                           [J-41D-2017] [OAJC: Saylor, C.J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 86 MAP 2016
                                               :
                      Appellant                :   Appeal from the Order of the Superior
                                               :   Court at No. 2125 MDA 2014 dated July
                                               :   14, 2015, vacating and remanding the
               v.                              :   Judgment of Sentence of the Court of
                                               :   Common Pleas of Schuylkill County,
                                               :   Criminal Division, at No. CP-54-CR-
ANGEL ANTHONY RESTO,                           :   0001840-2013 dated November 24,
                                               :   2014
                      Appellee                 :
                                               :   ARGUED: May 9, 2017
                                               :


                                  CONCURRING OPINION


JUSTICE TODD                                             DECIDED: February 21, 2018
         This is the third in a series of recent decisions by our Court interpreting the

contours of a defendant’s Sixth Amendment right, pursuant to Alleyne,1 to have a jury

find beyond a reasonable doubt any fact that increases his or her mandatory minimum

sentence.     Here, the fact of a conviction, which triggered the mandatory minimum

sentence under 42 Pa.C.S. § 9718(a)(3), was found by a jury beyond a reasonable

doubt.     That being the case, Appellee’s Sixth Amendment rights were not violated.

Therefore, I join the ultimate conclusion of the Opinion Announcing the Judgment of the

Court (“OAJC”) that Appellee is not entitled to relief. However, like Justice Dougherty,

whose concurrence I join in full, I cannot accept the OAJC’s attempt to distinguish our



1   Alleyne v. United States, 133 U.S. 2151 (2013).
Court’s prior decision in Wolfe.2 Indeed, in my view, the OAJC’s flawed premise, that

there is no “aggravating fact” in this case, OAJC at 4, creates a false distinction with

Wolfe. The “fact” of the underlying conviction is the trigger for the mandatory minimum

sentence, no different than the “fact” of the element of the underlying conviction in Wolfe

was the trigger for the mandatory minimum sentence in that case. In essence, to reach

its result, the OAJC advances my dissenting approach in Wolfe, which was joined by

Justice Dougherty, an analysis a majority of this Court therein rejected. As a result, in

my view, like that of Justice Dougherty, the OAJC should not give continued life to our

erroneous decision in Wolfe, but should overrule it. Thus, for the reasons set forth

below, I respectfully concur only in the result.

        By way of background, in its 2013 decision in Alleyne, the United States

Supreme Court addressed the question of whether, under the Sixth Amendment, a

conviction for using or carrying a firearm in relation to a crime of violence, which carried

a mandatory minimum five-year sentence, and which was increased to a seven-year

mandatory minimum sentence if a firearm was “brandished” when committing the crime,

required a jury, rather than a judge, to find the fact of brandishing. Building upon its

prior decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),3 the high Court

determined that a mandatory minimum sentence, like a mandatory maximum sentence,

increases the penalty for a crime, and any fact that increases the penalty for a crime is

an element that must be found by the jury; therefore, any fact that increases such a

sentence is an element of a new aggravated offense, that must be submitted to the jury.


2   Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).
3 In Apprendi, the high Court determined that any fact that increases a defendant’s
sentence “beyond the prescribed statutory maximum” is an element to be found by the
jury, regardless of the legislature’s designation. 530 U.S. at 490.



                           [J-41D-2017] [OAJC: Saylor, C.J.] - 2
Moreover, as an element of the offense, the factual predicate must be specifically

alleged in the charging document, and the defendant has the right to have that fact

determined by a jury beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-61.

         Our Court first grappled with the Sixth Amendment as interpreted by Alleyne two

years ago in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). In Hopkins, we

considered the constitutionality of a sentence imposed upon a defendant for a

conviction of delivery or possession with intent to deliver a controlled substance, with a

mandatory minimum to be applied when that offense was committed by a defendant

who was over 18 years of age, and within 1,000 feet of, inter alia, a school. 18 Pa.C.S.

§ 6317(a).4     Defendant Kyle Hopkins urged that his mandatory minimum sentence

4   Section 6317 provides:

         (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
         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).
(continued…)

                             [J-41D-2017] [OAJC: Saylor, C.J.] - 3
under Section 6317 violated Alleyne as it was based upon facts ― that the offender was

over 18 years of age, and the proximity of the drug transaction to a school ― that were

not found by a jury, but rather by a judge pursuant to the “proof-at-sentencing”

provisions in Section 6317(b). The Commonwealth, for its part, while conceding some

sections of the sentencing statute were unconstitutional in light of Alleyne, nevertheless




(…continued)
     (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 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.



                          [J-41D-2017] [OAJC: Saylor, C.J.] - 4
argued that those provisions were severable, and, thus, that the sentencing statute

could still be enforced without them.

       Our Court reviewed Section 6317 and considered various provisions which, we

found, were indeed unconstitutional after Alleyne. We detailed that, in particular, the

proof-at-sentencing provisions in Section 6317(b) were in conflict with Alleyne,

highlighting (1) that it was the sentencing court, rather than a jury, that rendered a

factual determination regarding the age of the offender and the proximity of the drug

transaction to the school; (2) that the legislature intended that mandatory minimum

provisions were not to constitute an element of the crime; (3) that notice of the

application of the mandatory minimum sentence was not required prior to conviction; (4)

that the relevant fact finding required only a preponderance of the evidence; and (5) that

the Commonwealth’s right to appeal the fact finding determination raised double

jeopardy concerns.      Thus, we concluded that the sentencing provisions were

unconstitutional under Alleyne.

       We then continued to the more difficult question of whether the statute could

survive without these offensive provisions.      We explained that, in determining the

severability of a statute, the primary focus was on the legislative intent, and whether the

statute, without the infirm provisions, could still function consistent with that intent.

Further, we determined that the non-infirm provisions, standing alone, were incomplete

and incapable of being carried out consistent with the intent of the General Assembly,

especially the legislature’s expression that the mandatory minimum sentencing triggers

were not to be considered elements of a crime and that it did not intend Section 6317 to

constitute a new aggravated offense. As our Court concluded that the statute could not

survive without the invalid portions, we struck Section 6317 as violative of the Sixth

Amendment and Alleyne.




                          [J-41D-2017] [OAJC: Saylor, C.J.] - 5
         One year after our decision in Hopkins, our Court again explored the contours of

a defendant’s Sixth Amendment rights in Wolfe. In Wolfe, the Court was faced with

another mandatory minimum sentence, containing the same proof-at-sentencing

provisions.5 However, in Wolfe, the sentence was not based upon a fact divorced from

the underlying conviction; instead, the triggering fact was an element of the underlying

crime.     Specifically, Matthew Wolfe was convicted of involuntary deviate sexual

intercourse (“IDSI”) where the victim was less than 16 years of age. 18 Pa.C.S. §

3123(a)(7). Section 9718(a)(1) of the Sentencing Code, similar to Section 6317(a) at

issue in Hopkins, requires imposition of a mandatory minimum sentence for a variety of

crimes where the victims are less than 16 years of age, including IDSI crimes. 42

Pa.C.S. § 9718(a)(1).     Therefore, given this overlap in the age requirement in the

offense as well as the mandatory sentencing trigger, the fact that triggered the

mandatory minimum sentence was also the fact that served as the basis of the

underlying conviction. Thus, this fact was (1) stated in the information; (2) an element

of the offense; (3) found by a jury; and (4) found beyond a reasonable doubt.

Accordingly, Wolfe enjoyed his Sixth Amendment right to a jury determination of this

fact which served as the trigger for the mandatory minimum sentence, and all of the

other requirements of Alleyne were satisfied. Nevertheless, in a 4-2 decision, the Wolfe

majority found the entirety of Section 9718 to be unconstitutional.

         Specifically, the Wolfe majority, instead of focusing on whether there was a

constitutional violation, began with an examination of the sentencing statute and its

similarities to the sentencing statute at issue in Hopkins. It initially set forth its premise

that Section 9718 “plainly and explicitly require[s] judicial fact-finding in its subsection


5   Compare 42 Pa.C.S. § 9718(c) with 18 Pa.C.S. § 6317(b).



                           [J-41D-2017] [OAJC: Saylor, C.J.] - 6
(c).” Wolfe, 140 A.3d at 660-61 (citing 42 Pa.C.S. § 9718(c) (“The applicability of this

section shall be determined at sentencing . . . by a preponderance of the evidence.”)).

The majority continued that “subsection (c) is integral to the statute,” rejecting the

Commonwealth’s assertion that subsection 9718(c) can be deemed to be “moot,

dormant, or irrelevant ― or can be otherwise disregarded or overlooked.” Wolfe, 140

A.3d at 661. As such, the majority explained that the remainder of the sentencing

statute could not be severed from its infirm proof-at-sentencing provisions. Thus, the

core of the majority’s analysis was that a mandatory minimum sentence implemented by

proof-at-sentencing provisions, such as those found in Section 9718(c), was

unconstitutional in its entirety because it was incapable of severance.           While

acknowledging the anomaly that the age of the victim was, in fact, an element of the

underlying crime, and thus found by the jury, the majority nevertheless offered that the

mandatory minimum statute must be regarded as creating a “distinct and aggravated

crime,” id. (quoting Alleyne, 133 S.Ct. at 2163), such that judicial fact finding is

nonetheless required: “although the jury at Appellee’s trial plainly decided that the

victim was under sixteen years of age, the sentencing court was bound to make its own

determination at sentencing, see 42 Pa.C.S. § 9718(c), but it could not do so in a

manner consistent with the Sixth Amendment to the United States Constitution, on

account of Alleyne.” Wolfe, 140 A.3d at 661.

      Therefore, in Wolfe, although a jury determined beyond a reasonable doubt that

the victim was under the age of 16, the majority explained that, because the sentencing

court was also required to make that redundant determination at sentencing, imposition

of the mandatory minimum sentence violated the Sixth Amendment.             Indeed, the

majority emphasized its broad holding stating that, “[b]ecause Alleyne invalidates

material requirements of this statute, and because those provisions are non-severable




                         [J-41D-2017] [OAJC: Saylor, C.J.] - 7
per Hopkins, the statute simply cannot be enforced by the judiciary in any respect,” id.

at 662 n.6 (emphasis added), and ultimately concluding that “Section 9718 is

irremediably unconstitutional on its face, non-severable, and void,” id. at 663.

       In my dissent, joined by Justice Dougherty, I pursued a distinct analytical tack.

Wolfe, 140 A.3d 664 (Todd, J., dissenting). Rather than starting with the sentencing

statute, the dissenters first asked whether Wolfe’s constitutional rights had been

violated.    In that regard, the dissenters observed that the fact which triggered the

mandatory minimum sentence was not an extra or independent fact, as in Hopkins, but,

rather, was already an element of the underlying criminal offense, listed in the

information, and found by a jury. For this foundational reason, it was self-evident, in our

view, that Alleyne was not implicated, and that Wolfe’s constitutional rights were not

violated. Furthermore, the dissenters disputed the Wolfe majority’s assertion that, even

though a jury found “in the abstract” the charged element beyond a reasonable doubt,

id. at 662, nevertheless, a sentencing judge was also required to find the same fact by a

lesser burden of proof, thus, violating Wolfe’s Sixth Amendment rights. The dissenters

observed that there was no support in Alleyne for the majority’s ill-founded theory that

the Sixth Amendment could be violated simply because a sentencing judge redundantly

found a fact already found by the jury.

       Finally, the dissenters offered that, even if Section 9718 were infirm, the

harmless error doctrine should apply, as embraced by numerous state and federal

courts.     This, according to the dissenters, was especially appropriate, as the jury

actually found beyond a reasonable doubt the fact triggering the mandatory minimum

sentence. The majority, however, rejected the dissenters’ proffer, admonishing that “a

finding of harmless error would sanction a residual longevity in small segments of an

unseverable statute requiring unconstitutional actions on the part of judicial officers.” Id.




                           [J-41D-2017] [OAJC: Saylor, C.J.] - 8
at 662 n.6. In short, in the view of the dissenters, the majority erred by finding the

mandatory minimum statute to be infirm without first identifying the foundational

constitutional violation to which Appellee was subjected.

      In the case sub judice, the final installment of this trilogy, the mandatory minimum

sentence at issue ― imposed pursuant to the very same statute that was the focus in

Wolfe ― was triggered by a fact already found by the jury, the underlying conviction

itself. See 42 Pa.C.S. § 9718(a)(3). Moreover, the same proof-at-sentencing provisions

that served as the foundation for the majority’s rejection of relief in Wolfe, Section

9718(c), are again at issue here. Yet, despite these seemingly dispositive similarities,

the OAJC ― rather than acting consistent with Wolfe and finding that, because the

proof-at-sentencing provisions are void as found in Wolfe, and, thus, that Appellee is

entitled to relief ― curiously attempts to distinguish Wolfe. In doing so, the OAJC, sub

silento, adopts the dissenters’ approach in Wolfe.

      First, it is noteworthy that the OAJC does not begin its analysis with an

assessment of the viability of the proof-at-sentencing provisions, as the majority did in

Wolfe. Rather, like the dissenters in Wolfe, the OAJC first, and appropriately, considers

whether Appellee’s Sixth Amendment rights were violated.

      Next, the foundation to the OAJC’s analysis is essentially that the underlying

conviction that triggers the mandatory minimum is not an Alleyne “fact,” whereas, by

contrast, the age-of-victim element at issue in Wolfe was an Alleyne fact. See OAJC at

4 (finding “subsection (a)(3) requires no proof of any predicate or aggravating facts.”).

This foundation is faulty.   There is no apparent difference between an underlying

conviction serving as a trigger for a mandatory minimum sentence, and the subset

thereof of an element of the underlying crime serving as a trigger. While the Supreme

Court has not provided a definition of what constitutes an Alleyne fact, the clear import




                         [J-41D-2017] [OAJC: Saylor, C.J.] - 9
of its decisions in this area is that any trigger for a mandatory minimum sentence must

be found by a jury. Indisputably, both the underlying conviction here, and the underlying

element in Wolfe (i.e., the age of the victim), triggering Section 9718’s mandatory

minimum sentences, were found by a jury beyond a reasonable doubt, thereby

satisfying Alleyne. Additionally, the OAJC’s assertion that the underlying conviction at

issue in this matter “is itself a contemporaneous jury determination, and the concern of

Alleyne is with sentencing enhancements tied to facts to be determined by a judge at

sentencing,” OAJC at 4, is equally applicable to the age-of-victim element which the jury

found in Wolfe. Yet, somehow, a constitutional violation was found in Wolfe, but, no

violation is found in the OAJC. It is in my view, entirely illogical for the OAJC to come to

the result it reaches today, but keep Wolfe intact.

       Further, the OAJC jettisons the primary rationale used in Wolfe ― that Section

9718(c) requires judicial fact finding in violation of Alleyne ― by now asserting that

Section 9718(c)’s proof-at-sentencing provisions are mere redundancies, again

adopting the logic of the dissenters in Wolfe. Specifically, the Wolfe majority explicitly

recognized the anomaly that the age-of-victim determination was an element of the

underlying offense; yet, it found that that fact did not alter its “core assessment” that

Section 9718 created a “distinct and aggravated crime” and that the “statute’s directive

for judicial fact-finding attaches to that aggravated crime notwithstanding a jury verdict;

and that sentencing judges are not free to disregard such explicit legislative mandates

by substituting their own procedures.” Wolfe, 140 A.3d at 661.

       The Wolfe dissenters explicitly challenged this concern regarding redundant fact

finding, noting that “the [Wolfe] majority cites nothing to suggest the Alleyne Court was

concerned about a judge making factual findings redundant to those of the jury.” Wolfe,

140 A.3d at 669 (Todd, J., dissenting); id. at 670 (rejecting the majority’s conclusion that




                         [J-41D-2017] [OAJC: Saylor, C.J.] - 10
Wolfe’s “Sixth Amendment jury trial rights were nonetheless impaired because a

sentencing judge redundantly found this same fact by a lesser burden of proof”).

Nonetheless, the Wolfe majority found the statutory framework unenforceable “in any

respect”. Wolfe, 140 A.3d at 662 n.6. Yet, herein, the OAJC dismisses the same proof-

at-sentencing provisions as merely “awkward” or “superfluous,” and contends that “no

proof of any facts is required at sentencing.” OAJC at 4. The OAJC thus transforms the

“core” defects in Wolfe into mere gratuities today.

         Finally, the OAJC’s severance analysis is irreconcilable with that employed in

Wolfe. The OAJC individually dissects the various subsections of Section 9718 ―

(a)(1), (a)(2), and (a)(3) ― to see if they are inseparably connected, and ultimately able

to survive constitutional infirmity.   This approach, however, is in direct conflict with

Wolfe, which, as noted above, looked at the entire statute and struck it in its entirety.

Wolfe, 140 A.3d at 663 (finding “Section 9718 is irremediably unconstitutional on its

face, non-severable, and void”). Indeed, the dissenters in Wolfe offered the very same

individualized approach taken by the OAJC today, distinguishing the other criminal

offenses referred to in Section 9718, and calling out the very subsection we address

today:

               While the triggering fact for the mandatory minimum
               sentence under Section 9718 is, in this case, the same fact
               that is an element of the underlying criminal offense at
               Section 3123(a)(7), the vast majority of other criminal
               offenses referred to in Section 9718 follow the factual
               situation which gave rise to Alleyne, in that the fact that
               triggers the mandatory minimum sentence is independent of
               the facts constituting the elements of the underlying criminal
               offense. Indeed, of the 21 criminal offenses referenced in
               Section 9718(a)(1) and (2), only three, 18 Pa.C.S. §
               3123(a)(7), (b) and (c), subsume the same factual predicate
               as that required for imposition of the mandatory minimum
               sentence. Additionally, I note that the convictions themselves
               of four offenses, 18 Pa.C.S. § 121(c) and (d), 18 Pa.C.S. §
               3125(a)(7), and 18 Pa.C.S. § 3125(b), serve as the


                          [J-41D-2017] [OAJC: Saylor, C.J.] - 11
              necessary trigger for the mandatory minimum sentences
              provided in Section 9718(a)(3). Respecting this last situation,
              the issue of the validity under Alleyne of a mandatory
              minimum sentence imposed simply on the basis of the
              conviction of an underlying crime is raised in a petition for
              allowance of appeal that is currently before our Court in
              Commonwealth v. Resto, 774 MAL 2015.
Wolfe, 140 A.3d at 665 n.3 (Todd, J., dissenting).

       Yet, the majority in Wolfe firmly rejected this approach on the basis of its

conclusion that Section 9718(c)’s overarching requirement of judicial fact finding was

unconstitutional:

              [W]e believe that our analysis is straightforward and rests on
              far firmer foundation than the dissent’s position that small
              segments of a statute that is otherwise irreparably
              unconstitutional on its terms should be preserved on account
              of an anomaly, and despite suffering from the same, integral,
              explicit statutory directive for sentencing courts to perform
              what is now unconstitutional judicial fact finding.
Wolfe, 140 A.3d at 661 n.5 (emphasis added); see also id. at 662 n.6 (offering, in

rejecting the dissenters’ harmless error analysis, that “a finding of harmless error would

sanction a residual longevity in small segments of an unseverable statute requiring

unconstitutional actions on the part of judicial officers.” (emphasis added)). The “small

segments” the Court dismissed as an apparent irrelevancy in Wolfe are the sections the

OAJC strives to preserve today.

       Plainly, Wolfe’s rationale and the OAJC’s approach sub judice cannot both stand.

Wolfe’s emphatic unconditional language directly contradicts the OAJC’s assertion that

“some passages of Wolfe are written in overbroad terms to the degree that they

disapprove Section 9718 as a whole,” its claim that Wolfe used “loose language,” and

its urging that the decision “is to be read against its facts.” OAJC at 6-7. On the

contrary,   Wolfe’s   all-encompassing     approach    was    unmistakable.      Perhaps

acknowledging the same, the OAJC continues that, “even if the relevant references to



                         [J-41D-2017] [OAJC: Saylor, C.J.] - 12
Section 9718 as a whole were not dictum, the doctrine of stare decisis does not apply to

pronouncements that are not adequately supported in reason.”              OAJC at 7.      I

wholeheartedly agree with this sentiment, but the OAJC’s concession is too narrow. Its

post hoc rewrite of Wolfe is unsupportable ― we should either continue to follow

Wolfe’s misguided construct and grant relief, or overrule that decision in toto. Given

that there is no constitutional violation to correct here (nor was there in Wolfe), the law

commands the latter. Indeed, it is seldom that we are so rapidly confronted with the

error of a decision. But when we are, we should acknowledge it, and not work around it,

thereby perpetuating our mistake.

      For all of these reasons, I concur only in the result reached by the OAJC.

      Justice Dougherty joins this concurring opinion.




                         [J-41D-2017] [OAJC: Saylor, C.J.] - 13
