                         [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


                                CONCURRING OPINION


JUSTICE DOUGHERTY                                      DECIDED: February 21, 2018
      I agree with the Opinion Announcing the Judgment of the Court (“OAJC”) that 42

Pa.C.S. §9718(a)(3) (“A person convicted of the following offenses shall be sentenced

to a mandatory term of imprisonment …”) “simply cannot run afoul of a constitutional

rule disapproving judicial fact-finding related to ‘facts that increase mandatory minimum

sentences.’” OAJC, slip op. at 4, quoting Alleyne v. United States, 570 U.S. 99, 116

(2013). The rule established in Alleyne is not violated when judicial fact-finding is not

necessary prior to imposing a mandatory minimum sentence, regardless of whether the

statutory provision at issue is accompanied by a “proof at sentencing” provision like the

one found at 42 Pa.C.S. §9718(c). See OAJC, slip op. at 4. I therefore concur in the

result reached by the OAJC.

      Respectfully, however, I cannot agree with the OAJC’s reasoning distinguishing

the Alleyne analyses of Section 9718(a)(3), at issue in this case, and Section
9718(a)(1), at issue in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). In my view,

the OAJC does not sufficiently cabin the holding in Wolfe and I maintain my position

Wolfe was wrongly decided.        See, e.g., Wolfe, 140 A.3d at 672 (Dougherty, J.,

dissenting) (“I have difficulty upsetting the judgment below without considering the

actual trial and litigation of the matter … this particular defendant was afforded all the

United States Constitution could be said to mandate at his trial”).

       Although Section 9718(a)(1) may violate Alleyne as applied to certain

defendants, “[t]he focus for purposes of Alleyne is not on the sentencing statute, but,

rather, on whether a defendant has been denied his or her right to a trial by jury on the

facts triggering a sentence.” Wolfe, 140 A.3d at 669 (Todd, J., dissenting). Today we

correctly hold appellee’s right to a jury trial was satisfied because judicial fact-finding

was unnecessary, but the same was true in Wolfe. Wolfe was convicted of involuntary

deviate sexual intercourse under 18 Pa.C.S. §3123(a)(7), an element of which is that

the complainant is under sixteen years of age.        Wolfe was then sentenced under

Section 9718(a)(1) which provides for a mandatory minimum sentence of not less than

ten years for those convicted under 18 Pa.C.S. §3123 when the victim is under sixteen

years of age.    This “additional fact” of the age of the victim was found beyond a

reasonable doubt by the jury in Wolfe’s case and thus judicial fact-finding was

unnecessary regardless of the “proof at sentencing” provision found at Section 9718(c).

Pursuant to the OAJC’s analysis of Section 9718(a)(3) in this case, an analysis in which

I join, the Alleyne rule could not have been violated in Wolfe, and in my view, that

decision should be overturned.

       Justice Todd joins Justice Dougherty’s concurring opinion




                          [J-41D-2017] [OAJC: Saylor, C.J.] - 2
