J-E01002-14


                              2014 PA Super 178

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAMES NEWMAN

                         Appellant                  No. 1980 EDA 2012


           Appeal from the Judgment of Sentence June 13, 2012
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0000068-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
        and OLSON, J.

CONCURRING OPINION BY MUNDY, J.:                  FILED AUGUST 20, 2014

      I join the Majority insofar that it decides that an issue under Alleyne

v. United States, 133 S. Ct. 2151 (2013), pertains to the legality of the

sentence and may be raised sua sponte. I further agree that given Alleyne

                                      Commonwealth v. Hanson, 82 A.3d

1023 (Pa. 2013), the error in this case was not harmless and resentencing is



request for a remand to empanel a second sentencing jury. However, I part

company with the Majority in its treatment of Section 9712.1 in that it

declares the entire statute unconstitutional in light of Alleyne. Therefore, I

respectfully concur in the result.
J-E01002-14


     As the Majority aptly notes, the Statutory Construction Act addresses

severability. See 1 Pa.C.S.A. § 1925. Our Supreme Court recently held that

                creates the presumption that the provisions of every statute

                  Robinson Twp., Washington Cnty. v. Commonwealth,

83 A.3d 901, 988 (Pa. 2013) (plurality). Alleyne is an extension of the line

of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). In

Alleyne                           facts that increase mandatory minimum



doubt.    Alleyne, supra at 2163.    As the Majority itself concludes, these

                                                                    me and

the fact triggering the mandatory minimum sentence together constitute a

new, aggravated crime, each element of which must be submitted to the

         Id. at 2161.

     In Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en

banc), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014), this Court

confronted another application of Section 9712.1 after Alleyne was decided.



evidence in the instant case established that one firearm was located in the

same glove compartment as the drugs and another handgun was located on

the passenger-                                                  Id. at 121.

However, before arriving at that conclusion, the Watley Court took a survey

of Alleyne and its effect on mandatory minimum statutes in this


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Commonwealth.        Specifically, Watley noted that only Section 9712.1(c) is

unconstitutional in light of Alleyne.

              The Alleyne
              mandatory minimum sentencing statutes that do not
              pertain to prior convictions constitutionally infirm
              insofar as they permit a judge to automatically

              preponderance of the evidence standard.4
              4
                See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.
              § 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.
              § 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.
              § 7508(b); 18 Pa.C.S. § 6317(b).

Id. at 117 (emphasis added; other footnote omitted). However, in the case

sub judice, the Majority goes against Watley, and in my view beyond

Alleyne, and strikes all of Section 9712.1.1 The Majority concludes that the




Opinion at 28. I cannot agree.

       Applying Alleyne to this case, the effect is to combine the PWID

conviction in this case, along with the element at Section 9712.1(a), to
____________________________________________
1
                                                               Watley is
mere dicta. See Majority Opinion at 27 n.9. The statement of Alleyne
effect on mandatory minimum sentencing statutes in Pennsylvania is
essential to the judgment of the Watley Court, because if Section 9712.1

to be vacated as there would be no statutory authorization for his mandatory
minimum sentence. See, e.g., Commonwealth v. Hopkins, 67 A.3d 817,

particular sentence, that sentence is illega
appeal denied, 78 A.3d 1090 (Pa. 2013).



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                                          Id.    Although this is a new aggravated



future cases.      Id.    To the contrary, Alleyne has already specified the

mechanism for such an application.              The jury should be instructed on the

elements of the core crime, in this case PWID, and the aggravated offense,

and the factfinder is free to find a defendant guilty or not guilty of the core

and/or the aggravated offense beyond a reasonable doubt as required by the

Sixth Amendment. Thereafter, the trial court shall sentence the defendant



See generally

                                                                            offenses

contained within the Crimes Code, Motor Vehicle Code, and the Controlled

Substance, Drug, Device and Cosmetic Act do not generally specify any

mechanism for how the elements of those offenses shall be found. In my

view, there is no practical reason why the same process for a new

aggravated offense cannot be followed.2                Section 9712.1(a) gives the


____________________________________________
2
  I certainly agree the General Assembly is free to legislatively repeal
Section 9712.1 altogether if it wished to do so, or move the same to the
Crimes Code or the Controlled Substance, Drug, Device and Cosmetic Act.
However, I do not think it is entirely clear that the General Assembly would

aggravated offenses under Apprendi and Alleyne. It is axiomatic that our
Constitution bestows upon our Supreme Court, not the General Assembly,
(Footnote Continued Next Page)


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elements of the aggravated offense and Alleyne and pre-existing procedure

provides the method for implementation, a jury verdict with proof beyond a

reasonable doubt. Therefore, no special mechanism is required.

      Neither the Federal nor the Pennsylvania Constitution prohibits the

General Assembly from enacting mandatory minimum sentences, or as

Alleyne states, aggravated offenses.              Alleyne merely requires that the

element for said offense be submitted to the jury and found beyond a

reasonable doubt. Because Section 9712.1(c) states the contrary, it cannot

be constitutionally applied going forward, as this Court noted in Watley.

However, by voiding all of Section 9712.1, including Subsection (a) which

authorizes the offense, the Majority unnecessarily deprives the General




PWID alone.

      The Majority further argues that all of Section 9712.1 must be stricken




Construction Act imposes a higher burden to overcome the presumption of

severa                                                                         so
                       _______________________
(Footnote Continued)

the exclusive power to engage in rulemaking for our courts. See generally
                                      [t]he Supreme Court shall have the
power to prescribe general rules governing practice, procedure and the




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essentially and inseparably connected with, and so depend upon, the void

provision or application, that it cannot be presumed the General

Assembly would have enacted the remaining valid provisions without the




                                                         Alleyne purposes,

merely states the burden of proof and that it shall be found by the

sentencing judge.3 Id. As I have described above, pre-existing procedure

and Alleyne specify that the burden of proof shall be beyond a reasonable

doubt and it shall be submitted to the jury. Subsection (a), which only gives

the element for the aggravated offense, can therefore be severed from the

now-unconstitutional burden of proof at Subsection (c). However, even if I

could agree with the Majority that Subsections (a) and (c) could be

connected, I cannot conclude that the General Assembly would want those



it can be found by a judge by a preponderance, but not if the element is to

be found by a jury beyond a reasonable doubt.        Therefore, in my view,




____________________________________________
3

9712.1 unconstitutional, his argument as to Alleyne limits itself to the
                                     42 Pa.C.S. § 9712.1(c) is contrary
                                    Alleyne
(emphasis in original).



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9712.1 in its entirety is contrary to the Statutory Construction Act, Watley,

and beyond the scope of Alleyne

only Section 9712.1(c) is unconstitutional consistent with Alleyne and

Watley. Accordingly, I respectfully concur in the result only.




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