Com. v. Bizzel, J.

Superior Court of Pennsylvania

Com. v. Bizzel, J.

DecidedDecember 2, 2014

Docket2556 EDA 2013

StatusPublished

This text of Com. v. Bizzel, J. (Com. v. Bizzel, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Bizzel, J., (Pa. Ct. App. 2014).

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Opinion

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 J-S38045-14

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.

-2- J-S38045-14

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).

-3- J-S38045-14

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.

-4- J-S38045-14

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

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