J-S33003-17

                                  2017 PA Super 189

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JESSIE L. KLINE, SR.,

                            Appellant                  No. 1766 MDA 2016


       Appeal from the Judgment of Sentence Entered September 1, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0006395-2015


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                               FILED JUNE 16, 2017

        Appellant, Jessie L. Kline, Sr., appeals from the judgment of sentence

of an aggregate term of 2-4 years’ incarceration, and 5 years’ consecutive

probation, following his conviction for violating provisions of the Solid Waste

Management Act (“SWMA” or “the Act”), 35 P.S. § 6018.101 et seq.

Appellant’s violation of Section 6018.401(a) (“Section 401(a)”) of the SWMA

triggered a mandatory minimum sentence of 2 years’ incarceration, pursuant

to Section 6018.606(f) (“Section 606(f)”). Appellant contends that portion

of his sentence is illegal under the principles set forth in Alleyne v. United

States, 133 S.Ct. 2151 (2013). After careful review, we affirm.

        The trial court summarized the factual history of this case as follows:

              This case raises issues about hazardous material stored by
        Appellant on his property. Commonwealth witness, Mr. Noah
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S33003-17


        Niedererr, testified that he conducted inspections of Appellant's
        property, Salvage Management, Inc. He stated that he saw
        multiple 55-gallon drums, piles of tires, and automotive fuel
        tanks in various sections of the property.        Mr. Niedererr
        commenced the inspections in November 2010 and continued
        them until June 2015. Further, he elaborated that after multiple
        inspections, samples were taken from Appellant's property and
        Mr. Scott Hoy, Commonwealth's expert in flash point analysis,
        later confirmed that the samples that were tested were in fact
        hazardous materials.

              Not only did Mr. Niedererr testify about the condition of
        Appellant's property, he also stated that there was a Consent
        Order and Agreement ("COA") between Appellant and the
        Pennsylvania DEP[1] because there were ongoing compliance
        issues with his Facility. Specifically, he also stated that per the
        COA, Appellant was required to remove tires and other waste
        from his property and make a notation of the same to the
        Department; which he never did. Furthermore, he testified that
        he conducted numerous inspections upon Appellant's property
        between 2010-14, yet there were not a lot of changes or waste
        removal undertaken by the Appellant. Also, while conducting an
        inspection in May 2014, some electronic waste was found on
        Appellant's property resulting in the inspections beginning in
        September 2014 becoming monthly inspections.

              Thereafter, Mr. Niedererr testified that there was another
        COA between Appellant and the Department in July 2014, which
        encapsulated almost all things enumerated in the 2010 COA, but
        Appellant did not comply with the latter either. Due to non-
        compliance with the new COA, the Appellant was held in
        contempt of court by the Commonwealth Court on August 27,
        2015.      Commonwealth's witness, Mr. Anthony Martinelli,
        Environmental     Group     Manager    with   DEP,   Bureau   of
        Investigations, testified that the multiple drums found on
        Appellant's property had hay around them and that he
        discovered leaking and staining into the hay. As stated above,
        Mr. Scott Hoy, Commonwealth's expert in flash point analysis,
        later confirmed that the samples that were taken on February
        12, 2013, were in fact hazardous materials because they failed
        to pass the flash point test.
____________________________________________


1
    Department of Environmental Protection.


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             Next, Commonwealth's witness, Ms. June Black, an expert
      in organic chemical analysis, testified that the samples they
      received from Appellant's property were hazardous because their
      chemical composition exceeded regulatory standards. Finally,
      Commonwealth's witness, Mr. Don Hentz, Special Agent with
      Attorney General's Environment Crimes Unit, testified that the
      tires on Appellant's property posed a fire and bug risk, as well as
      the oil generated by any fires would be at risk to run off the
      property after a rain. Not only that, but Agent Hentz read a
      statement provided by … Appellant wherein he admitted that the
      drums on his property, the tires, and the soil thereof are all
      contaminated and that he is solely responsible for this
      contamination.

             Next, Appellant testified that he put a bulldozer on his
      property to follow the COA and remove tires from his property,
      but further acknowledged that his effort wasn't enough. He
      further stated that he did not have a permit from the D[EP] for
      his property but claimed that no one, in the multiple
      conversations he had with the DEP employees, told him that a
      permit was required.        Contradicting the Commonwealth's
      witnesses' testimony, he also stated that pursuant to the COA,
      he provided frequent notations of waste removal to the DEP.
      Finally, he claimed that he did not necessarily see that the
      60,000-70,000 tires on his property amounted to waste and,
      contradicting the test results performed upon samples taken
      from his property, testified that there was nothing hazardous
      stored in any container or otherwise on his property.

Trial Court Opinion, 2/14/17, at 1-3 (citations omitted).

      On July 15, 2016, Appellant was found guilty of five violations of the

SWMA: a single violation of Section 401(a) (Management of hazardous

waste), and four violations of Section 6018.610(1) (Unlawful conduct). On

September 1, 2016, the trial court sentenced Appellant to a mandatory

minimum term of 2-4 years’ incarceration, and a consecutive term of 5

years’ probation, for his violation of Section 401(a). Appellant also received

concurrent terms of 6-12 months’ incarceration, and 1 year of probation, for



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two of the counts of unlawful conduct, a fine of $1,000 for the third, and no

further penalty was imposed for the final offense.

      Appellant timely filed post-sentence motions on September 12, 2016,

which were effectively denied when the trial court recognized, in an order

dated October 21, 2016, that Appellant had orally withdrawn them at a post-

sentence motion hearing conducted that same day.      Appellant then filed a

notice of appeal on October 24, 2016.       He timely filed a court-ordered

Pa.R.A.P. 1925(b) statement on November 9, 2016. The trial court issued

its Rule 1925(a) opinion on February 14, 2017.

      Appellant now presents the following question for our review:

      Did the [t]rial [c]ourt err by sentencing … Appellant under the
      mandatory provisions of Section 606(f) for violations of Section
      401 as said mandatory provisions have been deemed
      unconstitutional by the [United States] Supreme Court's holding
      in [Alleyne]?

Appellant’s Brief at 4.

      We apply the following standards to Appellant’s illegal sentencing

claim:

      [A] challenge to the legality of the sentence can never be waived
      and may be raised by this Court sua sponte. Commonwealth
      v. Orellana, 86 A.3d 877, 883 n. 7 (Pa. Super. 2014) (citation
      omitted). We further note that issues pertaining to the United
      States Supreme Court's decision in Alleyne … directly implicate
      the legality of the sentence. Commonwealth v. Lawrence, 99
      A.3d 116, 122–25 (Pa. Super. 2014). With this in mind, we
      proceed by noting our well-settled standard of review of
      questions involving the legality of a sentence.

            “A challenge to the legality of a sentence ... may be
      entertained as long as the reviewing court has jurisdiction.”
      Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.

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J-S33003-17


     Super. 2011) (citation omitted). It is also well-established that
     “[i]f no statutory authorization exists for a particular sentence,
     that sentence is illegal and           subject to correction.”
     Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014)
     (citation omitted). “An illegal sentence must be vacated.” Id.
     “Issues relating to the legality of a sentence are questions of
     law[.] ... Our standard of review over such questions is de novo
     and our scope of review is plenary.” Commonwealth v. Akbar,
     91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted).

Commonwealth v. Wolfe, 106 A.3d 800, 801–02 (Pa. Super. 2014), aff'd,

140 A.3d 651 (Pa. 2016).

     In Alleyne, the Supreme Court held that “facts that increase
     mandatory minimum sentences must be submitted to the jury”
     and must be found beyond a reasonable doubt. Alleyne, [133
     S.Ct.] at 2163. Alleyne is an extension of the Supreme Court's
     line of cases beginning with Apprendi v. New Jersey, 530 U.S.
     466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the
     Court overruled Harris v. United States, 536 U.S. 545, 122
     S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the Court had
     reached the opposite conclusion, explaining that there is no
     constitutional distinction between judicial fact finding which
     raises the minimum sentence and that which raises the
     maximum sentence.

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014).

     The   rule   announced   in   Alleyne   had   a   substantial   impact   on

Pennsylvania’s    mandatory   minimum     sentencing   scheme,   as   most    of

Pennsylvania’s mandatory minimum sentencing statutes contained an

Alleyne-offending, proof-at-sentencing provision.      In Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), this Court considered

the effect of Alleyne with respect to the following mandatory minimum

sentencing statute, as set forth in 42 Pa.C.S. § 9712.1:

     (a) Mandatory sentence.--Any person who is convicted of a
     violation of section 13(a)(30) of the act of April 14, 1972 (P.L.

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J-S33003-17


     233, No. 64), 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.

                                     …

     (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 (held unconstitutional in Newman) (emphasis added,

footnote excluded).

            The Newman Court first concluded that the defendant's
     sentence was illegal in light of Alleyne and required this Court
     to vacate and remand for resentencing. [Newman, 99 A.3d] at
     97–98. However, this Court further noted that Alleyne issues
     are subject to harmless error analysis but that the Alleyne issue
     in Newman was not harmless. Id. at 98–99. Finally, this Court
     rejected the Commonwealth's argument that, if the error was
     not harmless, the appropriate remedy would be to remand to the
     trial court to empanel a second sentencing jury. Specifically, in
     rejecting this argument, the Newman Court concluded that
     Section 9712.1 in its entirety must be struck down as
     unconstitutional in light of Alleyne, concluding that its
     subsections were not severable.

Wolfe, 106 A.3d at 803.

     The    non-severability   of   Alleyne-offending,   proof-at-sentencing

provisions, a principle first established in Newman, led this Court to strike


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J-S33003-17



down numerous other mandatory minimum sentencing statutes with

identical proof-at-sentencing provisions. See, e.g., Wolfe, supra (striking

down 42 Pa.C.S. § 9718 in its entirety under             Alleyne/Newman);

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (striking

down 42 Pa.C.S. §§ 9712 and 9713); Commonwealth v. Bizzel, 107 A.3d

102 (Pa. Super. 2014) (striking down 18 Pa.C.S. § 6317); Commonwealth

v. Blakney, 152 A.3d 1053 (Pa. Super. 2016) (striking down 42 Pa.C.S. §

9718.4).

      In the instant case, Appellant contends that his sentence, imposed

pursuant to Section 606(f) of SWMA, is illegal under Alleyne. That statute

provides as follows:

      (f) Any person who stores, transports, treats, or disposes of
      hazardous waste within the Commonwealth in violation of
      section 401,1 or in violation of any order of the department shall
      be guilty of a felony of the second degree and, upon conviction,
      shall be sentenced to pay a fine of not less than $2,500 but not
      more than $100,000 per day for each violation or to
      imprisonment for not less than two years but not more than ten
      years, or both.
           1
               35 P.S. § 6018.401.

35 P.S. § 6018.606(f).

      It is immediately apparent upon reading Section 606(f) that it is

neither identical nor similar to the Alleyne-violating, proof-at-sentencing

provisions that were deemed unconstitutional and non-severable by the

Newman line of cases.          Section 606(f) does not contain any language

directing that its terms “shall not be … element[s] of the crime.” See, e.g.,


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J-S33003-17



42   Pa.C.S.    §   9712.1(c).   Section    606(f)   does   not   state   that   the

Commonwealth is permitted to present additional evidence at sentencing.

Id. Nor does it dictate a “preponderance of the evidence” standard for the

application of its provisions. Id. Accordingly, we hold that Section 606(f)

does not fall within the purview of the Newman line of cases and, therefore,

Appellant’s sentence under that provision is not facially illegal.

      Nevertheless, while Section 606(f) is not facially invalid under the

Newman line of cases, we must also consider whether Appellant’s sentence

under that provision violates Alleyne, as applied to him.         First, we agree

with Appellant that Section 606(f) provides for a mandatory minimum

sentence.      The statute clearly limits a sentencing court to one of two

sentencing options. Section 606(f) dictates that the sentencing court “shall”

sentence violators of Section 401(a) to a minimum fine, or a minimum

sentence of two years’ incarceration. 35 P.S. § 6018.606(f). Both options

are themselves mandatory minimum sentences and, thus, Section 606(f)

serves to deprive a trial judge of a significant degree of sentencing discretion

much in the same way that most other mandatory minimum sentencing

statutes function.

      However, Alleyne did not outlaw all mandatory minimum sentences.

Rather, Alleyne renders mandatory minimum sentences illegal when their

mandatory sentencing provisions are based on factual triggers which 1) were

not submitted for consideration to the fact-finder; and/or 2) were proven by




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J-S33003-17



a standard less stringent than ‘beyond a reasonable doubt.’          See Miller,

supra.

      Here, Appellant argues that Section 606(f) does present an additional

layer of proof not submitted for determination by the factfinder:

            Section 606(f) provides an additional layer of proof to be
      determined by the Court or additional analysis, that being the
      “or in violation of any order of the department.” [hereinafter,
      “contested language”] This requires an additional finding of fact
      or “proof at sentencing” requirement which has heretofore been
      deemed unconstitutional pursuant to Alleyne.

Appellant’s Brief at 13.

      We disagree.         Section 606(f) provides the criminal penalties for

violations of Section 401(a), the latter of which reads, in pertinent part, as

follows:

      (a) No person or municipality shall store, transport, treat, or
      dispose of hazardous waste within this Commonwealth unless
      such storage, transportation, treatment, or disposal is
      authorized by the rules and regulations of the
      department; no person or municipality shall own or operate a
      hazardous waste storage, treatment or disposal facility unless
      such person or municipality has first obtained a permit for
      the storage, treatment and disposal of hazardous waste from the
      department; and, no person or municipality shall transport
      hazardous waste within the Commonwealth unless such
      person or municipality has first obtained a license for the
      transportation of hazardous waste from the department.

35 Pa.C.S. § 6018.401 (emphasis added).

      Clearly, Section 401(a) does not absolutely prohibit the storage,

transport, treatment, or disposal of hazardous waste.         To the contrary, it

prohibits   such   activities   only   when   they   are   done   without   proper

authorization by the DEP. Thus, while the statute obviously prohibits these

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activities when no permit, license, or other authorization has been obtained

from the DEP, it also inherently proscribes the failure to adhere to DEP

orders that are issued to ensure compliance with its regulations on the

storage, transportation, treatment, or disposal of hazardous waste.    Thus,

we hold that a company’s or individual’s failure to comply with the terms of

DEP permits, licenses, or other orders governing the storage, transportation,

treatment, or disposal of hazardous waste, is itself a violation of Section

401.   Consequently, we also hold that the contested language of Section

606(f) does not present or add a new criminal element to Section 401(a).

Moreover, Appellant does not argue, nor do we ascertain from a plain

reading of the statute, that any provision of Section 606(f) directs a

sentencing court to apply anything less than a “beyond a reasonable doubt”

standard to its provisions.

       In any event, Appellant has not provided any reference to the record

demonstrating that he was sentenced pursuant to the contested provision,

rather than for a “violation of section 401.”      35 P.S. § 6018.606(f).

Moreover, Appellant does not assert that sentences under Section 606(f)

that do not apply the contested language even raise Alleyne concerns.

Thus, Appellant has failed to demonstrate that Section 606(f) violates

Alleyne even if the contested language, contrary to our analysis above, in

fact raises Alleyne concerns.    Furthermore, even if Appellant’s claim is

considered a facial challenge to Section 606(f), despite not falling directly

within the Newman line of cases, Appellant has provided no argument why

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J-S33003-17



the contested language is not severable from the remainder of Section

606(f).

      In sum, we conclude that Appellant’s illegal sentencing claim is

meritless. Section 606(f) does not appear similar to, much less identical to,

the       Alleyne-violating,    proof-at-sentencing     provisions        deemed

unconstitutional    and   non-severable   in   the   Newman   line   of    cases.

Accordingly, we do not view that provision to be facially invalid under

Alleyne.      Furthermore, considering Appellant’s claim as an as-applied

challenge, we reject his interpretation of Section 606(f) insofar as he claims

the contested language effectively provides an additional element of a crime

not defined in Section 401(a).    Finally, Appellant has not even adequately

demonstrated that he was, in fact, convicted under that provision of Section

606(f).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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