J-A35007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

RONALD STANFORD,

                        Appellant                   No. 1513 WDA 2013


          Appeal from the Judgment of Sentence August 22, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0002099-2012


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

CONCURRING MEMORANDUM BY BOWES, J.:               FILED JANUARY 20, 2015

     I agree in full with the learned majority that Appellant’s sufficiency

claim is without merit. In addition, I am constrained to concur in the result

with respect to Appellant’s sentencing claim based on this Court’s recent

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en

banc),   Commonwealth         v.    Valentine,    2014   PA    Super    220,

Commonwealth v. Fennell, 2014 PA Super 261, Commonwealth v.

Cardwell, 2014 PA Super 263, and Commonwealth v. Bizzel, 2014 PA

Super 267. However, for the reasons more fully laid out in my concurring

opinion in Bizzel, supra, I must respectfully disagree with the conclusion

that our mandatory minimum statutes were not severable.

     In Bizzel, I opined that the Newman Court incorrectly analyzed the

legislative intent aspect of the severability test. Specifically, the Newman
J-A35007-14



majority failed to view the inquiry through the eyes of the legislature had it

known that it was unconstitutional for a judge to determine facts that trigger

a mandatory minimum sentence based on a preponderance of the evidence

standard.   See Annenberg v. Commonwealth, 757 A.2d 338, 347 (Pa.

2000) (“Section 1925 funnels our inquiry to examining what the enacting

legislature would have done had it known that the [provision in question]

was unconstitutional.”); see also United States v. Booker, 543 U.S. 220,

246 (2005). Instead, the Newman Court focused on what the legislature

intended in passing the unconstitutional version of the statute. In my view,

this approach was, in light of established Pennsylvania Supreme Court

precedent, error.

      I simply cannot agree that the legislature would not have enacted a

statute to mandatorily increase punishment based on the sale of drugs of a

certain weight because a judge could not determine the facts by a

preponderance standard.     Had the legislature known this burden of proof

was unconstitutional, it is more likely that it would have substituted the

constitutional standard in its place. The overriding concern of the legislature

was to increase punishment for drug offenses and decrease judicial

sentencing discretion. The mandatory minimum statute did not exist for the

sole purpose of allowing judges to determine facts by a preponderance

standard. Where the purpose of a statute is “to accomplish several distinct

objects, and these can be severed, so that one may fall and the others

stand, only the part which infringes the constitution will be declared

                                     -2-
J-A35007-14



invalid[.]”   Thomas Raeburn White, Commentaries on the Constitution of

Pennsylvania, at 29 (1907) (collecting cases); see also Commonwealth v.

Williams, 832 A.2d 962, 986 (Pa. 2003).

       Further, it is nonsensical to conclude that a person’s jury trial rights

were violated where he stipulated to the facts in question. The purpose of a

jury trial is to determine disputed questions of material fact.      Here, there

was no dispute regarding the weight of the drugs.         Moreover, although I

concede that this Court has determined that imposing such a mandatory is

illegal, I believe it has done so without sufficient consideration of the legality

of sentence paradigm. There is a distinction between the situation where a

legality of sentence question is presented, and when a sentence is actually

illegal.

       The sentence herein was not illegal because of Alleyne, but was

rendered illegal due to our decision in Newman and its progeny finding that

Pennsylvania mandatory minimum statutes, not related to prior convictions,

are unconstitutional as a whole. In Newman, this Court found that because

mandatory     minimum     sentencing   challenges    ordinarily   present   illegal

sentencing questions, and since Apprendi v. New Jersey, 530 U.S. 466

(2000) issues have been held to implicate the legality of a sentence, the

Alleyne issue in that case constitutional a non-waivable illegal sentencing

claim.     However, Apprendi challenges relate to the legality of one’s

sentence because the sentence would exceed the statutory maximum. This

is simply not true under Alleyne.

                                       -3-
J-A35007-14


       I am cognizant that numerous cases from this Court, including an

opinion which I authored, see Commonwealth v. Watley, 81 A.3d 108

(Pa.Super. 2013) (en banc), have held that Alleyne issues implicate the

legality of sentence construct. See Newman, supra; Commonwealth v.

Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Thompson,

93 A.3d 478 (Pa.Super. 2014); Commonwealth v. Matteson, 96 A.3d

1064 (Pa.Super. 2014); Commonwealth v. Munday, 78 A.3d 661

(Pa.Super. 2013). These cases have offered differing rationales for why the

issue presents an illegal sentencing question.    My view in Watley was

premised on prior precedent holding that certain challenges to mandatory

minimum statutes, even where there exists other statutory authority for the

sentence, have been considered illegal sentencing questions.1 Other cases

____________________________________________


1
  In addition to Alleyne-related issues, in a host of other cases, both this
Court and our Supreme Court have construed various mandatory minimum
sentencing claims as legality of sentence questions. See Commonwealth
v. Akbar, 91 A.3d 227 (Pa.Super. 2014); 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);
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
(Footnote Continued Next Page)


                                           -4-
J-A35007-14


have analogized Alleyne with Apprendi, see Newman, supra and

Munday, supra, although, as noted, Apprendi claims fit within the agreed-

upon illegal sentencing category of sentences that exceed the statutory

maximum while Alleyne does not.2

                       _______________________
(Footnote Continued)

(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. Jacobs, 900 A.2d 368 (Pa.Super. 2006) (en banc)
(noting in dicta that certain mandatory minimum sentencing claims present
legality of sentence issues); 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. Taylor, __ A.3d __ (Pa. 2014) (filed November 20,
2014) (failure to order mandatory drug and alcohol assessment prior to
sentencing, in violation of statutory language, presented legality of sentence
issue); 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).

      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 upon a violation of the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman. Of course, in Commonwealth v. Lawrence,
99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges
based on equal protection and ex post facto claims, relative to a mandatory
minimum statute, did not present non-waivable illegal sentencing questions.
2
 My own position is that there is a critical distinction between pre-Alleyne
mandatory cases, where judges were sentencing based on essential facts
(Footnote Continued Next Page)


                                            -5-
J-A35007-14


      The Newman Court, however, not only treated the Alleyne argument

as an illegal sentencing claim, but also reached an issue of severability that

had not been leveled below. In my view, the unconstitutionality of an entire

statute, i.e., whether it is non-severable, must ordinarily be argued and

litigated below to entitle a defendant to relief.    Phrased differently, the

severability of a sentencing statute is not automatically a non-waivable

illegal sentencing challenge. To put this in context, I note that compelling

arguments have been made that an Alleyne-type rationale should apply to

sentencing statutes involving prior convictions. Apprendi, supra (Thomas,

J., concurring); Harris v. United States, 536 U.S. 545 (2002) (Thomas, J.,
                       _______________________
(Footnote Continued)

connected to the crime that were not determined by a jury or agreed to by
the defendant via stipulation or a plea, and post-Alleyne sentencing cases.
In the latter situation, I believe any Alleyne issue should be preserved
because the courts and Commonwealth were attempting to comply with that
decision, thereby eliminating the constitutional jury trial problem. Hence,
the grounds as to why a sentence would be constitutionally infirm are simply
not the same in the pre-Alleyne cases. Phrased differently, in the pre-
Alleyne cases, as here, there is an alleged and, in some cases, actual
constitutional violation, based on an intervening change in the law, in
combination with a lack of discretionary authority on the part of the
sentencing judge.      In post-Alleyne cases, the constitutional jury trial
violation is generally no longer a concern. The absence of discretion in
sentencing does not automatically equate to an illegal sentencing issue. See
Commonwealth v. Schutzues, 54 A.3d 86 (Pa.Super. 2012);
Commonwealth         v.   Sarapa,    13   A.3d    961    (Pa.Super.   2011);
Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc)
(Bender, J., dissenting). For example, in Commonwealth v. Foster, 960
A.2d 160 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), in
addition to the lack of judicial discretion, there was a violation of the
statutory language interpreted by intervening Pennsylvania Supreme Court
case law.




                                            -6-
J-A35007-14


dissenting); Almendarez–Torres v. United States, 523 U.S. 224 (1998)

(Scalia, J., dissenting) (opining that where prior convictions result in a

sentence     that    otherwise     exceeds     the   statutory   maximum,     a   jury

determination       of   the   prior   convictions   is   required);   but   compare

Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004); see also Aponte,

supra (Saylor, J., concurring).

       This Court, however, does not sua sponte raise and address whether

such statutes are unconstitutional in their entirety absent an argument by

the defendant.           Pointedly, in Watley, supra, where we sua sponte

discussed and rejected an Alleyne question, we did not address severability

as that issue was simply not raised or argued below.

       Even absent the mandatory sentencing statute, Appellant could

unequivocally have been sentenced to the period of incarceration provided in

this case. This is not a situation where the court lacked statutory authority

for its sentence based on the plain language of the statute. 3           Rather than

____________________________________________


3
   I recognize that in Commonwealth v. Foster, 960 A.2d 160 (Pa.Super.
2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), a decision I authored, this
Court did not find dispositive, on the issue of whether the claim was a
legality of sentence question, the fact that the defendant could be sentenced
to the same period of incarceration absent the mandatory sentencing
statute. Unlike Foster, where the sentence unequivocally violated the
Pennsylvania Supreme Court’s pronouncement in Commonwealth v.
Dickson, 918 A.2d 95 (Pa. 2007), this sentence does not violate Alleyne v.
United States, 133 S.Ct. 2151 (2013) because the fact in question was
undisputed and stipulated to. I have more recently expressed reservations
regarding invocation of the illegal sentencing paradigm outside of settled
(Footnote Continued Next Page)


                                           -7-
J-A35007-14


engage in a wholesale striking down of our mandatory sentencing statutes, I

would allow prosecutors to prove any fact required to subject the defendant

to a mandatory sentence to the jury beyond a reasonable doubt. Indeed,

this procedure has been adopted by the Commonwealth regarding Apprendi

issues, see Commonwealth v. Mobley, 14 A.3d 887 (Pa.Super. 2011), and

has never been held to violate the federal or state constitution. Where the

fact-finder’s findings already encompass the necessary facts needed to

subject a defendant to a mandatory minimum sentence, or the facts have

been stipulated to as here, I would find any non-compliance with Alleyne to

be harmless.     See Watley, supra; Matteson, supra; United States v.

Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United

States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation

harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same);

United    States       v.   Mack,     729    F.3d   594,   (6th   Cir.   2013)   (same).


                       _______________________
(Footnote Continued)

constructs. I have frequently commented on the difficulties of this Court and
our Supreme Court in agreeing upon a settled definition of an illegal
sentencing claim. Commonwealth v. Tobin, 89 A.3d 663 (Pa.Super.
2014); Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en
banc). I share the sentiments of the learned Justice (now Chief Justice)
Thomas Saylor that there is some flexibility in whether a sentence is illegal
and believe careful consideration on an issue by issue basis is warranted to
determine whether a sentencing issue raises an unlawful sentence per se.
See Foster, 17 A.3d 355-356 (Saylor, J., concurring); see e.g.
Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014) (finding ex
post facto and equal protection constitutional challenges to mandatory were
waivable).



                                            -8-
J-A35007-14


Nonetheless, because Newman and its progeny are binding on this panel, I

am constrained to concur in the result.




                                    -9-
