Commonwealth, Aplt. v. Resto, A.

Opinion

[J-41D-2017] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 86 MAP 2016 : : Appeal from the Order of the Superior Appellant : Court at No. 2125 MDA 2014 dated : 7/14/15, reconsideration denied 9/17/15 : vacating and remanding the judgment of v. : sentence of Schuylkill County Court of : Common Pleas, Criminal Division, at : No. CP-54-CR-0001840-2013 dated : 11/24/14 ANGEL ANTHONY RESTO, : : Appellee : ARGUED: May 9, 2017

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CHIEF JUSTICE SAYLOR DECIDED: February 21, 2018

In this appeal, the Court considers whether a mandatory minimum sentencing

provision that does not require proof of any aggravating fact violates the Sixth

Amendment per Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151 (2013).

At a jury trial, Appellee was convicted of, among other offenses, rape of a child.

See 18 Pa.C.S. §3121(c). At sentencing, the common pleas court implemented the

mandatory minimum sentence for that offense per Section 9718(a)(3) of the Sentencing

Code, which, in relevant part, prescribes as follows:

A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. §3121(c) and (d)—not less than ten years. 18 Pa.C.S. §9718(a)(3). On appeal, Appellee challenged the constitutional validity of his sentence under

Alleyne, which disapproves judicial fact-finding related to “facts that increase mandatory

minimum sentences.” Alleyne, 570 U.S. at 116, 133 S. Ct. at 2163. In response, the

Commonwealth repeatedly asserted that Section 9718(a)(3) does not run afoul of

Alleyne because, on its plain terms, the statute simply does not require a judge to

determine any facts. See, e.g., Brief for Appellee in Commonwealth v. Resto, No. 2125

MDA 2014 (Pa. Super.), at 12 (explaining that Ҥ9718(a)(3) does not require any

additional fact to be found. It imposes a mandatory minimum sentence upon conviction

of the enumerated crimes – plain and simple.”). The Commonwealth distinguished

other subsections of Section 9718 that had been found to be unconstitutional on the

basis that those provisions did, in fact, delineate aggravating facts. See, e.g., id.

(Ҥ9718(a)(1) requires a mandatory minimum sentence to be imposed where a person

is convicted of one of the enumerated crimes and the victim is found to be less than 16

years of age. It is the requirement of this additional fact that . . . runs afoul of Alleyne.”

(emphasis in original)).

The Superior Court affirmed by way of a memorandum decision. See

Commonwealth v. Resto, No. 2125 MDA 2014, slip op., 2015 WL 6874976 (Pa. Super.

July 14, 2015). The panel, however, did not address the Commonwealth’s specific

argument in its opinion. Rather, the panel observed that the intermediate court had

“systematically been declaring unconstitutional Pennsylvania’s mandatory minimum

sentencing statutes that permit a trial court, rather than a jury, to make the critical

factual findings for sentencing.” Id. at 8-9, 2015 WL 6874976, at *5 (emphasis added)

(citing Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2015), Commonwealth v.

Valentine, 101 A.3d 801, 812 (Pa. Super. 2014), and Commonwealth v. Cardwell, 105

A.3d 748, 751 (Pa. Super. 2014)). Apparently assuming that there were facts to be

[J-41D-2017] - 2 found under Section 9718(a)(3), the panel explained that Section 9718(c), which directs

sentencing judges to assess aggravating facts delineated in Section 9718(a), had been

found to be unconstitutional and non-severable. See id. at 9, 2015 WL 6874976, at *5

(citing Commonwealth v. Wolfe, 106 A.3d 800, 805 (Pa. Super. 2014), aff’d, 636 Pa. 37,

140 A.3d 651 (2016)).

We allowed appeal to consider the following issue as framed by the

Commonwealth:

Did the Pennsylvania Superior Court err in holding that the mandatory minimum sentence found in 42 Pa.C.S.A. § 9718(a)(3) [is] unconstitutional in light of Alleyne v. United States [570 U.S. 99], 133 S.Ct. 2151 (2013), despite that statutory provision calling for no facts to be found beyond simply being convicted of the enumerated offense? Commonwealth v. Resto, 636 Pa. 462, 144 A.3d 93 (2016) (per curiam). Our review of

this legal issue is plenary. See, e.g., Commonwealth v. Bullock, 590 Pa. 480, 487, 913

A.2d 207, 212 (2006).

The Commonwealth maintains its central position that there are no aggravating

facts to be found under Section 9718(a)(3), and therefore, Alleyne is inapposite.

Appellee, for his part, analogizes Section 9718(a)(3) to Section 9718(a)(1), which was

the subject of the Wolfe decision cited by the Superior Court. In this regard, Appellee

treats a conviction for an offense triggering a mandatory minimum sentence as the

equivalent of an aggravating fact. See Brief for Appellee at 1 (“In the Wolfe case itself

the factor triggering the mandatory sentence was also contained as an element of the

offense for which the jury convicted the defendant therein.” (emphasis added)).

Appellee also explains that this Court had found a proof-at-sentencing provision

analogous to Section 9718(c) to be non-severable in Commonwealth v. Hopkins, 632

Pa. 36, 61-62, 117 A.3d 247, 262 (2015).

[J-41D-2017] - 3 I. Section 9718(a)(3), On Its Terms, Does Not Implicate Alleyne

The Commonwealth is correct that Section 9718(a)(3) of the Judicial Code is

unlike the preceding subsection that was deemed unconstitutional in Wolfe, because

subsection (a)(3) requires no proof of any predicate or aggravating facts. Compare 42

Pa.C.S. §9718(a)(3) (“A person convicted of the following offenses shall be sentenced

to a mandatory term of imprisonment as follows . . .”), with id. §9718(a)(1) (providing the

same “when the victim is less than 16 years of age” (emphasis added)). As such,

subsection (a)(3) simply cannot run afoul of a constitutional rule disapproving judicial

fact-finding related to “facts that increase mandatory minimum sentences.” Alleyne, 570

U.S. at 116, 133 S. Ct. at 2163.

Contrary to Appellee’s position, a conviction returned by a jury to which a

mandatory minimum sentence directly attaches is not the same as an aggravating fact

that increases a mandatory minimum sentence. In any event, such a conviction 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. See id. at 117,

133 S. Ct. at 2163-64.1 While recognizing that Section 9718(c)’s prescription for “proof

at sentencing” may be awkward and, indeed, superfluous relative to the mandatory

minimum sentence imposed by Section 9718(a)(3) -- since no proof of any facts is

required at sentencing under that provision -- such idiosyncrasy has nothing to do with

Alleyne.

1 This case does not concern previous convictions considered as aggravation at sentencing. Notably, under prevailing federal jurisprudence, such prior convictions are not treated as a type of fact implicating Alleyne. See, e.g., Commonwealth v. Bragg, 133 A.3d 328, 332-33 (Pa. Super. 2016) (citing, indirectly, Almendarez-Torres v. United States, 523 U.S. 224, 243-47, 118 S. Ct. 1219, 1230-33 (1998)), aff’d, ___ Pa. ___, 169 A.3d 1024 (2017) (per curiam).

[J-41D-2017] - 4 II. Severability

Despite the conclusion that Section 9718(a)(3), in and of itself, does not implicate

Alleyne, the issue of whether the statute is invalid under that decision is more complex,

since other provisions of Section 9718 do offend the relevant constitutional norm. See,

e.g., Wolfe, 636 Pa. at 51-56, 140 A.3d at 660-63 (analyzing Section 9718(a)(1) and

concluding that the statute violates Alleyne). Accordingly, to the degree that the

unconstitutional provisions would be deemed non-severable, Section 9718 as a whole

would be void as a consequence of Alleyne.

Significantly, the remaining question is not whether Section 9718(c) should be

severed, as has been the issue in other cases. In those cases, Section 9718(c)

operated as an unconstitutional requirement for sentencing judges to determine the

aggravating facts delineated in subsection (a)(1). See id. at 53-54, 140 A.3d at 661.

However, as discussed above, subsection (c) does not function in this fashion in relation

to Section 9718(a)(3), given that subsection (a)(3) does not require any aggravating

facts to be found. Thus, the relevant concern here is whether the unconstitutional

provisions of Section 9718 -- i.e., those that do specify aggravating facts relative to

other mandatory minimum sentences -- may be severed.

In this regard, these provisions, subsections (a)(1) and (a)(2), are presumptively

severable. See 1 Pa.C.S. §1925 (prescribing, subject to enumerated exceptions, that

“[t]he provisions of every statute shall be severable”). Severance should be withheld

only if:

(1) the valid provisions of the statute are so essentially and inseparably connected with the void provisions that it cannot be presumed that the legislature would have enacted the remaining valid provisions without the voided ones; or (2) the remaining valid provisions standing alone are incomplete and incapable of being executed in accord with the intent of the General Assembly.

[J-41D-2017] - 5 Hopkins, 632 Pa. at 53, 117 A.3d at 257 (citing 1 Pa.C.S. §1925).

Here, the presumption of severability remains intact. Subsections (a)(1) and

(a)(2) are not inseparably connected with subsection (a)(3); rather, each subsection

prescribes a separate and independent array of mandatory minimum sentences.2

Furthermore, the remaining valid provisions -- subsections (a)(3), (b), (c), (d), and (e) --

are in no way incomplete. Rather, together they reflect a discrete series of crimes

implicating mandatory minimum sentences coupled with the entire implementing

scheme designed by the Legislature.

III. This Court’s Decision in Wolfe

Although the above reasoning disposes of the issue presented on appeal, the

Commonwealth also addresses language from this Court’s decision in Wolfe, which this

author wrote, disapproving of Section 9718 in its entirety. See, e.g., Wolfe, 636 Pa. at

56, 140 A.3d at 663 (“[W]e . . . find that Section 9718 is irremediably unconstitutional on

its face, non-severable, and void.”). Notwithstanding this language, the Commonwealth

contends that Wolfe should not be read to invalidate Section 9718 as a whole, because

the decision concerned only Section 9718(a)(1), which, unlike subsection (a)(3), did

premise the applicability of mandatory minimum sentences upon an aggravating fact.

I agree with the Commonwealth that some passages of Wolfe are written in

overbroad terms to the degree that they disapprove Section 9718 as a whole, when the

Court was not considering the materially distinct operation of subsection (a)(3).

2 As previously noted, subsection (a)(1) delineates a series of offenses subject to sentencing enhancements “when the victim is less than 16 years of age.” 18 Pa.C.S. §9718(a)(1). Subsection (a)(2) does the same relative to victims less than thirteen years of age. See id. §9718(a)(2). Subsection (a)(3) lists crimes subject to mandatory minimum sentences upon conviction without reference to a victim’s age or any other circumstance. See id. §9718(a)(3).

[J-41D-2017] - 6 Nevertheless, to prevent such loose language from establishing governing law, this

Court employs the principle that the holding of a judicial decision is to be read against

its facts. See, e.g., Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d 960, 966

(2011) (citing Commonwealth v. McCann, 503 Pa. 190, 195, 469 A.2d 126, 128

(1983)).3 Accordingly, Wolfe does not prevent the recognition that a precept concerning

aggravating facts does not apply to provisions of a statute requiring none. Moreover,

even if the relevant references to 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. See Mayhugh v. Coon, 460 Pa. 128, 135-36, 331 A.2d 452, 456 (1975) (“The

doctrine of stare decisis was never intended to be used as a principle to perpetuate

erroneous principles of law.”). Again, the legal analysis of Wolfe is directed to

mandatory minimum sentencing provisions that prescribe aggravating facts. See Wolfe,

636 Pa. at 51-56, 140 A.3d at 660-63.

The passage from Wolfe quoted above should have said that Section 9718 was

void in the relevant respect, or more precisely: “Section 9718[(a)(1)] is irremediably

unconstitutional on its face, [Section 9718(c) is] non-severable, and [Section 9718(a)(1)

3This Court has previously referenced the following comments offered by the United States Court of Appeals for the Seventh Circuit:

Judicial opinions are frequently drafted in haste, with imperfect foresight, and without due regard for the possibility that words or phrases or sentences may be taken out of context and treated as doctrines. We shouldn't like this done to our opinions and are therefore reluctant to do it to the opinions of other courts. No court, even a federal court in a diversity suit, is obliged to treat a dictum of another court (or, for that matter, its own dicta) as binding precedent.

Maloney v. Valley Med. Facilities, Inc., 603 Pa. 399, 418, 984 A.2d 478, 490 (2009) (quoting Northwestern Nat'l Ins. Co. v. Maggio, 976 F.2d 320, 323 (7th Cir. 1992)).

[J-41D-2017] - 7 is] void.” Id. at 56, 140 A.3d at 663. This is, in fact, the only understanding that

comports both with the issue accepted for review by the Court challenging only the

constitutionality of a sentence under subsection (a)(1), see Commonwealth v. Wolfe,

632 Pa. 446, 121 A.3d 433 (2015) (per curiam), and the linchpin of Wolfe’s reasoning

that the statute “must be treated as creating a ‘distinct and aggravated crime,’” Wolfe,

636 Pa. at 53, 140 A.3d at 661 (quoting Alleyne, 570 U.S. at 116, 133 S. Ct. at 2163). I

find it appropriate to render this acknowledgement and correction at this juncture.4

The order of the Superior Court is reversed, and the matter is remanded for

reinstatement of the judgment of sentence.

Justice Todd files a concurring opinion in which Justice Dougherty joins.

Justice Dougherty files a concurring opinion in which Justice Todd joins.

Justice Baer files a dissenting opinion.

4 According to the concurrences authored by Justices Todd and Dougherty, my acknowledgement that Wolfe was imprecise and overbroad relative to subsection (a)(3) somehow undermines Wolfe’s substantive analysis directed to subsection (a)(1). I reiterate, however, that Wolfe turned on the discrete interplay between subsection (a)(1)’s delineation of an aggravating fact and subsection (c)’s specifications that such fact “shall not be an element of the crime” and “shall be determined at sentencing,” 42 Pa.C.S. §9718(c). See Wolfe, 636 Pa. at 52, 140 A.3d at 660-61. Although the concurrences rest on the proposition that these legislative commands can be ignored by the judiciary, that position was rejected on developed reasoning in Wolfe. See id. at 52- 54 & n.5, 140 A.3d at 660-61 & n.5.

Responding to the concurrences’ criticism that I have failed to adequately distinguish subsection (a)(3) from subsection (a)(1), I can only say, once again, that subsection (a)(3) does not delineate any aggravating facts such as are required, under subsection (c), to be determined by a sentencing judge. Accordingly, although Wolfe’s substantive analysis applies to subsection (a)(1) as much today as at the time the decision was rendered, the reasoning does not extend to subsection (a)(3).

[J-41D-2017] - 8 Justice Mundy files a dissenting opinion.

Justices Donohue and Wecht did not participate in the consideration or decision

of this case.

[J-41D-2017] - 9