J-A23016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

LEON RAYMOND WALLS

                            Appellant                       No. 1488 WDA 2015


            Appeal from the Judgment of Sentence August 13, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0007810-2014


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

CONCURRING STATEMENT BY LAZARUS, J.:                  FILED: August 4, 2017

        I agree with the majority’s disposition of this case, but I write

separately    to   express     my    concern   with   the   recurring   constitutional

challenges to section 9727, and, in particular, with the difficulties facing

sentencing courts in finding appropriate placement for defendants suffering

from severe mental illness.

        Here, a jury found Appellant guilty but mentally ill of attempted

homicide, aggravated assault, and various other charges relating to victim

Meadows, and not guilty by reason of insanity of the attempted homicide




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*
    Retired Senior Judge assigned to the Superior Court.
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and reckless endangerment of victim Wright.             The court imposed a

mandatory minimum sentence of ten to twenty years’ incarceration.1

        Section 9727 of the Sentencing Code provides:

        (a)   Imposition of sentence.--A defendant found guilty but
              mentally ill or whose plea of guilty but mentally ill is
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1
    42 Pa.C.S.A. § 9714. Section 9714 provides:

        (a) Mandatory sentence.--

        (1)   Any person who is convicted in any court of this Commonwealth
              of a crime of violence shall, if at the time of the commission of
              the current offense the person had previously been convicted of
              a crime of violence, be sentenced to a minimum sentence of at
              least ten years of total confinement, notwithstanding any other
              provision of this title or other statute to the contrary. Upon a
              second conviction for a crime of violence, the court shall give the
              person oral and written notice of the penalties under this section
              for a third conviction for a crime of violence. Failure to provide
              such notice shall not render the offender ineligible to be
              sentenced under paragraph (2).

42 Pa.C.S.A. § 9714(a)(1). Here, Walls had a prior conviction of voluntary
manslaughter in California. Both criminal attempt-homicide and aggravated
assault are defined as “crimes of violence” pursuant to section 9714(g).

      I also note that our Supreme Court has granted allowance of appeal in
in Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016), which held
the defendant could receive the mandatory minimum sentence under section
9714 for arson, based on a prior conviction for burglary, without the jury
making a finding on the prior conviction. See Commonwealth v. Bragg,
143 A.3d 890 (Pa. 2016)(Mem). See also Commonwealth v. Reid, 117
A.3d 777, 785 (Pa. Super. 2015) (section 9714, which provides for
mandatory minimum sentences based on prior convictions, not rendered
unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013)).
The Pennsylvania Supreme Court’s review is limited to the issue of whether
the mandatory minimum sentence imposed under 42 Pa.C.S.A. § 9714
should be vacated, and the matter remanded for a new sentencing hearing,
due to the fact that section 9714 is unconstitutional as currently drafted.



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              accepted under the provisions of 18 Pa.C.S. § 314 (relating
              to guilty but mentally ill) may have any sentence imposed
              on him which may lawfully be imposed on any defendant
              convicted of the same offense. Before imposing sentence,
              the court shall hear testimony and make a finding on the
              issue of whether the defendant at the time of sentencing is
              severely mentally disabled and in need of treatment
              pursuant to the provisions of the act of July 9, 1976 (P.L.
              817, No. 143), known as the “Mental Health Procedures
              Act.”[2]

       (b) Treatment.--

          (1) An offender who is severely mentally disabled and in
          need of treatment at the time of sentencing shall,
          consistent with available resources, be provided such
          treatment as is psychiatrically or psychologically indicated
          for his mental illness. Treatment may be provided by the
          Bureau of Correction, by the county or by the Department
          of Public Welfare[3] in accordance with the “Mental Health
          Procedures Act.”

          (2) The cost for treatment of offenders found guilty but
          mentally ill, committed to the custody of the Bureau of
          Correction and transferred to a mental health facility, shall
          be borne by the Commonwealth.

42 Pa.C.S.A. § 9727(a), (b) (emphasis added).

       At the August 13, 2015 sentencing hearing, the court stated:

          I also want to state on the record that [the assistant
          district attorney] and [the assistant public defender] and
          myself have all spent a lot of time in the last week looking
          for and hoping to find an appropriate mental health facility
          where Mr. Walls can be treated. It is my strong belief that
          Mr. Walls is suffering from a serious mental illness, was at
          the day of the crime and still is. We have run up against a
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2
    50 P.S. § 7101 et seq.
3
    Now Department of Human Services; see 62 P.S. § 103.



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          wall. There are no such facilities available in the state. . . .
          I did speak with the people at SCI-Waymart. They further
          indicated that although this Court may recommend the
          sentence, include SCI-Waymart, they were not bound by
          that recommendation. They indicated that Waymart is not
          a full-time placement, so that even if he were to go in and
          out of there, he would not remain there for the entirety of
          his sentence. . . . Unfortunately, it’s very difficult for me to
          find someplace appropriate for you to go. The budgeting,
          and I know this isn’t your fault, but they have just taken
          away so many resources, and what happens is that people
          that are mentally ill, since they have nowhere else to go,
          end up in jail.

N.T. Sentencing Hearing, 8/13/15, at 3-5.

       In Pennsylvania, when an inmate enters a facility operated by the

Department of Corrections (DOC), that inmate immediately undergoes a

physical and mental health screening, which the DOC uses to create an

individualized correctional plan.4        It is the policy of the DOC to deliver a

“broad continuum of mental health services to ensure that regardless of how

major or minor the emotional disturbance, services are available to every




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4
    Policy Statement, Commonwealth of Pennsylvania, Department of
Corrections, January 12, 2017.        The DOC collaborates with two major
reviews of the mental healthcare system conducted by the U.S. Department
of Justice and the Disability Rights Network of Pennsylvania.
http://www.cor.pa.gov/Pages/search.aspx?searchBox=severe%20mental%2
0illness%20or%20severely%20mentally%20ill#.WWT1irHD8dU                 (last
visited July 11, 2017). One fourth of Pennsylvania’s male prison population
struggles with a mental health disorder and eight percent have been
diagnosed as seriously mentally ill. Id.




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J-A23016-16


inmate in the Department.”5           And yet, despite this Court’s rejection of a

claim that section 9727 violates state and federal constitutional prohibition

of   cruel   and   unusual     punishment,     Yasipour,    supra,   this   particular

defendant will not get the necessary treatment due to a lack of resources.

There is a clear disconnect between the DOC’s stated policy and the realities

facing the sentencing judge here.         Thus, I concur.

STRASSBURGER, J., joins this concurring statement.




____________________________________________


5
     Policy Statement, Commonwealth of Pennsylvania, Department of
Corrections,  March    9, 2015   http://www.cor.pa.gov/Pages/search.
aspx?searchBox=13.8.1#.WWUFxLHD8dU (last visited July 11, 2017).



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