J-A26024-14

                              2014 PA Super 288

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
       Appellee

                     v.

MATHEW BRYAN WOLFE

       Appellant                                     No. 1962 MDA 2013


            Appeal from the Judgment of Sentence October 1, 2013
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005791-2012


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

CONCURRING OPINION BY BOWES, J.:                 FILED DECEMBER 24, 2014

       Like the learned author of the majority opinion, I believe that this

Court’s decisions, relative to severability, in Commonwealth v. Newman,

99 A.3d 86 (Pa.Super. 2014) (en banc), and Commonwealth v. Valentine,

2014 PA Super 220, are erroneous.         See Newman, supra (Mundy, J.,

concurring). I have more fully explained my reasons for my disagreement

with those decisions in my concurring opinion in Commonwealth v. Bizzel,

2014 PA Super 267 (Bowes, J., concurring). I also concur in the result in

this case because I believe that those cases cannot be distinguished in a

principled manner, although I am extremely hesitant to extend Newman

and Valentine absent adequate briefing.1




1
    Neither party addresses the issue upon which the majority affords relief.
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      In Bizzel, I opined that the Newman Court incorrectly analyzed the

legislative intent aspect of the severability test. Specifically, the Newman

majority failed to view the inquiry through the eyes of the legislature had it

known that it was unconstitutional for a judge to determine facts that trigger

a mandatory minimum sentence based on a preponderance of the evidence

standard.   See Annenberg v. Commonwealth, 757 A.2d 338, 347 (Pa.

2000); see also United States v. Booker, 543 U.S. 220, 246 (2005).

Instead, the Newman Court focused on what the legislature intended in

passing the unconstitutional version of the statute. This approach was, in

light of established precedent, plain error.

      For reasons detailed in my Bizzel concurrence, which I will not repeat

herein, I believe that the burden of proof provision of § 9178 is severable

from the remainder of the statute.        Indeed, in that case I specifically

referenced § 9178 and opined:

            Pointedly, certain Pennsylvania mandatory statutes, as
      applied, are unaffected by Alleyne [v. United States, 133 S.Ct.
      2151 (2013),] despite their burden of proof provisions running
      afoul of that decision. For example, 42 Pa.C.S. § 9718 applies
      mandatory sentences based on the youth of the victim. In
      certain instances, however, the age of the victim is already
      included as an element of the crime, specifically with regard to
      various sex offenses. In those situations, there should be no
      impediment to sentencing the defendant under the mandatory
      sentence.

Bizzel, supra at __ (Bowes, J., concurring) (citing Commonwealth v.

Matteson, 96 A.3d 1064 (Pa.Super. 2014)).



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      Setting aside the issue of severability, it is apparent that the jury

determined the essential facts that aggravated Appellant’s sentence.       The

sentence in this case is simply not unconstitutional under Alleyne since the

jury unequivocally found the fact triggering the mandatory minimum beyond

a reasonable doubt since it was expressly included as an element of the

offense. In this regard, the aggravating fact was included as an element of

the charged offense unlike Valentine, where the Commonwealth asked for

additional instructions to the jury relative to the facts invoking the

mandatory minimum.         Although this type of procedure is not new to

Pennsylvania and has frequently been used in the DUI context to avoid

Apprendi     v.   New      Jersey,   530   U.S.   466   (2000)   issues,   see

Commonwealth v. Mobley, 14 A.3d 887, 893-894 (Pa.Super. 2011), the

Valentine Court rejected that procedure based on the reasoning of

Newman.

      While the procedure rejected in Valentine was not in play here, it is a

distinction without a legal difference that, in this case, the triggering fact

was already an element of the offense and in Valentine it was not. In both

situations, the jury determined the fact beyond a reasonable doubt, but the

statute under which the defendants were sentenced is, under Newman,

unconstitutionally void.

      Consistent with my views in Bizzel, absent Newman and Valentine,

I would find that “where the fact-finder’s findings already encompass the


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necessary facts needed to subject a defendant to a mandatory minimum

sentence, or the facts have been stipulated too, I would find any non-

compliance with Alleyne to be harmless.”        Bizzel, supra at __ (citing

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

Matteson, supra; United States v. Cotton, 535 U.S. 625 (2002)

(Apprendi violation harmless); United States v. King, 751 F.3d 1268,

1279 (11th Cir. 2014) (Alleyne violation harmless); United States v.

Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v. Mack, 729

F.3d 594, (6th Cir. 2013) (same).

     Indeed, even absent the mandatory sentencing statute, Appellant

could unequivocally have been sentenced to the period of incarceration

provided in this case.    This is not a situation where the court lacked

statutory or constitutional authority for its sentence.2 Nonetheless, this was


2
    I recognize that in Commonwealth v. Foster, 960 A.2d 160 (Pa.Super.
2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), a decision I authored, this
Court did not find dispositive, on the issue of whether the claim was a
legality of sentence question, the fact that the defendant could be sentenced
to the same period of incarceration absent the mandatory sentencing
statute. Unlike Foster, where the sentence unequivocally violated the
Pennsylvania Supreme Court’s pronouncement in Commonwealth v.
Dickson, 918 A.2d 95 (Pa. 2007), this sentence does not violate Alleyne v.
United States, 133 S.Ct. 2151 (2013). I have more recently expressed
reservations regarding invocation of the illegal sentencing paradigm outside
of settled constructs. I have frequently commented on the difficulties of this
Court and our Supreme Court in agreeing upon a settled definition of an
illegal sentencing claim. Commonwealth v. Tobin, 89 A.3d 663 (Pa.Super.
2014); Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en
banc). I share the sentiments of the learned Justice Thomas Saylor that
there is some flexibility in whether a sentence is illegal and believe careful


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also true in Valentine, where the defendant’s sentence could have been

imposed under differing statutory authority.

     I write further to note that I disagree with the learned majority insofar

as its opinion can be read to enlarge the illegal sentencing paradigm to

encompass all claims regarding the severability of a sentencing statute. I

acknowledge that numerous cases from this Court, including an opinion

which I authored, see Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.

2013) (en banc), have held that Alleyne issues implicate the legality of

sentence construct.    See also Newman, supra; Commonwealth v.

Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Thompson,

93 A.3d 478 (Pa.Super. 2014); Matteson, supra; Commonwealth v.

Munday, 78 A.3d 661 (Pa.Super. 2013). These cases have offered differing

rationales for why the issue presents an illegal sentencing question. My own

view was premised on prior precedent that challenges to mandatory

minimum statutes, even where there exists other statutory authority for the

sentence, have been considered illegal sentencing questions. See Watley,

supra.

     Other cases have analogized Alleyne with Apprendi, see Newman,

supra; Munday, supra, although Apprendi claims fit within the agreed


consideration on an issue by issue basis is warranted to determine whether a
sentencing issue raises an unlawful sentence per se. See Foster, 17 A.3d
355-356 (Saylor, J., concurring). If I were writing on a clean slate, I would
be hesitant to hold that every issue that implicates a mandatory minimum
sentencing statute is automatically an illegal sentencing claim.


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upon illegal sentencing category of sentences that exceed the statutory

maximum while Alleyne does not. Perhaps we should revisit the question

to clarify.   Of course, our Supreme Court is currently considering whether

Alleyne       claims   are   non-waivable    legality   of   sentence    issues.

Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014).

      Reading decisions from this Court that have ruled that mandatory

minimum sentencing statutes that violate Alleyne are both unconstitutional

and non-severable in combination with precedent establishing that Alleyne-

styled claims are legality of sentence questions, I agree the precise

severability issue herein implicates illegal sentencing review. Further, in light

of Valentine, where the defendant raised the severability argument for the

first time on appeal, I am cognizant that the issue in this case is not subject

to waiver on the basis that it was not leveled below. However, I add that

absent adequate briefing, our Supreme Court has declined to sua sponte

address complex illegal sentencing questions. Commonwealth v. Briggs,

12 A.3d 291, 344 (Pa. 2011) (declining to review Eighth Amendment and

Article I, § 13 claims due to inadequate briefing); see also Commonwealth

v. Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (declining to address

legality of sentence question where issue was not included in petition for

allowance of appeal or original brief).

      Appellant has not maintained that his sentence is illegal because

§ 9718 is unconstitutional or that the burden of proof section of that statute


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is not severable.        In my view, the unconstitutionality of an entire statute,

i.e., whether it is non-severable, must ordinarily be argued and litigated to

entitle a defendant to relief.          Phrased differently, the severability of a

sentencing statute is not automatically a non-waivable illegal sentencing

challenge.   To put this in context, I note that compelling arguments have

been made that an Alleyne-type rationale should apply to sentencing

statutes involving prior convictions.            Apprendi, supra (Thomas, J.,

concurring); Harris v. United States, 536 U.S. 545 (2002) (Thomas, J.,

dissenting); Almendarez–Torres v. United States, 523 U.S. 224 (1998)

(Scalia, J., dissenting) (opining that where prior convictions result in a

sentence     that    otherwise     exceeds    the    statutory   maximum      a   jury

determination       of   the   prior   convictions   is   required);   but   compare

Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004); see also Aponte,

supra (Saylor, J., concurring).

     This Court, however, does not sua sponte raise and address whether

such statutes are unconstitutional in their entirety absent an argument by

the defendant.           Pointedly, in Watley, supra, where we sua sponte

discussed and rejected an Alleyne question, we did not discuss severability

as that issue was simply not raised or argued. Since this issue has not been

adequately developed by Appellant, and the Commonwealth has not been

provided an opportunity to respond, I would recommend en banc review to




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permit the Commonwealth to properly brief the important questions before

this Court and reconsider Valentine and Newman.




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