J-S73025-18


                               2019 PA Super 23

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

JOHN ALEXANDER FINNEGAN,

                           Appellant                 No. 648 WDA 2018


        Appeal from the Judgment of Sentence Entered March 13, 2018
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000395-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

OPINION BY BENDER, P.J.E.:                    FILED FEBRUARY 1, 2019

        Appellant, John Alexander Finnegan, appeals from the aggregate

judgment of sentence of 24 to 48 months’ incarceration, imposed after he pled

guilty to manufacturing a controlled substance (Methamphetamine), 35 P.S.

§ 780-113(a)(30), and recklessly endangering another person, 18 Pa.C.S. §

2705.     Appellant solely challenges the legality of a mandatory minimum

sentence imposed in his case pursuant to 35 P.S. § 780-113(k). After careful

review, we affirm.

        The facts underlying Appellant’s convictions are not pertinent to the

issue he raises on appeal. He pled guilty to the above-stated offenses on

January 25, 2018, and was sentenced to the aggregate term stated supra on

March 13, 2018. Appellant thereafter filed a timely motion for reconsideration

of his sentence, which the trial court denied. He then filed a timely notice of
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appeal, and he also timely complied with the court’s order to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The court issued an

opinion on May 30, 2018.

      Herein, Appellant presents the following issue for our review:

      I.    Whether the [t]rial [c]ourt erred in denying [] Appellant’s
            Motion for Reconsideration of sentence wherein [] Appellant
            submit[ted] that his mandatory sentence of 24 to 48 months
            was in contradiction to the Supreme Court’s holding in
            Commonwealth v. D[i]Matteo, 177 A.3d 182 ([Pa.]
            2018)[,] as his sentence under 35 P.S. § 780-113(A)(30)(K)
            required judicial fact[-]finding?

Appellant’s Brief at 4.

      Appellant argues that his mandatory-minimum sentence is invalid, as

the court’s imposing it required judicial fact-finding in contravention of

Alleyne v. United States, 133 S.Ct. 2151 (2013), and our Supreme Court’s

decision in DiMatteo. For the following reasons, we disagree.

      In Alleyne, the United States Supreme Court held that any fact
      that, by law, increases the penalty for a crime must be regarded
      as an element of the offense, and found beyond a reasonable
      doubt by the fact-finder. See Alleyne, 133 S.Ct. at 2163. After
      Alleyne, various mandatory minimum sentencing statutes have
      been held by this Court to be unconstitutional because they
      contain a non-severable, ‘proof at sentencing’ subsection stating
      that the “[t]he provisions of [the statute] shall not be an element
      of the crime[,]” and that “the applicability of [the statute] shall be
      determined at sentencing ... by a preponderance of the evidence.”
      See, e.g., [Commonwealth v.] Newman, 99 A.3d [86,] 90,
      101–102 [(Pa. Super. 2014) (en banc)] (holding that the ‘proof at
      sentencing’ provision contained in 42 Pa.C.S. § 9712.1 is
      unconstitutional in light of Alleyne, and is not severable from the
      remainder of the statute).

                                      ***



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      [Additionally, in Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
      2016),] the [Pennsylvania Supreme] Court struck down the
      mandatory minimum sentencing provision set forth in 42 Pa.C.S.
      § 9718, which also contains the standard ‘proof at sentencing’
      provision. See 42 Pa.C.S. § 9718(c). The Wolfe Court reiterated
      its holding in [Commonwealth v.] Hopkins[, 117 A.3d 247 (Pa.
      2015),] that such provisions “plainly and explicitly require judicial
      fact-finding” and are not severable from the remaining provisions
      of the sentencing statute. Wolfe, 140 A.3d at 660–61, 662–63.
      Further, the Wolfe Court acknowledged that the ‘fact’ triggering
      application of section 9718—i.e., the age of the victim—was also
      an element of the offense for which Wolfe was convicted. Id. at
      661. However, our Supreme Court agreed with Wolfe that,

         under Alleyne, [s]ection 9718 must be treated as creating
         a “distinct and aggravated crime,” Alleyne, … 133 S.Ct. at
         2163; that the statute’s directive for judicial fact-finding
         attaches to that aggravated crime notwithstanding a jury
         verdict; and that sentencing judges are not free to disregard
         such explicit legislative mandates by substituting their own
         procedures. Accordingly, although the jury at [the
         a]ppellee’s trial plainly decided that the victim was under
         sixteen 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
         the Sixth Amendment to the United States Constitution, on
         account of Alleyne. See Alleyne, … 133 S.Ct. at 2163–64
         (disapproving a judicial finding relative to a mandatory
         minimum sentence).

      Id. Accordingly, the Wolfe Court held “that [s]ection 9718 is
      irremediably unconstitutional on its face, non-severable, and
      void.” Id. at 663.

Commonwealth v. Blakney, 152 A.3d 1053, 1055–56 (Pa. Super. 2016)

(footnote omitted).

      Following Wolfe, our Supreme Court granted allowance of appeal in

DiMatteo “to assess what relief, if any, a criminal defendant is entitled to

when he raises an illegal sentencing challenge premised on Alleyne … in a

timely petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-


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9546, when, at the time Alleyne was decided, the defendant’s judgment of

sentence was not yet final.” DiMatteo, 177 A.3d at 183. Notably, the parties

did not dispute that the mandatory-minimum sentencing statute under which

DiMatteo’s sentence had been imposed - 18 Pa.C.S. § 7508 - was

“unconstitutional and illegal … in light of Alleyne and its Pennsylvania

progeny.” Id. at 191 (citing, inter alia, Wolfe, 140 A.3d at 660-61).1 Similar

to   every    other    mandatory-sentencing          statute   struck   down   in   this

Commonwealth following Alleyne, “[s]ection 7508 specifies that its provisions

‘shall not be an element of the crime[,]’ the application of the sentence ‘shall

be determined at sentencing[,]’ and the factual determinations necessary to

impose the sentence are to be found by the sentencing court by a

preponderance of the evidence.”                Id. at 183-84 (quoting 18 Pa.C.S. §

7508(b)).

       In the case sub judice, Appellant contends that the statute under which

his mandatory-minimum sentence was imposed is unconstitutional under

Alleyne, Wolfe, and DiMatteo. That statute reads:

       (k) Any person convicted of manufacture of amphetamine, its
       salts, optical isomers and salts of its optical isomers;
       methamphetamine, its salts, isomers and salts of isomers; or
       phenylacetone and phenyl-2-proponone shall be sentenced to at
       least two years of total confinement without probation, parole or
       work release, notwithstanding any other provision of this act or
       other statute to the contrary.
____________________________________________


1 Section 7508 “prescribes various mandatory minimum sentences for certain
violations of The Controlled Substance, Drug, Device and Cosmetic Act …
predicated on the weight and classification of the controlled substance.”
DiMatteo, 177 A.3d at 183.

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J-S73025-18



35 P.S. § 780-113(k). According to Appellant,

      [t]hough the ruling in DiMatteo did not apply to the statute
      [pursuant to which] [] Appellant was sentenced…, [] Appellant
      would note that said statute still requires judicial fact-finding,
      which the DiMatteo Court deemed unconstitutional pursuant to
      Wolfe; more specifically, the [t]rial [c]ourt in implementing the
      mandatory sentence of two years to which [] Appellant was
      sentenced [was required to] determine [that] [] Appellant was
      convicted of manufacturing one of the following: “amphetamine,
      its salts, optical isomers and salts of its optical isomers;
      methamphetamine, its salts, isomers and salts of isomers; or
      phenylacetone and phenyl-2-propane[;”] hence, judicial fact-
      finding [was] required to implement the mandatory sentence of
      two years, which is unconstitutional per DiMatteo and Wolfe.

Appellant’s Brief at 9.

      Appellant’s argument is unconvincing.     Notably, section 780-113(k)

does not contain the Alleyne-offending language present in the statutes

addressed in Wolfe and DiMatteo.       Additionally, Appellant pled guilty to

manufacturing a controlled substance under section 780-113(a)(30), which

reads:

      (30) Except as authorized by this act, the manufacture, delivery,
      or possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30) (emphasis added). Thus, an element of this offense

is that the person manufactured, delivered, or possessed with the intent to

deliver, a controlled substance. To prove that element, the Commonwealth

must necessarily establish what substance the person possessed, in order to




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J-S73025-18



demonstrate that it is a ‘controlled substance’ as defined by section 780-104

(Schedules of controlled substances).

         Accordingly, it is not the sentencing court that makes a factual finding

regarding what specific controlled substance(s) the defendant possessed for

purposes of applying section 780-113(k). Instead, that determination is a

component of proving the ‘controlled substance’ element of section 780-

113(a)(30). The present case is illustrative of this point, as Appellant pled

guilty     to    manufacturing     the    specific   controlled   substance    of

methamphetamine; thus, it was his plea that triggered application of section

780-113(k), not any factual finding by the sentencing court. See N.T. Plea

Proceeding, 1/25/17, at 16-17. Therefore, Appellant’s mandatory-minimum

sentence under section 780-113(k) does not violate Alleyne.

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2019




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