commonwealth v. Kleinicke > Superior Court of Pennsylvania · March 8, 2006 · 2006 Pa. Super. 48 URL: https://www.frixlaw.com/law-library/cases/9540627 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. William E. KLEINICKE, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** March 8, 2006 - **Citations:** 2006 Pa. Super. 48; 895 A.2d 562; 2006 Pa. Super. LEXIS 179 - **Precedential status:** Published - **Opinion:** Dissent by Bender - **Judges:** Hudock, Elliott, Joyce, Melvin, Klein, Bender, Bowes, Gantman, Panella - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9540627 ## How later opinions describe it (automated extraction) - holding the imposition of five year mandatory minimum sentence for possession of fifty-one or more live marijuana plants without unanimity of jurors where fifteen (15) of six hundred ninety-three (693) plants were tested did not violate the appellant’s Sixth Amendment right to… - noting that where “the reasons offered for the departure [from the sentencing guidelines] do not appear reasonable to this Court, the sentence will be vacated and the case remanded for resentencing” ## Opinion text DISSENTING OPINION BY BENDER, J.: ¶ 1 In a trio of decisions comprised of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the United States Supreme Court reversed a trend that had gathered tremendous momentum in the administration of criminal justice in this country. With roots in the common law of England, the traditional approach to the administration of criminal justice in the United States, and in the colonies prior to the birth of this nation, commanded that a jury return a verdict and, if that verdict was guilty, that the court impose a sentence based upon that verdict and the factual predicate underlying that verdict. Despite the lengthy tradition of trial by jury, in the half-century or so preceding the decision in Apprendi it had become increasingly prevalent to remove from the jury the factfinding function as to key and material facts upon which the imposition of punishment hinged and to place it in the hands of the trial judge. Under modern sentencing schemes, the jury was still required to find the defendant guilty of the basic offense, but the actual sentence imposed might vary dramatically based upon a number of potential findings made by the trial court post-verdict. ¶ 2 For some time, it was suspected and argued that the reallocation of this fact-finding function infringed upon the right to trial by jury guaranteed to all citizens in the United States Constitution. However, to the extent this argument had validity, the infringement did not end there, as increasingly this extra or post trial fact-finding was conducted upon a preponderance of the evidence standard. This practice stood in derogation of the traditional burden placed upon the sovereign. Since the landmark case of In Re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), it has been deemed an essential application of due process that conviction rest upon proof beyond reasonable doubt. Thus, the new trend in administering criminal justice meant that the actual amount of time spent in prison was increasingly a function not of the finding of a jury tested against the beyond reasonable doubt standard, but of a finding of fact(s) made by a jurist based upon a preponderance of the evidence standard. Most likely spurred by the expediency of the approach, some might contend this legislative trend essentially steamrolled over key rights guaranteed to all citizens by the United Stated Constitution, and kept right on track until the momentum first slowed in Apprendi , then hit a halt in Blakely , and finally went into reverse in Booker . ¶ 3 One cannot deny that a sea change has taken place in the wake of Blakely . While Apprendi arguably acted only to reaffirm key decisions like McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), and Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), which did not impair the modern approach to sentencing, Blakely has been seen as going much further and has left sentencing schemes in numerous jurisdictions in shambles. 21 Indeed, *584 Blakely has led to the repeal of the Federal Sentencing Guidelines in Booker , thereby radically altering the way sentences are handed out in federal- courts across the United States. If Blakely and Booker are seen as re-vindicating the rights of trial by jury and proof beyond reasonable doubt all across America, the Majority has decided that Pennsylvania will not join this coun-tertrend and that criminal defendants in Pennsylvania are not entitled to the same protections afforded citizens of neighboring jurisdictions. Thus, where convicted criminals in Washington cannot have their guideline sentence enhanced for, say, acting with “deliberate cruelty” unless the question of deliberate cruelty was admitted or put to a jury and found proven beyond reasonable doubt, and where convicted criminals in the federal system will not be exposed to mandatory minimum sentences unless the qualifying factor, such as the quantity of drugs possessed, is similarly admitted or put to a jury and found proven beyond reasonable doubt, convicted criminals in Pennsylvania can be subject to mandatory mínimums and sentence enhancers upon a post-trial judicial finding of fact proven by a mere preponderance of the evidence. I cannot bring myself to join this conclusion. ¶ 4 The Majority contends that the constitutional protections being revalidated all across the country are not to be enjoyed by citizens of Pennsylvania because Pennsylvania employs a system of sentencing and release from incarceration different than many other jurisdictions in America and different from the ones under consideration in the landmark cases cited above. More specifically, the Majority contends that since Pennsylvania employs a system of indeterminate punishment, which simply means that the court imposes a range of potential incarceration — of which it has discretion in choosing — and the prisoner’s actual date of release is left to the determination of the Board of Probation and Parole, Blakely and Booker are distinguishable and the principles enunciated in those cases do not relate to the mandatory minimums and enhancements found in Pennsylvania’s sentencing scheme. ¶ 5 While it is true that there is a difference between Pennsylvania’s sentencing scheme and those found in Blakely and Booker , the Majority fails to offer any true analysis of why this difference means that trial judges in Pennsylvania are free to impose Booker-like mandatory mínimums and Blakely-like enhancements upon those appearing before them without an admission of guilt or a qualifying finding by a jury, while judges in the state of Washington and the federal courts can no longer do so. Reading between the lines of the Majority’s Opinion, and taking those inferences to their logical end, the general theme that appears to underlie the Majority’s distinction is essentially a “no harm, no foul” argument tied to the variability and unpredictability innate in Pennsylvania’s system of sentencing and serving prison time in Pennsylvania. 22 In other *585 words, the Majority seems to be contending that because a convicted criminal just might have received from the court in the exercise of its discretion the very same sentence the mandatory minimum dictated or the sentencing enhancement produced, or just might have been made to serve that much time by the parole board, if indeed given that sentence by the court, then the constitutional protections at issue can be obviated. ¶ 6 In actuality, the Majority’s premise had legal support, right up to the issuance of Blakely and Booker . Beyond then, however, the issue is hardly as simple as the Majority portrays it. Encompassed in Williams v. New York, 337 U.S. 241 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949), the 1949 sentencing decision upon which the Majority builds its thesis, and sentencing cases that would follow, is an approach to sentencing one might term as laissez-faire. The approach is grounded in the essential due process notion of notice and the expedient premise that the citizenry and prospective criminal is placed on notice of what punishment awaits him for engaging in a proscribed activity. If one were to summarize this approach, it might read like this: as long as the sentence imposed was within the range authorized by statute for the crime committed, the manner in which the sentence was imposed was immaterial and did not offend either the right to jury trial nor due process/proof beyond reasonable doubt. The rationale for the approach might be summarized as this: since a convicted individual was considered on notice that he could receive up to the statutorily authorized punishment for the crime committed, and since the state could legally sentence the convicted individual to the statutorily authorized maximum, as long as the sentence does not exceed that statutorily authorized maximum, the manner in which the sentence is imposed is beyond constitutional restriction. ¶ 7 The above approach is aptly exemplified by the words of Justice Scalia in his Concurrence to Apprendi : I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years — and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted governor if his sentence is commuted). Will there be disparities? Of course. But the criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens. Apprendi, 530 U.S. at 498 , 120 S.Ct. at 2367 . ¶ 8 That the above approach and rationale underlay the sentencing decisions pre- Apprendi/Blakely is evidenced by the following passage from Harris , where the Court capsulized its earlier holding in McMillan : The sentencing factor in McMillan did not increase “the penalty for a crime beyond the prescribed statutory maximum,” 530 U.S. at 490 [, 120 S.Ct. 2348 ]; nor did it, as the concurring opinions in *586 Jones put it, “alter the congressionally prescribed range of penalties to which a criminal defendant is exposed,” 526 U.S. at 253[, 119 S.Ct. 1215 ] (SCALIA, J., concurring). As the Apprendi Court observed, the McMillan finding merely required the judge to impose “a specific sentence within the range authorized by the jury’s finding that the defendant [was] guilty.” Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. When a judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries — and without contradicting Apprendi. Harris, 536 U.S. at 563-65 , 122 S.Ct. at 2417-18 . Stated more succinctly, McMillan defended Pennsylvania’s mandatory minimum statutory provision by reasoning that the effect of the provision was merely to limit the exercise of the court’s discretion within a statutorily authorized range and since the punishment inflicted was within the range set forth by statute, the defendant had no right to complain that absent the mandatory minimum, he might have gotten a lesser sentence. ¶ 9 The above rationale was the glue that allowed all of the various sentencing decisions to adhere to one another in convincing fashion. As the Majority observes, Apprendi did not invalidate the above approach because the enhancement involved in Apprendi took the sentence outside the range specifically authorized by the New Jersey statute for the crime in question, a second degree offense, and moved it into a class equal to a first degree offense. Apprendi, 530 U.S. at 491 , 120 S.Ct. at 2363 . As such, it clearly violated the principle enunciated in the earlier decisions. That is, New Jersey was not prevented from punishing a convicted defendant more severely if it was concluded the defendant had acted with a biased purpose, it merely meant that to punish the defendant more severely the issue was subject to the right to jury trial. ¶ 10 However, the glue of the above rationale began to dissolve in Blakely , as the sentence imposed upon Blakely after the court-added enhancement was still safely within the limits authorized by statute. Unlike Apprendi , who received a sentence beyond that which he could be deemed to have been on notice, Blakely’s sentence was well below the statutorily authorized maximum and was, therefore, within the range Blakely was deemed to have been duly warned his criminal behavior could bring as punishment. If it was indeed true that “whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt,” as the Court had stated in Hands just a few years earlier, why did the fact that the court had decided that Blakely had acted with deliberate cruelty, rather than a jury, violate the 6th Amendment when an enhanced sentence was imposed on the basis of that finding? I would respectfully submit that nothing within the Majority’s Opinion satisfactorily answers this question. *587 ¶ 11 If I may be allowed to posit an explanation, the most intellectually satisfying answer is that by the time of Blakely the Court had backed away from its prior stance and was now unwilling to allow the constitutional analysis to be guided by a wholly abstract or theoretical possibility and instead looked at the real life consequences of judicial factfinding. In Blakely , although the Washington crimes code authorized a sentence of up to 10 year’s confinement, this number was a mere statutory ceiling, possibly reserved for the most egregious crime in the classification or the most egregious example of the crime in question. Most sentences actually imposed fell below this ceiling, and in Blakely’s case other applicable sentencing provisions delineated a presumptive sentence of 49 to 53 months imprisonment. Because of these provisions, the application of the sentencing enhancement meant, as the term enhancement implies, that for all intents and purposes Blakely would be spending an additional 37 months in prison as a result of a judicial finding of fact as opposed to a jury’s finding of fact. ¶ 12 Of course, the Blakely Court did not express an opinion that tying additional punishment to the factor in question would pose a constitutional dilemma and I doubt anyone would contend that attaching additional punishment to the factor of deliberate cruelty violated a constitutional protection. However, because the enhancement was added upon the court’s finding of fact, as opposed to a jury’s, the enhancement was deemed in violation of Blakely’s right to trial by jury. Or, to state the above in terms of another constitutional viewpoint, since an appreciable amount of Blakely’s prospective prison time was directly tied to a factual finding, that factual finding constituted an “element” for purposes of constitutional analysis and was not merely a “sentencing factor.” ¶ 13 The same observation/analysis applies to Freddie Booker, who, under federal statute, was subject to imprisonment for life after having been found guilty, by a jury, of possessing at least 50 grams of cocaine base. Despite the fact that a life sentence was statutorily authorized by the jury’s verdict, under the federal sentencing guidelines the quantity of drugs Booker was found to have possessed, ostensibly 92.5 grams, and Booker’s criminal history called for a theoretically less-severe sentence between 210 and 262 months in prison. However, at a sentencing hearing subject to a preponderance of the evidence burden of proof, the court heard evidence that had not been presented to the jury, evidence that Booker possessed 566 grams of “crack” in addition to the 92.5 grams the jury was told about. Based upon this finding, the sentencing guidelines provided a range of punishment between 360 months and life imprisonment. Again, since the jury’s verdict authorized a sentence of up to life imprisonment, the provision in Harris that “whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt” would have compelled the conclusion that Booker’s constitutional rights were not violated by the imposition of a 360 month sentence. Nevertheless, not only did the Booker Court conclude that the sentence in excess of 262 months violated Booker’s constitutional rights, the Court also concluded that the entire approach to sentencing encompassed in the federal sentencing guidelines was constitutionally infirm. ¶ 14 The rationale underlying Blakely and Booker seems undeniable, a system of sentencing that attributes a significant portion of a criminal defendant’s punishment to a finding of fact made by a judge *588 upon a preponderance of the evidence standard as opposed to a finding by jury utilizing a beyond reasonable doubt standard is in derogation of a defendant’s right to trial by jury and violates due process even if the sentence ultimately imposed falls under the statutorily authorized limit for the crime in question. Blakely clearly shifted the focus away from what the sovereign was legally authorized to impose and directed it toward the real-life consequences of judicial factfinding within the sentencing scheme in question. As the Court stated in Blakely : Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence. Blakely, 542 U.S. at 305 n. 8, 124 S.Ct. at 2588 n. 8. ¶ 15 Returning to the Majority’s distinction and the presumptive rationale underlying that distinction, do the mandatory minimum and enhancement factors found in Pennsylvania’s sentencing scheme have the same practical effect as those under consideration in Blakely and Booker? I believe the answer is yes. I believe that, despite the fact that the time a prisoner may ultimately spend in jail is less definite in Pennsylvania than under the sentencing schemes at issue in Blakely and Booker , it is undeniable that a correlation exists between the minimum sentence imposed and the time the average prisoner spends in jail. Therefore, when a prisoner’s minimum sentence is increased by operation of enhancements or mandatory minimum sentences, or the range of imprisonment is increased by these provisions, his time in prison will be increased as well. ¶ 16 With respect to the ultimate release from prison, the Majority is correct when pointing out that a prisoner in Pennsylvania cannot know precisely when he will be released from prison, as the prisoner’s release is determined by the parole board. Nevertheless, a prisoner in Pennsylvania will know when he will be eligible for parole. In Pennsylvania, a prisoner is eligible for parole upon serving the minimum sentence imposed by the trial court. Recent data indicates that parole requests are granted approximately 60% of the time, 23 and a recent study by Allegheny County of prisoners from that county released from Department of Corrections facilities in 2002 showed that those prisoners served, on average, 75% of their maximum sentence. 24 As such, it is clear that the typical prisoner is released before the expiration of his maximum term. Thus, on average, a sentencing provision which has the practical effect of increasing the range of imprisonment imposed will result in a greater time served for the prisoner. ¶ 17 Additionally, the maximum sentence is not automatically coterminous with the statutory maximum. Rather, the maximum sentence is imposed by the trial court in the exercise of the court’s discretion in conjunction with the sentencing guidelines. The parole board is not authorized to keep a prisoner beyond the maximum sentence imposed by the court, even if that maximum falls under the maximum allowed by law. Thus, while the *589 parole board retains the power to determine the actual release date, that power is limited by the upper range set by the court in the exercise of its discretion. This necessitates a look at the mechanism for imposition of a sentence range in Pennsylvania and past sentencing practice. ¶ 18 With respect to the sentencing court’s setting of a range of imprisonment, while trial courts have the theoretical freedom to impose a minimum sentence up to one-half of the statutorily authorized limits, 25 the truth of the matter is that our law does constrain the exercise of discretion in a fashion not markedly different than the statutes/schemes found in Blakely and Booker . ¶ 19 In Pennsylvania, 42 Pa.C.S. § 9721 provides: b) GENERAL STANDARDS. — In selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). With respect to sentencing guidelines, the sentencing court is obligated to consider the guidelines. While departure is allowed, statutory law requires the court to explain its reasoning for departing from the guidelines on the record. 26 Moreover, our caselaw makes clear that a departure should not be based merely upon the sentencing court’s opinion that the guideline range provides insufficient punishment, but rather, departure should be based upon the conclusion that the conduct underlying the crime in question differed from the conduct typically associated with that crime so as to render the suggested punishment inappropriate for the particularized facts of the case. See Commonwealth v. Walls, 846 A.2d 152 (Pa.Super.2004); Commonwealth v. Gause, 442 Pa.Super. 329 , 659 A.2d 1014 (1995). Lastly, in cases where a sentence is imposed that falls outside the guidelines — both above and below — numerous cases prove that where, after extending due deference to the sentencing court, the reasons offered for the departure do not appear reasonable to this Court, the sentence will be vacated and the case remanded for resen-tencing. See Walls, 846 A.2d at 157 . 27 *590 ¶ 20 Consequently, although perhaps allowing for greater flexibility than those sentencing schemes considered in Blakely and Booker , Pennsylvania’s sentencing scheme has presumptive starting points and constraints on the imposition of sentence just like the schemes under consideration in Blakely and Booker . 28 The conjunction of past experience in sentencing by Pennsylvania judges with the parole *591 practices of the State Board of Probation and Parole indicates that, while theoretically a defendant could be sentenced to the statutory maximum and could serve the entire sentence, the average defendant can expect to receive a minimum sentence within the standard range of the guidelines, or possibly in the aggravated range, and be paroled sometime after reaching eligibility and well before serving the maximum sentence. Therefore, those portions of Pennsylvania’s sentencing scheme that dictate the application of enhancements or mandatory mínimums based upon judicial factfinding clearly have the effect of increasing a prisoner’s stay in jail based upon those judicially found facts extraneous to the verdict, the same as in Blakely and Booker : 29 The present case provides an apt illustration of how mandatory minimums and/or sentencing enhancements lead to greater time spent in jail upon judicial factfinding. ¶ 21 Appellant was convicted of one count of manufacturing marijuana, which is prohibited at 35 P.S. § 780-113. Various subsections of 35 P.S. § 780-113, set forth the various gradings and maximum punishment for violations of the act. The subsection applicable to Appellant provides: Any person who violates clause (12), (14) or (30) of subsection (a) with respect to: (2) Any other controlled substance or counterfeit substance classified in Schedule I, II, or III, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen thousand dollars ($ 15,000), or both. 35 P.S. § 780-113(f). Thus, the offense Appellant was convicted of violating was punishable by imprisonment not exceeding five years. ¶ 22 However, as indicated earlier, barring the application of a mandatory minimum sentence necessitating a different result, the court must set forth a minimum and a maximum term of imprisonment. While the maximum term of imprisonment a judge may impose is limited by the statutory ceiling, the court must impose a minimum term of imprisonment that is no more than half of the maximum sentence imposed. 42 Pa.C.S. § 9756(b). This provision, in effect, creates a ceiling for the minimum sentence as well. Thus, in light of the statutory máximums implicated here, the greatest minimum sentence the court could legally impose would be 30 months’ imprisonment and the greatest minimum/maximum range would be 30 to 60 months’ imprisonment. 30 Based upon *592 the above statistical data, we can presume that had the sentencing court imposed the highest range allowed by law, 30 to 60 months, Appellant would have been released sometime between his 30th and 60th month. ¶ 23 In contrast, application of the mandatory minimum sentence provision in Appellant’s case means that Appellant will spend all 60 months in jail. Thus, barring the almost completely unforeseeable circumstance that Appellant would have been both sentenced to the statutory maximum and denied parole for the entire length of his stay in prison had he been given a non-mandatory sentence, Appellant will spend more time in jail as a result of a judicial finding of fact based upon a preponderance of the evidence standard. Certainly the average defendant exposed to mandatory mínimums will spend increased periods of time in prison due to the application of mandatory minimum sentences. The exact amount of time may not be subject to precise calculation, but it is nonetheless a real and substantial period of time, particularly to the individual sentenced, who will have to spend that time in the state correctional system. In this respect, I fail to see how this very remote possibility that Appellant would have served the same sentence in the absence of the mandatory minimum invalidates the basic premise of Blakely and Booker . ¶ 24 Of course, there is nothing constitutionally infirm about tying greater punishment to the quantities of contraband possessed. However, since additional quantities are having the practical consequence of increasing the defendant’s time in jail, under Blakely and Booker the quantity of drugs can now be deemed to be an element of the crime that must be found by a jury and proven beyond reasonable doubt. In the present case, not only was the key finding, that Appellant possessed at least 51 live plants, made by the court upon a preponderance of the evidence standard, it was done in spite of the jury’s inability to unanimously agree as to this specific fact. The right to trial by jury was designed to protect against exactly this kind of jury nullification. ¶ 25 Lastly, as the Majority sees fit to point out the adverse repercussions to a contrary finding, I feel equally compelled to point out the potential repercussions of the Majority’s holding today. Let me first state that “adverse repercussions” does not constitute a legitimate basis for overriding a constitutional protection. Justice O’Connor made the same argument in Blakely , referencing “disastrous” practical consequences, 542 U.S. at 314 , 124 S.Ct. at 2544 , yet the argument was not seen by the Majority as a legitimate basis for eviscerating a constitutional protection. Why would such an argument carry little weight? Because “significant adverse repercussions” essentially bespeak a factor to be weighed in setting policy and constitutional protections trump such weighing of expediency. Indeed, the repercussion to the Court’s conclusion in Booker was the invalidation and rejection of the mandatory guideline sentencing provisions which were at the heart of the federal sentencing scheme. One could argue that the sentencing scheme in federal courts was thrown into chaos as a result of Booker . Nevertheless, this predictable consequence was not seen as a basis for avoiding the result dictated by a reasonable application of the constitution. Similarly, *593 virtually all landmark cases have come with repercussions. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), meant that the various States and the federal government must supply an indigent defendant with counsel, Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), meant that police officers would be required to provide warnings prior to interrogating prisoners, and Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), meant that cities would incur the costs of integrating schools. ¶ 26 The above notwithstanding, I feel obligated to point out the potential repercussions which could result from the Majority’s analysis. The Majority provides, via its holding, a model whereby the constitutional rights to trial by jury and proof of guilt beyond reasonable doubt can be eviscerated to the point where they are rendered meaningless. Applying the holding of the Majority, the legislature could, if it were so inclined, rewrite the Crimes Code in such a manner as to substantially reduce the number of official crimes in the Crimes Code, while simultaneously enacting a vast array of “sentencing factors.” In this model, the legislature could create general offenses while taking what have been understood since common law days to be elements of crimes — and could also include the many statutory prolifei'ations since — and retitle these elements “sentencing factors.” Of course, these sentencing factors would be within the province of the trial judge and the burden placed upon the Commonwealth with respect to proving a sentencing factor would be by a preponderance of the evidence. ¶ 27 For instance, all offenses involving a physical affront to the person could be classified as “assault” and be defined as the touching of another without license or valid consent which produces pain, bodily injury, embarrassment or mental anguish to the person touched or was committed with the intent of receiving sexual gratification. Assault could be punishable by imprisonment up to life. Within the classification of assault one could find numerous sentencing enhancements and/or mandatory minimum sentences which mirror current offenses. Under this new model, there would no longer be an offense of rape, sexual assault or indecent contact. These traditional crimes would simply be “assaults.” Once a jury returned a verdict of guilty of assault, reflecting a finding that there was a non-consensual touching or an invalid consensual touching that caused pain, bodily injury, embarrassment or mental anguish in the victim or was performed with the intent of providing sexual gratification to the toucher, a “sentencing hearing” would take place in which a judge would determine, upon a preponderance of the evidence, if sentencing enhancement factors were present. First, the court might determine whether a sexual or intimate part of the body was touched. Next the court might determine whether there had been penetration of a type necessary for the former crime of rape, and if so, whether the person touched was incapable of consenting due to (a) mental disability or (b) insufficient age, or whether the touching resulted from (c) threat of forcible compulsion or (d) forcible compulsion. Each one of the above “sentencing factors” would then trigger either a sentencing enhancement to be added to a base sentence or a mandatory minimum sentence. ¶ 28 Since prosecutors have often found it challenging to prove that intercourse occurred as a result of threat of forcible compulsion that would prevent the resistance of a reasonable person, a prosecutor might feel relief in having to prove this sentencing factor by a mere preponderance of the evidence and might welcome *594 needing to convince only the court and not twelve citizens who sometimes bring certain prejudices to the jury box with them. ¶ 29 Similarly challenging, at least on an academic level, is proving intent. Whether it is intent to inflict serious bodily injury, which has proven problematic in aggravated assault cases, or intent to kill, similarly problematic in homicide or attempted homicide cases, under the new model, intent can be relegated to the classification of “sentencing factor” which might trigger a mandatory minimum sentence much greater than the standard sentence for a “simple” assault. ¶ 30 The offense of aggravated assault-DUI and Homicide by Yehicle-DUI could be eliminated and simply replaced with a new DUI law. In this new model, once a jury found the minimal level of impairment necessary to satisfy the statutory elements, the court would take over and find any number of possible enhancement factors. The degree of intoxication might be a sentencing factor as well as whether anyone was endangered by the act, harmed by the act or killed by the act. In this model, causation could also be relegated to the realm of sentencing factor. ¶ 31 Under the new model, the court would impose a minimum sentence consistent with the myriad post-trial fact finding of sentencing factors. For simplicity, the maximum sentence would by default be the maximum allowed by law and, as now, a prisoner would be subject to parole upon the expiration of his “minimum” sentence. Actually, one does not need to strain his/ her imagination too much to envision such a system as the combination of the United States Crimes Code and the Federal Sentencing Guidelines provided a system far along this path with the notable difference being that sentences under the federal system are determinate and prisoner’s are not paroled. 31 In the Majority’s eyes, since the court would be imposing only a minimum date of incarceration and the actual date of release would be set by the parole board, this new model would pass constitutional muster. ¶ 32 If the Pennsylvania legislature, spurred by the Majority’s holding, were to institute a system of administering criminal justice similar to the one described above, would the Majority still contend that this simple distinction would make constitutional a system which so severely depreciated the right to trial by jury and proof beyond reasonable doubt? Would such a model violate the holdings of Blakely and Booker? If the answer to this question is “yes,” then I believe the Majority has reached the wrong conclusion in *595 the present case. Since I believe the correct answer is “yes,” I dissent. . Appellate courts in the following states have found at least some aspects of their *584 sentencing schemes to be violative of Apprendi/Blakely/Booker: New Jersey, State v. Natale, 184 N.J. 458 , 878 A.2d 724 (2005); Indiana, Smylie v. State, 823 N.E.2d 679 (Ind.2005); Minnesota, State v. Shattuck, 689 N.W.2d 785 (Minn.2004); Oregon, State v. Dilts, 337 Or. 645 , 103 P.3d 95 (2004); Washington, State v. Hughes, 154 Wash.2d 118 , 110 P.3d 192 (2005); Colorado, Lopez v. People, 113 P.3d 713 (Colo.2005); and North Carolina, State v. Allen, 359 N.C. 425 , 615 S.E.2d 256 (2005). Additionally, the state of Kansas modified their sentencing schemes in the wake of Apprendi . Kan. Stat. Ann. § 21— 4718(b)(2). . This variability and/or unpredictability has two facets. One facet is the imposition of sentence, which in Pennsylvania has greater variability than many other jurisdictions due to the amount of discretion vested in the trial court. The other facet is release from prison, *585 which is variable because a prisoner’s ultimate release date is entrusted to the Board of Probation and Parole and because a prisoner in Pennsylvania has no right to release upon expiration of the minimum sentence and could, theoretically, be imprisoned until expiration of the maximum sentence imposed at sentencing. . 2005 Annual Report, Pennsylvania Board of Probation and Parole. http:// www.phpp.state.pa. us/pbppinfo/lib/pbppin-fo/pdjpubs/PBPP2005 Annual rpt.pdf. . http://www.county.al iegheny.pa.us/dlts/Jail-Init/OffReentryPl .pdf . 42 Pa.C.S. § 9756(b) provides that in imposing a sentence of total confinement, the court must set forth a minimum and a maximum term of imprisonment. While the maximum term of imprisonment a judge may impose is limited by the statutory ceiling, the court must impose a minimum term of imprisonment that is no more than half of the maximum sentence imposed. . “In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” 42 Pa.C.S. § 9721. . It is also notable that, although theoretically a judge in Pennsylvania could disregard the guideline suggestions and impose a sentence coterminous with the statutory maximum, statistically speaking this has not been the experience in Pennsylvania. According to the 1999 Annual Data Report issued by The Pennsylvania Commission on Sentencing, 72.5% of all sentences imposed were within the standard range and 8.9% of sentences were in the aggravated range. Only 5.1% of all sentences *590 were above the guideline ranges. Sentencing in Pennsylvania 1999: 1999 Annual Data Report, The Pennsylvania Commission on Sentencing. . The idea that the Washington sentencing scheme provides little room for departure from the guidelines is not borne out by the relevant statutory language of the Washington Revised Code §§ 9.94A.120 and 9.94A.390, which were the provisions in effect at the time Blakely was sentenced. Those sections follow: § 9.94A.120. Sentences When a person is convicted of a felony, the court shall impose punishment as provided in this section. (1) Except as authorized in subsections (2), (4), (5), (6), and (8) of this section, the court shall impose a sentence within the sentence range for the offense. (2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard range shall be a determinate sentence. § 9.94A.390. Departures from the guidelines If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4). The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences. (factors omitted). State v. Branch, 129 Wash.2d 635 , 919 P.2d 1228 (1996), is one example where the sentencing court departed from the guidelines. There an exceptional sentence 16 times the maximum of the “standard” sentencing range was upheld. Similar provisions can be found in the United States Code, which reads: Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. 18 U.S.C. § 3553 . If one reads the statutory factors to be considered in imposing sentence, one will see a substantial similarity to the concepts embodied in our own sentencing law. (a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than neces-saiy, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; Id. . Logically speaking, a sentence enhancement necessarily increases a sentence because once the qualifying fact is found, the enhancement is added to the guideline ranges, youth/ school enhancement, 204 Pa.Code § 303.9(c), or a new guideline matrix is implicated, deadly weapon enhancement, 204 Pa.Code § 303.10. Similarly, it cannot be doubted that a mandatory minimum is designed to increase the punishment that would otherwise normally attach by removing the possibility that a lesser sentence would be imposed. If sentences greater than the mandatory minimum amount were routinely imposed, there would be no need for the mandatory minimums. Moreover, a reference to the guidelines with respect to aggravated assault based upon an attempt to cause serious bodily injury demonstrates a typical increase in punishment. Aggravated assault-attempt serious bodily injury has a guideline range of 22-36 months’ imprisonment. However, if the mandatory minimum provisions of 42 Pa.C.S. § 9712 are implicated by committing the crime with a handgun, then the guidelines are overridden and the mandatory minimum of 60 months must be applied. . In all likelihood, because drug offenses are subject to the mandatory minimum provisions of 18 Pa.C.S. § 7508, there is no readily discernible guideline recommendation for the *592 manufacture of marijuana plants. The most closely corresponding guideline range would be possession with intent to deliver marijuana, 1 to 10 pounds. This category has an offense gravity score of 5 and the guideline range is restorative sanctions to 9 months in prison where the prior record score is 0. . For example, in United States v. Cole, 359 F.3d 420 (6th Cir.2004), the two defendants pled guilty to the offenses of kidnapping, assault, and the use of a firearm during a crime of violence. Under the United States Sentencing Guidelines, a lengthy list of potential “offense characteristics,” i.e. sentencing factors, were applicable to the offense of kidnapping, abduction or unlawful restraint. See Cole, 359 F.3d at 423 n. 2, for a list of offense characteristics. However, because the charges stemmed from an incident involving sexual assault, the guidelines directed the court to utilize another set of guidelines if the result was a greater offense level. Similar to the offense of kidnapping the “offense characteristics” for “Criminal Sexual Abuse” required the court to consider a large number of potential factors which could affect the ultimate sentence imposed. Id., at n. 3. Thus, although the court was sentencing on a kidnapping charge, specific judicial findings were made with respect to sexual abuse/assault, a crime to which Cole did not plead guilty. These judicial findings had a direct bearing on the sentence Cole received, but were not found by a jury or, apparently, specifically acknowledged in a guilty plea proceeding. Rather, they were found by the court at the conclusion of a sentencing hearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9540627. Public record. Not legal advice.