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                          2014 PA Super 289

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
JOSE VARGAS,                            :          No. 1415 EDA 2012
                                        :
                        Appellant       :


         Appeal from the Judgment of Sentence, February 6, 2012,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0001895-2011


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


CONCURRING STATEMENT BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 31, 2014

      I join in the Majority’s decision but write separately to further support

the reasoning of Commonwealth v. Newman.1              In Newman, which I

authored for the en banc court, we determined that the mandatory

minimum sentencing statute, 42 Pa.C.S.A. § 9712.1, was non-severable

pursuant to the reasoning of Alleyne.

      The prime impetus for this result is that without the enforcement arm

of § 9712.1(c), trial courts were without a legislatively sanctioned procedure

for determining how the predicate arm of § 9712.1(a) should be applied.

Clearly, the intent of the Legislature in enacting such mandatory provisions
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was to leave very little discretion with the trial courts in imposing sentence

and to allow for a much lesser burden of proof and production on the

Commonwealth. Following Alleyne, it is this sentencing structure itself that

is no longer workable.

      We took the position in Newman that following Alleyne, the

continuing   viability   of   several   mandatory   minimum   statutes   in   this

Commonwealth was in question and any remedial action was better left to

the legislative process. The Legislature may well determine that the criminal

offense statutes may more appropriately be amended to include the Alleyne

aggravating factors or rewrite the mandatory sentencing statutes to meet

constitutional requirements.      What appears clear following Alleyne is that

any factors required to be determined beyond a reasonable doubt by the

fact-finder can no longer be considered “sentencing factors” within the

rubric of such statutes as involved herein, but rather are elements which will

aggravate the conviction of the offense itself.        Just as the grading of

offenses goes to the conviction and not to sentencing, so too such factors as

possession of a firearm in close proximity to drugs or the amount of the

contraband that the defendant is found in possession of2 or dealing



1
  I respectfully recognize that the Majority’s author did not join in this
rationale but rather joined the Concurring Opinion in Newman that would
have allowed for severance.
2
  I recognize that in this case appellant stipulated to the weight of the
heroin; however, I agree with my learned colleague in dissent that the trial
in this case was pre-Alleyne and that with the higher post-Alleyne


                                        -2-
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contraband in a school zone are now aggravating elements of the offense of

possession and possession with the intent to deliver contraband.     Hence,

Newman’s determination that any remedial action is better left to the

legislative process.



Judges Panella, Donohue, and Lazarus join this Concurring Statement.




standard of proof for the same fact, counsel may well have not entered into
the stipulation. However, once the Legislature has an opportunity to decide
on remedial action, I see no reason why stipulations and guilty pleas should
not have the same effect as always on limiting the Commonwealth’s burden
of production and satisfying its burden of proof.


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