                         [J-41D-2017] [OAJC:Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                :   No. 86 MAP 2016
                                             :
                    Appellant                :   Appeal from the Order of the Superior
                                             :   Court at No. 2125 MDA 2014 dated July
                                             :   14, 2015, Reconsideration Denied
             v.                              :   September 17, 2015, Vacating and
                                             :   Remanding the Judgment of Sentence
                                             :   of Schuylkill County Court of Common
ANGEL ANTHONY RESTO,                         :   Pleas, Criminal Division, at No. CP-54-
                                             :   CR-0001840-2013 dated November 24,
                    Appellee                 :   2014.
                                             :
                                             :   ARGUED: May 9, 2017


                                DISSENTING OPINION


JUSTICE MUNDY                                            DECIDED: February 21, 2018

      Resto was sentenced pursuant to 42 Pa.C.S. § 9718(a)(3), which imposes a

mandatory minimum sentence for persons convicted of certain offenses including 18

Pa.C.S. § 3121(c), the offense which Resto was found guilty of by a jury. Section

9718(c) of the sentencing statute provides as follows:

             (c) Proof at sentencing.-- the provisions of this section shall
             not be an element of the crime and notice of the provisions
             of this section to the defendant shall not be required prior to
             conviction, but reasonable notice of the Commonwealth’s
             intention to proceed under this section shall be provided
             after conviction and before sentencing. The applicability of
             this section shall be determined at sentencing. The court
             shall consider any evidence presented at trial and shall
             afford the Commonwealth and the defendant an opportunity
             to present any necessary additional evidence and shall
             determine, by a preponderance of the evidence, if this
             section is applicable.
42 Pa.C.S. § 9718(c). This or similar language has been the subject of scrutiny in this

Commonwealth since the decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). I

have maintained my personal view that statutes with the above language may be

applied in certain situations, notwithstanding the language that deems sentencing

enhancing facts as non-elements and directs the sentencing courts to find these non-

elemental facts by a preponderance of the evidence, without running afoul of Alleyne.

However, as a matter of adhering to this Court’s precedent regarding mandatory

minimum sentencing schemes in Pennsylvania, I would conclude Resto’s judgment of

sentence should be vacated and remanded for resentencing. Accordingly, I dissent.

      In Alleyne, the United States Supreme Court held that pursuant to the rights

afforded under the Sixth Amendment to the United States Constitution, any fact which

by law increases the mandatory minimum sentence for a crime is an element of the

offense and therefore must be, inter alia, submitted to a jury and found beyond a

reasonable doubt. Simply put, sentencing statutes may no longer tie the imposition of a

mandatory minimum sentence to a fact found by a sentencing court by a preponderance

of the evidence. Following the Alleyne decision, the courts of this Commonwealth were

tasked with how to reconcile the new rule with a number of similarly-patterned

Pennsylvania sentencing statutes that direct the sentencing court to impose a

mandatory minimum sentence if it finds an operative fact by a preponderance of the

evidence at sentencing. See, e.g., 42 Pa.C.S. § 9713.

      For example, in Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014),

the Superior Court considered the post-Alleyne constitutional viability of 42 Pa.C.S.

§ 9718(a)(3), the sentencing statute at issue in this case. The court concluded the

mandatory minimum sentence could withstand an Alleyne challenge because “the jury

specifically found the element required to impose the mandatory minimum sentence.”




                         [J-41D-2017] [OAJC: Saylor, C.J.] - 2
Matteson, 96 A.3d at 1066. Implicit in the panel’s reasoning in Matteson is the notion

that the statute could be applied without regard to the procedure the Legislature crafted

that required the essential fact be found at sentencing, by a preponderance of the

evidence, and defining the fact as a sentencing factor rather than as an element of the

underlying offense.     See also Commonwealth v. Tobin, 89 A.3d 663, 665 n.1 (Pa.

Super. 2014) (concluding Alleyne was not violated by the imposition of a mandatory

minimum based on the amount of marijuana found on a drug dealer pursuant to 18

Pa.C.S. § 7508(a)(1)(i) where defendant pleaded guilty and admitted to possessing

twenty marijuana plants).     Seemingly, then, the relevant inquiry appeared to center on

whether there was a violation of the Alleyne rule as applied to each defendant, i.e.,

whether it was necessary for the sentencing court to find the operative fact or whether it

had been conceded by the defendant or otherwise found by the jury and not specifically

on the statutorily proscribed procedure at sentencing. However, in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super 2014) (en banc), the Superior Court squarely

addressed whether the legislatively enacted sentencing procedure at 42 Pa.C.S.

§ 9712.1 could be severed from the rest of the statute which articulated the necessary

fact to impose the mandatory minimum sentence.1           The court concluded, “[p]lainly,

1   In relevant part, Section 9712.1 provides:
                (a) Mandatory sentence.-- Any person who is convicted of
                section 13(a)(30) of [35 P.S. § 780-113], known as The
                Controlled Substance, Drug, Device and Cosmetic Act, when
                at the time of the offense the person or the person’s
                accomplice is in physical possession or control of a firearm,
                whether visible, concealed about the person or the person’s
                accomplice or within the actor’s or accomplice’s reach or in
                close proximity to the controlled substance, shall likewise be
                sentenced to a minimum sentence of at least five years of
                total confinement.
                                             ...
(continued…)

                            [J-41D-2017] [OAJC: Saylor, C.J.] - 3
Section 9712.1 can no longer pass constitutional muster” because it requires the

sentencing court to increase the minimum sentence if it finds that a defendant was

dealing drugs while possessing or in close proximity to a firearm. Id. at 98. It continued

that, under the mandates of Alleyne, the fact increasing the minimum sentence, i.e., the

possession of a firearm, must be included in the indictment and found by a jury. Id. In

rejecting the Commonwealth’s position that the constitutionally offensive subsection

could be excised and the remainder of the statute applied if a sentencing jury is

empaneled to find the extra-judicial fact, the Newman Court concluded that such action

would be usurping the role of the Legislature: “[w]e find it is manifestly the province of

the General Assembly to determine what new procedures must be created in order to

impose mandatory minimum sentences in Pennsylvania.” Id. at 102.

         As a member of the en banc panel in Newman, I agreed that Newman’s

sentence was unconstitutional. However, I disagreed with the majority’s holding that the

entire sentencing statute was rendered unconstitutional by Alleyne. See id. at 104

(Mundy, J., concurring). I expressed my view that voiding the statute as a whole was

contrary to the Statutory Construction Act, 1 Pa.C.S. § 1925.2 Specifically, I differed

(…continued)
            (c) Proof at sentencing.-- Provisions of this section shall
            not be an element of the crime, and notice thereof to the
            defendant shall not be required prior to conviction, but
            reasonable notice of the Commonwealth’s intention to
            proceed under this section shall be provided after conviction
            and before sentencing. The applicability of this section shall
            be determined at sentencing. The court shall consider any
            evidence presented at trial and shall afford the
            Commonwealth and the defendant an opportunity to present
            any necessary additional evidence and shall determine, by a
            preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1
2   Section 1925 provides:
(continued…)

                             [J-41D-2017] [OAJC: Saylor, C.J.] - 4
with the majority’s reasoning that there was no constitutional way to apply the

mandatory minimum sentence pursuant Section 9712.1 once the “proof at sentencing

provision” was stricken:

              Although [Section 9712.1 creates] a new aggravated
              offense, it does not follow that there is “no mechanism” for its
              application in future cases. 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 [possession with intent to deliver a
              controlled substance], 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 consistent with the
              jury’s verdict, as required by the Sixth Amendment. . . .
              Section 9712.1(a) gives the elements of the aggravated
              offense and Alleyne and pre-existing procedure provides the
              method of implementation, a jury verdict with proof beyond a
              reasonable doubt. Therefore, no special mechanism is
              required.

Id. at 105.

(…continued)
                    § 1925. Constitutional construction of statutes
              The provisions of every statute shall be severable. If any
              provision of any statute or the application thereof to any
              person or circumstance is held invalid, the remainder of the
              statute, and the application of such provision to other
              persons or circumstances, shall not be affected thereby,
              unless the court finds that the valid provisions of the statute
              are so 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 void one; or unless the
              court finds that the remaining valid provisions, standing
              alone, are incomplete and are incapable of being executed
              in accordance with the legislative intent.

1 Pa.C.S. § 1925.




                           [J-41D-2017] [OAJC: Saylor, C.J.] - 5
      In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), this Court provided

further guidance on the issue of the severability of a constitutionally infirm, but

legislatively mandated, sentencing procedure, where the sentencing judge is assigned

the role of factfinder at sentencing.    Our analysis led us to decidedly endorse the

severance rationale employed in Newman. Hopkins was convicted of possession with

intent to deliver and sentenced to a mandatory minimum sentence of two years’

imprisonment pursuant to 42 Pa.C.S. § 6317(a), based on a judicial finding that the drug

offense occurred within 1,000 feet of a school.       As with other sentencing statutes

rendered void under Alleyne and Newman, Section 6317 provided “[t]he provisions of

this section shall not be an element of the crime. . . . The court shall consider evidence

presented at trial, shall afford the Commonwealth and the defendant an opportunity to

present any necessary additional evidence and shall determine by a preponderance of

the evidence if this section is applicable.” 18 Pa.C.S. § 6317(b).

      Recognizing that the Statutory Construction Act creates a presumption that

statutes are severable and shall be enforced unless the valid provisions of the statute

are inseparably connected with and dependent upon the void provisions, this Court

examined each subsection of the statute to ascertain which provisions were void and

whether the mandatory minimum could be applied without consideration of the portions

that ran afoul of Alleyne. This Court held that the provisions specifying the proximity of

the drug transaction to the school and the age of the defendant did not offend Alleyne;

however, the remainder of the statute, given the Legislature’s clear intent that it was a

sentencing statute, was invalid and could not be severed.

             In sum, as detailed above, we find that numerous provisions
             of Section 6317 are unconstitutional in light of the United
             States Supreme Court decision in Alleyne. After Alleyne,
             these aspects of the statute--that the provisions are declared
             not to be elements of the offense, that notice is not required
             prior to conviction, that factfinding is conducted at


                          [J-41D-2017] [OAJC: Saylor, C.J.] - 6
             sentencing, that the sentencing court performs factfinding,
             that the applicable standard is preponderance of the
             evidence, and that the Commonwealth has the right to
             appeal where the imposed sentence was found to be in
             violation of the statute--are now infirm. . . .

             [T]he General Assembly has unambiguously expressed its
             intent regarding the nature of this mandatory minimum
             sentencing statute: it is a sentencing statute. . . . Yet,
             virtually every provision of Section 6317 enacted by the
             legislature to effectuate this intent runs afoul of the notice,
             jury trial, burden of proof, and post-trial rights of the accused
             after Alleyne. These provisions are elaborate, express, and
             detailed, and are no mere add ons, but, rather, are
             prominent and central features of the statute.                 In
             contemplating the significant rights that come with the United
             States Supreme Court’s marked transformation of
             sentencing factors into elements of a new aggravated
             offense, and the resulting evisceration of essential aspects
             of Section 6317, we find that the unoffending provisions of
             this statute--the proximity and age requirements--standing
             alone, are incomplete and incapable of being executed in
             accordance with legislative intent. 1 Pa.C.S. § 1925. By
             operation of Alleyne, Section 6317 has been stripped of all
             features that allow it to function as a sentencing statute.


Hopkins, 117 A.2d at 259-60 (footnote and some citations omitted; emphasis in

original).

       This Court again confronted the effect of Alleyne on a mandatory minimum

sentencing statute in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).3 Wolfe was

convicted of involuntary deviate sexual intercourse with a complainant who is less than

16 years of age, 18 Pa.C.S. § 3123(a)(7), and received a mandatory minimum sentence

3 Wolfe came to this Court following the Commonwealth’s appeal from the published
Superior Court decision in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014).
Writing for the panel of the Superior Court, I concluded Wolfe was entitled to
resentencing based on the decision in Newman. I made clear that despite my
disagreement with Newman’s severability analysis, “it is binding on the [Superior Court]
and must be applied in a principled manner in all future cases unless reversed by the
Supreme Court.” Wolfe, 106 A.2d at 803 n. 4.



                         [J-41D-2017] [OAJC: Saylor, C.J.] - 7
pursuant to Section 9718(a), which provides that “[a] person convicted of [18 Pa.C.S. §

3123] when the victim is less than 16 years of age shall be sentenced to” a mandatory

term of not less than ten years. See 42 Pa.C.S. § 9718(a)(1) (emphasis added). This

presented an incongruity not faced in Newman or Hopkins because, in each of these

cases, the extra-judicial fact that the sentencing court was required to consider was not

subsumed within the elements of the underlying offense. However, pursuant to Section

9718, despite subsection (c)’s directive that “provisions of this section shall not be an

element of the crime” the requisite fact necessary to impose the mandatory minimum

sentence, i.e., the age of the victim, was included as an element of the crime for which

Wolfe was being sentenced.          Compare 42 Pa.C.S. § 9718(a)(1) with 18 Pa.C.S.

§ 3123(a)(7).     Accordingly, the Commonwealth posited, broadly, that there was no

violation of Alleyne in the first instance because Section 9718(a) standing alone, could

operate to impose the sentence without consideration of the other violative provisions

based on the triggering fact being an element of the offense. We disagreed.

                [W]e reaffirm our position in Hopkins in all material respects
                and conclude that it applies here. [W]e differ with the
                Commonwealth’s position that Section 9718 does not require
                judicial fact-finding and that Section 9718(a), standing alone,
                is all that is required to impose the mandatory minimum
                sentence. To the contrary, Section 9718 does plainly and
                explicitly require judicial fact-finding in its subsection (c).
                See 42 Pa.C.S. 9718(c) (“The applicability of this section
                shall be determined at sentencing . . . by a preponderance of
                the evidence.”). Moreover, since subsection (c) is integral to
                the statute, Section 9718(a) does not stand alone. See id.

                Similarly, we regard the suggestions by the Commonwealth
                and its amicus that Section 9718(c) can be deemed
                preempted, moot, dormant, or irrelevant--or can be
                otherwise disregarded or overlooked--to be tantamount to
                severance. The severance doctrine is the appropriate
                mechanism for testing whether some provisions of an
                otherwise unconstitutional statute may stand. See, e.g.
                Hopkins¸ 117 A.3d at 259-262 (applying the severance


                            [J-41D-2017] [OAJC: Saylor, C.J.] - 8
              doctrine in determining “whether the statute can survive
              without [unconstitutionally] invalid provisions”). Accordingly,
              in our considered judgment, Section 9718 rises or falls
              based on the application of such principles, and, based on
              their application in Hopkins, it is the latter outcome which
              must prevail.
Wolfe, 140 A.3d at 660-61. Moreover, we noted that a sentence based on a statute

found to be non-severable and unconstitutional is void. Id. at 661. We explained the

fact that the jury at Wolfe’s trial found the victim to be less than 16 years of age did not

alter the procedure in place to impose the mandatory minimum sentence: “although the

jury at [Wolfe’s] trial plainly decided that the victim was under 16 years of age, the

sentencing court was bound to make its own determination at sentencing, see 42

Pa.C.S. § 9718(c), but it could not do so in a manner consistent with Alleyne.” Id. The

Court held that “Section 9718 is irremediably unconstitutional on its face, non-severable,

and void.” Id. at 663.

       This Court granted review in this matter to revisit the constitutionality of Section

9718. In my view, the answer has been foreshadowed by the Hopkins decision and

unequivocally answered by Wolfe. Notwithstanding the facial absurdity of deeming a

conviction for which one is being sentenced as an extra-judicial fact, this Court has

declared “Section 9718 does plainly and explicitly require judicial fact-finding in its

subsection (c). . . . Moreover, since subsection (c) is integral to the statute, Section

9718(a) does not stand alone.” Id. at 660-61 (emphasis added).

       The Opinion Announcing the Judgment of the Court (“OAJC”) cannot be

reconciled with the jurisprudence established in Hopkins and Wolfe. Those decisions

ground their analyses in principles of severance, highlighting, for instance, the

legislature’s apparent intent in crafting the schemes and the prominence of the relevant

subsection delineating the proof-at-sentencing procedure. See Hopkins, 117 A.2d at

259; Wolfe, 140 A.3d at 660-61.         Because of the Court’s narrow focus on the



                          [J-41D-2017] [OAJC: Saylor, C.J.] - 9
severability of the offending subsection, the Court has somewhat divorced itself from the

broader and foundational question of whether the requirements of Alleyne were met and

instead held as a matter of Pennsylvania’s severability jurisprudence that the statutes

were void. Cf. Wolfe, 140 A.3d 666-67 (Todd, J., dissenting) (disagreeing that Wolfe’s

sentence could be unconstitutional where the operative fact was an element of the

underlying offense because he “received the benefit of every constitutional right

recognized by the high court in Alleyne.”).

       Writing on a clean slate, I would hold Resto is not entitled to relief, just as I have

maintained that sentencing statutes are severable and the relevant inquiry is whether

the mandates of Alleyne have been satisfied. See Newman, 99 A.3d at 104-05 (Mundy,

J., concurring); see also Commonwealth v. Fennel, 105 A.3d 13, 18 n. 3 (Pa. Super.

2014); Commonwealth v. Cardwell, 105 A.3d 748, 752 n. 2 (Pa. Super. 2014).

However, the slate is not clean, and this Court has unambiguously held that there are

no set of circumstances under which these sentencing statutes may be applied in this

Commonwealth.

       The OAJC posits that a conviction returned by a jury “is not the same as an

aggravating fact.”    OAJC at 4.       Further, that the conviction itself serves as “a

contemporaneous jury determination” and therefore the Alleyne concern of facts

determined at sentencing is not present. Id. It then concludes that the presumption of

severability embodied in the Statutory Construction Act remains operative for this

discrete subsection. Id. at 5. Respectfully, when read with Wolfe, I agree with my

concurring colleagues that these points are distinctions without any meaningful

difference.   See Justice Dougherty’s Concurring Opinion at 1-2; Justice Todd’s

Concurring Opinion at 1; 9-13.




                          [J-41D-2017] [OAJC: Saylor, C.J.] - 10
      Directly addressing the recent decision from this Court in Wolfe, which declared

Section 9718 void on its face, the OAJC suggests it employed “loose language” without

fully considering the operation of Section 9718(a)(3) and further implying that language

not specifically tailored to Section 9718(a)(1) should not be closely considered because

judicial-drafting is frequently done without consideration of its consequences. Id. at 7;

see id. at 7 n. 3. The suggestion that the specific and clear holding of Wolfe was a

result of some failure of this Court to foresee how it may be applied in future cases is

belied by the decision itself. Indeed, from a dissenting posture, Justice Todd specifically

noted that convictions themselves serve as the predicate fact for operation of the

mandatory minimum. Wolfe, 140 A.3d 651, 665 n. 3 (Todd, J., dissenting). The Court

nonetheless determined that severability principles precluded the imposition of any

mandatory minimum sentence under Section 9718.              Plainly, the same result is

compelled here.

      The Wolfe Court, following the decision in Hopkins, held that the procedural

mandates of Section 9718 are so interwoven with the substantive provisions as to be

non-severable and facially unconstitutional. Wolfe, 140 A.3d at 663. Furthermore, this

Court recently acknowledged that any mandatory sentencing procedures fashioned in

this manner are no longer valid in Pennsylvania.

             As that sentencing provision [42 Pa.C.S. § 9712.1] has
             been rendered unconstitutional on its face by Hopkins and
             Wolfe, it is as if that statutory authority never existed. See
             Wolfe, 140 A.3d at 661 (quoting 16 C.J.S. Constitutional Law
             § 265 (2016) (“[A]n unconstitutional, non-severable statute is
             ‘not law, has no existence, is a nullity, or has no force or
             effect or is inoperative.’”).

Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016).
      In my judgment, applying the state law principles of severance to Section 9718

as this Court has in Hopkins and Wolfe, there is no statutory authority to impose the



                         [J-41D-2017] [OAJC: Saylor, C.J.] - 11
sentence.4 Thus, I would conclude the sentence is illegal and was properly vacated.

See Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006).

Accordingly, I dissent.




4 As noted throughout, since the courts began grappling with Alleyne-premised
challenges, I have been of the view that as long as the factfinder decides the predicate
fact beyond a reasonable doubt, a sentencing court may impose a mandatory minimum
sentence. However, I have equally recognized the importance of applying legal
precedent in a principled and even manner. In my judgment, because the bench and
the bar rely on this Court to provide clear guidance on legal issues, we should strive to
adhere to the doctrine of stare decisis. See Stilp v. Commonwealth, 905 A.2d 918,
966–67 (Pa. 2006).




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