J-S38045-14


                            2014 PA Super 267

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
JERMAL BIZZEL,                          :
                                        :
                       Appellant        :     No. 2556 EDA 2013


       Appeal from the Judgment of Sentence Entered April 16, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0011725-2012.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

OPINION BY SHOGAN, J.:                        FILED DECEMBER 02, 2014

     Appellant, Jermal Bizzel, appeals from the judgment of sentence

entered on April 16, 2013, in the Philadelphia County Court of Common

Pleas. In this appeal, Appellant argues that the unconstitutional provisions

of 18 Pa.C.S. § 6317 (Drug-free school zones) cannot be severed from the

remainder of the statute, and therefore, the entire statute should be

declared void and unenforceable. We conclude they cannot be severed, and

thus hold that 18 Pa.C.S. § 6317 is unconstitutional. Accordingly, we affirm

Appellant’s convictions, but we vacate the judgment of sentence and remand

for resentencing.

     On June 14, 2012, the Philadelphia Narcotics Enforcement Team

conducted surveillance in the 2900 block of South Sydenham Street in South
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Philadelphia.   N.T., 2/5/13, at 10-12.     Police Officers witnessed Appellant

engage in the sale of a controlled substance, later identified as four Xanax

pills, on the street in front of 2937 South Sydenham Street. Id. at 13-17,

37-39. Appellant was arrested and charged with possession of a controlled

substance with intent to deliver (“PWID”), possession of a controlled

substance, and criminal conspiracy. Criminal Complaint, 6/15/12. Following

a bench trial, Appellant was found guilty on all counts. N.T., 2/5/13, at 50.

On April 16, 2013, the trial court sentenced Appellant on the PWID

conviction to a term of two to four years of incarceration pursuant to the

mandatory minimum requirements under 18 Pa.C.S. § 6317, relating to

sales of controlled substances in drug-free school zones. N.T., 4/16/13, at

57-58. In doing so, the trial court found by a preponderance of the evidence

that the drug transaction occurred within one thousand feet of a school.

N.T., 4/16/13, at 56. The trial court further concluded that the possession

of a controlled substance conviction merged with PWID for sentencing

purposes. The trial court then imposed a consecutive sentence of two years

of probation for the conspiracy conviction. Id.

      Appellant filed a timely post-sentence motion that was denied by

operation of law on August 22, 2013.        Thereafter, Appellant filed a timely

notice of appeal on September 5, 2013. Both the trial court and Appellant

have complied with Pa.R.A.P. 1925.




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        On appeal, Appellant presents one issue for this court’s consideration:

        Should not the mandatory minimum sentencing statute, 18
        Pa.C.S. § 6317 Drug-free school zones, be declared void and
        unenforceable, where multiple procedural provisions within the
        statute are unconstitutional under the holding in Alleyne v.
        United States,[1] and cannot properly be severed from the
        remaining statute?

Appellant’s Brief at 3 (footnote added).

        On   April    16,   2013,    the   date   Appellant   was    sentenced,    the

Commonwealth was required to prove by a preponderance of the evidence

that Appellant sold controlled substances in a drug free school zone, as

defined in 18 Pa.C.S. § 6317, with the trial judge determining whether the

mandatory minimum sentence applied at the time of sentencing. However,

on June 17, 2013, in the Alleyne decision, the United States Supreme Court

held that facts which increase a mandatory minimum sentence are elements

of the crime and must be proven beyond a reasonable doubt. 2                      Here,

Appellant     filed    a    timely    post-sentence     motion      challenging    the

constitutionality of the mandatory minimum in anticipation of the decision in

1
    Alleyne v. United States, 133 S.Ct. 2151 (2013).
2
  The mandate that facts that increase a mandatory minimum are elements
of the crime and are required to be proven beyond a reasonable doubt
applies in both bench trials and jury trials.      See Commonwealth v.
Munday, 78 A.3d 661, 666 (Pa. Super. 2013) (stating that Alleyne
established “that when a mandatory minimum sentence is under
consideration based upon judicial factfinding of a ‘sentencing factor,’ that
‘sentencing factor’ is, in reality, ‘an element of a distinct and aggravated
crime’ and, thus, requires it be proven beyond a reasonable doubt.”
(quoting Alleyne, 133 S.Ct. at 2163).


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Alleyne. Post-sentence Motion, 4/23/13, at ¶¶ 9-11. Moreover, Appellant

raised the issue in his Pa.R.A.P. 1925(b) statement and cited the decision in

Alleyne as support for his appeal. Pa.R.A.P. 1925(b) Statement, 10/28/13,

at ¶ 5. Thus, this issue was properly preserved on appeal.3

      The constitutionality of a statute is a pure question of law. Robinson

Tp., Washington County v. Commonwealth of Pennsylvania, 83 A.3d

901, 943 (2013). Thus, our standard of review is de novo and our scope of

review is plenary. Id.

      Appellant is challenging the constitutionality of 18 Pa.C.S. § 6317 in its

entirety.   As noted above, the United States Supreme Court’s decision in

Alleyne     rendered   unconstitutional     those   portions   of   Pennsylvania’s

mandatory minimum sentencing statutes that allow a judge to increase a

defendant’s sentence based on a preponderance of the evidence standard as

opposed to utilizing the beyond a reasonable doubt standard. Thus, Alleyne

rendered 18 Pa.C.S. § 6317(b) unconstitutional.4 Here, Appellant argues

that, 18 Pa.C.S. § 6317(b) cannot be severed from the balance of the

statute, and therefore, the unconstitutionality of Section 6317(b) results in

the entire statute being unconstitutional.

3
  While Appellant was sentenced prior to the filing of the decision in Alleyne,
this Court has applied the holding in Alleyne to cases pending on appeal at
the time Alleyne was decided.     Commonwealth v. Watley, 81 A.3d 108,
116-118 (Pa. Super. 2013).
4
  The constitutional infirmity of 18 Pa.C.S. § 6317(b), and other sentencing
statutes, was noted, albeit in dicta, in this Court’s decision in Watley.

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      With regard to severability, the rules of statutory construction provide

as follows:

      1925. Constitutional construction of statutes

      The provisions of every statute shall be severable. If any
      provision of any statute or the application thereof to any person
      or circumstance is held invalid, the remainder of the statute, and
      the application of such provision to other persons or
      circumstances, shall not be affected thereby, unless the court
      finds that the valid provisions of the statute are so essentially
      and inseparably connected with, and so depend upon, the void
      provision or application, that it cannot be presumed the General
      Assembly would have enacted the remaining valid provisions
      without the void one; or unless the court finds that the
      remaining valid provisions, standing alone, are incomplete and
      are incapable of being executed in accordance with the
      legislative intent.

1 Pa.C.S. § 1925.

      The statute at issue, the drug-free school zone provision of the

Pennsylvania Crimes Code, provides as follows:

      6317. Drug-free school zones

      (a) General rule.--A person 18 years of age or older who is
      convicted in any court of this Commonwealth of a violation of
      section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
      No. 64), known as The Controlled Substance, Drug, Device and
      Cosmetic Act, shall, if the delivery or possession with intent to
      deliver of the controlled substance occurred within 1,000 feet of
      the real property on which is located a public, private or
      parochial school or a college or university or within 250 feet of
      the real property on which is located a recreation center or
      playground or on a school bus, be sentenced to a minimum
      sentence of at least two years of total confinement,
      notwithstanding any other provision of this title, The Controlled
      Substance, Drug, Device and Cosmetic Act or other statute to




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     the contrary. The maximum term of imprisonment shall be four
     years for any offense:

           (1) subject to this section; and

           (2) for which The Controlled Substance, Drug, Device
           and Cosmetic Act provides for a maximum term of
           imprisonment of less than four years.

     If the sentencing court finds that the delivery or possession with
     intent to deliver was to an individual under 18 years of age, then
     this section shall not be applicable and the offense shall be
     subject to section 6314 (relating to sentencing and penalties for
     trafficking drugs to minors).

     (b) Proof at sentencing.--The provisions of this section shall
     not be an element of the crime. Notice of the applicability of this
     section 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 evidence
     presented at trial, shall afford the Commonwealth and the
     defendant an opportunity to present necessary additional
     evidence and shall determine by a preponderance of the
     evidence if this section is applicable.

     (c) Authority of court in sentencing.--There shall be no
     authority for a court to impose on a defendant to which this
     section is applicable a lesser sentence than provided for in
     subsection (a), to place the defendant on probation or to
     suspend sentence. Nothing in this section shall prevent the
     sentencing court from imposing a sentence greater than that
     provided in this section. Sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing shall not supersede
     the mandatory sentences provided in this section. Disposition
     under section 17 or 18 of The Controlled Substance, Drug,
     Device and Cosmetic Act shall not be available to a defendant to
     which this section applies.

     (d) Appeal by Commonwealth.--If a sentencing court refuses
     to apply this section where applicable, the Commonwealth shall


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J-S38045-14



      have the right to appellate review of the action of the sentencing
      court. The appellate court shall vacate the sentence and remand
      the case to the sentencing court for imposition of a sentence in
      accordance with this section if it finds that the sentence was
      imposed in violation of this section.

18 Pa.C.S. § 6317.

      Initially, we point out that, pursuant to Alleyne, Section 6317(b) is

now an element of the crime despite the language in the statute specifically

stating that it was not an element. Thus, the legislature clearly did not

intend the result mandated by the decision in Alleyne.

      Additionally, we conclude that 18 Pa.C.S. § 6317(b) cannot be severed

from the rest of the statute because there would be no enforcement

mechanism. In addressing a similar issue regarding Alleyne and 42 Pa.C.S.

§ 9712.1,5 this Court explained as follows:

      We find that Subsections (a) and (c) of Section 9712.1 are
      essentially and inseparably connected. Following Alleyne,
      Subsection (a) must be regarded as the elements of the
      aggravated crime of possessing a firearm while trafficking drugs.
      If Subsection (a) is the predicate arm of Section 9712.1, then
      Subsection (c) is the “enforcement” arm. Without Subsection (c),
      there is no mechanism in place to determine whether the
      predicate of Subsection (a) has been met.

Commonwealth v. Newman, 99 A.3d 86, 101 (Pa. Super. 2014). In the

case at bar, after reviewing the language in 18 Pa.C.S. § 6317 pursuant to

our rules of statutory construction, it is apparent that Section 6317(a) is the


5
   42 Pa.C.S.A. § 9712.1 set forth the mandatory minimum sentences for
crimes involving controlled substances pursuant to 35 P.S. § 780-113(a)(3).



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predicate arm and Section 6317(b) is the enforcement arm.             Without

6317(b) there is no mechanism in place to determine whether the predicate

enumerated in Section 6317(a) has been met.6

      As noted above, the United States Supreme Court’s decision in

Alleyne rendered Section 6317(b) unconstitutional.       In the instant case,

after careful review and pursuant to the rules of statutory construction set

forth in 1 Pa.C.S. § 1925, we conclude that the remainder of 18 Pa.C.S. §

6317 is inseparably connected with and dependent upon the unconstitutional

provision in Section 6317(b). It cannot be presumed the General Assembly

would have enacted the remaining provisions without Section 6317(b), and

the remaining provisions, standing alone, are incomplete and are incapable

of being executed in accordance with the legislative intent. Therefore, we

are constrained to hold that 18 Pa.C.S. § 6317 is unconstitutional.

      For the reasons set forth above, we affirm Appellant’s convictions.

However, because we hold that 18 Pa.C.S. § 6317 is unconstitutional, we

vacate the judgment of sentence and remand for resentencing.




6
   Indeed, the Commonwealth concedes that subsection (c) of 42 Pa.C.S. §
9712.1 is “virtually identical” to 18 Pa.C.S. § 6317(b). See Commonwealth’s
Brief at 11 n.5 (referencing our decision in Watley, 81 A.3d at 117 n.4).

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J-S38045-14



     Convictions affirmed.      Judgment of sentence vacated due to the

unconstitutionality of 18 Pa.C.S. § 6317. Case remanded for resentencing.

     P.J.E. Ford Elliott joins this Opinion.

     Judge Bowes files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2014




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