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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
____________________________________________


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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