Commonwealth v. Bizzel

107 A.3d 102, 2014 Pa. Super. 267, 2014 Pa. Super. LEXIS 4540
CourtSupreme Court of Pennsylvania
DecidedDecember 2, 2014
StatusPublished
Cited by45 cases

This text of 107 A.3d 102 (Commonwealth v. Bizzel) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bizzel, 107 A.3d 102, 2014 Pa. Super. 267, 2014 Pa. Super. LEXIS 4540 (Pa. 2014).

Opinions

[103]*103OPINION BY

SHOGAN, J.:

Appellant, Jermal Bizzel, appeals from the judgment of sentence entered on April 16, 2018, 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. § 6817 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 Syden-ham Street in South 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.

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 Al-ieyne 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, bn June 17, 2013, in the Alieyne decision, the Unit- ■ ed 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 [104]*104Here, Appellant filed a timely post-sentence motion challenging the constitutionality of the mandatory minimum in anticipation of the decision in 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, 623 Pa. 564, 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.

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
(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 [105]*105the 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 6814 (relating to sentencing and penalties for trafficking drugs to minors).

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Cite This Page — Counsel Stack

Bluebook (online)
107 A.3d 102, 2014 Pa. Super. 267, 2014 Pa. Super. LEXIS 4540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bizzel-pa-2014.