J-S63027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANDRE LAMONT SPANGLER,

                            Appellant               No. 277 MDA 2014


            Appeal from the Judgment of Sentence March 15, 2011
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0002280-2009


BEFORE: BOWES, PANELLA, and PLATT, JJ.

CONCURRING MEMORANDUM BY BOWES, J.:            FILED DECEMBER 02, 2014

       Numerous cases from this Court have held challenges to the imposition

of a mandatory minimum statute relate to the legality of sentence.1     This
____________________________________________


1
   Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc);
Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014);
Commonwealth v. Valentine, 2014 PA Super 220; Commonwealth v.
Matteson, 96 A.3d 1064 (Pa.Super. 2014); Commonwealth v.
Thompson, 93 A.3d 478 (Pa.Super. 2014); Commonwealth v. Akbar, 91
A.3d 227 (Pa.Super. 2014); Commonwealth v. Watley, 81 A.3d 108
(Pa.Super. 2013) (en banc); Commonwealth v. Munday, 78 A.3d 661
(Pa.Super. 2013); Commonwealth v. Armstrong, 74 A.3d 228 (Pa.Super.
2013); Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013);
Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super. 2013);
Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth       v. Stokes,   38  A.3d   846  (Pa.Super.   2012);
Commonwealth       v. Poland,   26  A.3d   518  (Pa.Super.   2011);
Commonwealth       v. Kittrell, 19   A.3d  532  (Pa.Super.   2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
(Footnote Continued Next Page)
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authority includes decisions from this Court post-Commonwealth v.

Foster, 17 A.3d 332 (Pa. 2011) (OAJC). See footnote 1 (collecting cases).

Moreover, the plurality opinion by the Supreme Court leaves in place this

Court’s underlying decision in Foster, which remains binding precedent on

other three judge panels.         See Sorber v. American Motorists Ins. Co.,




                       _______________________
(Footnote Continued)

Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
Commonwealth         v.  Bell,    901    A.2d    1033    (Pa.Super.  2006);
Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001);
Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super. 2000), reversed on
other ground, 786 A.2d 202 (Pa. 2001); see also Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000) (Commonwealth’s issue on appeal
regarding failure to impose a mandatory fine under 18 Pa.C.S. § 7508 was
non-waivable illegal sentencing claim); Commonwealth v. Eisenberg, 98
A.3d 1268 (Pa. 2014) (constitutional challenge to mandatory minimum fine
was illegal sentencing question); Commonwealth v. Jacobs, 900 A.2d 368
(Pa.Super. 2006) (en banc) (noting in dicta that certain mandatory minimum
sentencing claims present legality of sentence issues).

      In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based on it violating the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman.



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680 A.2d 881, 882 (Pa.Super. 1996) (“As long as the decision has not been

overturned by our Supreme Court, it remains binding precedent.”).

      The majority’s tally of votes in the Supreme Court’s Foster decision,

though interesting, is a non-sequitur.          The question is whether other

decisions from this Court have interpreted similar claims as legality-of-

sentence issues. Frankly, the fact that four Justices, some of whom are no

longer on our High Court, rejected a bright-line test is not of precedential

significance where a majority of Justices could not agree on a single

rationale. Our en banc decisions and other cases decided both before and

after the Supreme Court’s decision in Foster remain viable precedent that

must be applied in a principled manner where the issues are the same or

cannot be meaningfully distinguished.

      I recognize that the author of the learned majority is reiterating an

almost identical position to the one he espoused in Commonwealth v.

Boyd, 73 A.3d 1269 (Pa.Super. 2013) (en banc). That decision involved a

fine; hence, it is not controlling in this case. Moreover, Boyd cannot be read

to overturn decisions that occurred after it.

      Like the majority, however, I agree that mere incantation that a

mandatory minimum sentencing statute violates the constitution should not

always be considered a legality of sentence question. This Court does not

sua sponte raise and address every conceivable constitutional claim where a

mandatory minimum is imposed, nor do we generally find a sentence to be

illegal unless an intervening decision occurs, rendering the sentencing

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statute or application of the statute constitutionally or statutorily suspect.

For example, this case involves a mandatory sentence triggered by prior

convictions. Prior convictions currently remain an exception to Alleyne v.

United States, 133 S.Ct. 2151 (2013), and Apprendi v. New Jersey, 530

U.S. 466 (2000), which permit a judge to determine prior convictions by a

preponderance-of-the-evidence standard at sentencing.        We do not sua

sponte address and afford relief on a claim that the mandatory violates the

jury trial right based on counting the votes of Justices on the United States

Supreme Court.

       Indeed, I have commented on the need for this Court to more carefully

consider individualized sentencing issues in determining whether the claim

implicates the legality of sentence construct.     See Commonwealth v.

Tobin, 89 A.3d 663 (Pa.Super. 2014).       This Court has recently held that

secondary issues arising out of a mandatory sentencing claim relate to the

legality of a sentence in vacating a sentence where the secondary matter

was not preserved or argued. For example, in Newman, this Court reached

a question of severability that had not been raised below under the guise

that the statute involved was a mandatory sentencing statute. Similarly, in

Valentine, supra, this Court vacated a sentence in part based on Newman

and a separation of powers argument that had never been leveled at the

trial level.

       I acknowledge that I myself, based on existing precedent, have sua

sponte raised an Alleyne mandatory minimum sentencing issue, but I found

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the sentence therein to be legal. Watley, supra. It is one thing for this

Court to consider an issue as a legality of sentence claim and then reject the

position that the sentence is illegal, but quite another to afford relief on a

nuanced statutory or constitutional argument not advanced at the trial level

or on appeal.      Indeed, in Watley, I set forth that merely invoking that a

sentence violated due process did not preclude waiver.      Furthermore, our

Supreme Court has declined to reach legality of sentence questions that

were not adequately briefed. 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).

        Were I writing on a clean slate, or in an en banc decision where the

issues are squarely before this Court, I would be willing to revisit our prior

decisions to the extent that they can be read as a blanket statement that all

mandatory minimum sentencing challenges implicate the legality of a

sentence. Pointedly, I agree with the author of the majority insofar as he

recognizes that Appellant’s due process and equal protection claims are not

the type of claims that are “obvious or undeniable.” Majority Memorandum,

at 8.

        To be sure, I joined this Court’s opinion in Commonwealth v.

Lawrence, 99 A.3d 116 (Pa.Super. 2014), which found waiver of an equal

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protection and ex post facto challenge to a mandatory minimum sentence.

Therein, we also discussed that a mandatory sentencing statute related to

an   Alleyne   issue   was   an   illegal   sentencing   claim.   However,   we

distinguished between Apprendi, Alleyne, Eighth Amendment claims, and

double jeopardy issues and other constitutional challenges to a mandatory

sentence. The Lawrence Court opined,

            In our view, there is a meaningful difference between the
      remaining [equal protection and ex post facto claims] Appellant
      raises in this case and issues pertaining to the Eighth
      Amendment, merger, Apprendi and Alleyne.             The Eighth
      Amendment, merger, Apprendi, and even Alleyne all directly
      circumscribe the trial court's sentencing process and sentencing
      authority.   Stated another way, the goal of the Cruel and
      Unusual Punishment Clause, the merger doctrine, Apprendi and
      Alleyne is to protect defendants from the imposition of
      punishments by trial judges that are unconstitutional, imposed
      through unconstitutional processes, or are a “greater
      punishment than the legislature intended.”

Lawrence, supra at 123 (emphasis in original). We continued,

      Appellant has not cited to any case where we have allowed a
      constitutionally-based legality of sentencing claim regarding
      mandatory minimum sentencing to be raised for the first time on
      appeal, leaving aside cases involving Alleyne. If we were to
      hold that an Equal Protection and Ex Post Facto challenge is non-
      waivable because a mandatory minimum sentence is involved,
      th[e]n any state or federal constitutional provision that could
      serve as a basis to challenge a mandatory minimum sentence
      must also be non-waivable as well. Further, if we did not require
      preservation in the trial court, all of these constitutional
      challenges could also be raised by this Court sua sponte as well.




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Id. at 124 (footnote omitted); compare Commonwealth v. Harley, 924

A.2d 1273 (Pa.Super. 2007) (rejecting equal protection argument to

mandatory minimum sentence).

     I am cognizant that in Commonwealth v. Wynn, 760 A.2d 40

(Pa.Super. 2000), reversed on other ground, 786 A.2d 202 (Pa. 2001), we

did consider a constitutional claim unrelated to Apprendi, Alleyne, Eighth

Amendment issues, double jeopardy or merger as an illegal sentencing

claim. We, nonetheless, affirmed. That decision was initially granted review

by our Supreme Court on the question of whether the constitutional

challenge   was   a   non-waivable    illegal   sentencing   claim.     See

Commonwealth v. Wynn, 771 A.2d 1232 (Pa. 2001).               However, the

statute in question was ruled unconstitutional by another decision and,

without addressing the question of waiver or issue preservation, the

Supreme Court reversed in a per curiam order.      In subsequent cases, we

have retreated from the view that any constitutional challenge to a

sentencing statute is non-waivable.        See Watley, supra; Lawrence,

supra; Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super. 2006) (en

banc).

     Since neither of Appellant’s claims is the type of mandatory minimum

challenge that has previously been held to implicate the legality of one’s

sentence, I agree that Appellant’s due process and equal protection issues




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are waived.2 See Lawrence, supra; see also Commonwealth v. Gunter,

849 A.2d 587 (Pa.Super. 2004) (equal protection claim waived even though

defendant was sentenced to school zone mandatory minimum).




____________________________________________


2
    I join in the majority’s rejection of Appellant’s Eighth Amendment position.



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