Commonwealth v. Wright

494 A.2d 354, 508 Pa. 25, 1985 Pa. LEXIS 338

• Court: Supreme Court of Pennsylvania
• Decided: June 10, 1985
• Docket: 4, 28, 62, 101 E.D. Appeal Docket 1984 and 106 E.D. Appeal Docket 1983
• Status: Published

Opinions

OPINION

NIX, Chief Justice.

The issue in these appeals is the constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum sentence of five years’ total confinement upon persons found to have been in visible possession of a firearm during the commission of certain felonies. Each of the defendants was convicted of one of the section’s enumerated offenses, and in each case the Commonwealth sought to proceed under the section. In four of these cases the trial court, holding the section unconstitutional, declined to apply it.¹ In the remaining case a constitutional challenge to the statute was rejected and the defendant was sentenced to a five-year term of imprisonment.²

I.

Section 9712, entitled “Sentences for offenses committed with firearms,” provides as follows:

(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime and notice thereof 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 any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any 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 in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender 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.

(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.

(e) Definition of firearm. — As used in this section “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein. ;

42 Pa.C.S. § 9712.

The constitutional challenge to section 9712 centers upon subsection (b)’s provision that the issue of the applicability of the statute, i.e., whether the defendant visibly possessed a firearm during the commission of the offense, is to be determined by a preponderance of the evidence. In the four appeals in which the section was declared constitutionally infirm, the trial court concluded that the preponderance standard violates due process. The rationale for those decisions is that visible possession of a firearm is an element of the crime for which the defendant is being sentenced and thus requires proof beyond a reasonable doubt. If that theory is correct the statute clearly violates due process and we need proceed no further. If, however, we conclude that visible possession of a firearm is not an element of the crime, we must determine whether proof of that fact by a preponderance of the evidence satisfies the Due Process Clause.

A.

We begin by noting that the legislature explicitly provided in section 9712(b) the “[provisions of this section shall not be an element of the crime....” 42 Pa.C.S. § 9712(b). “Under our system of jurisprudence the legislature is charged with the responsibility of defining the elements of crimes.” Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975). Moreover, as defined in the Crimes Code, an element of an offense is

[s]uch conduct or such attendant circumstances or such a result of conduct as:

(1) is included in the description of the offense;

(2) establishes the required kind of culpability;

(3) negatives an excuse or justification for such conduct;

(4) negatives a defense under the statute of limitation;

or

(5) establishes jurisdiction or venue.

18 Pa.C.S. § 103.

Visible possession of a firearm is neither included in the definitions of the felonies enumerated in section 9712(a) nor does it establish the culpability required under those definitions. See 18 Pa.C.S. §§ 2502(c), 2503, 2702(a)(1), 2901, 3121, 3123, 3701(a)(1)(i)-(iii). Subsections (3), (4) and (5) of the statutory definition of “element of an offense” are clearly inapplicable. Thus, under Pennsylvania law, even in the absence of an explicit statement by the legislature visible possession of a firearm could not be considered an element of the crime of which a defendant subject to section 9712 has been convicted.

B.

It is argued, however, that the section in effect creates a new set of upgraded felonies of which visual possession is a material element. We disagree. Section 9712 does not alter the degree of guilt as to the crimes to which it may be applied. Third degree murder, robbery as defined in 18 Pa.C.S. § 3701(a)(1), kidnapping, rape and involuntary deviate sexual intercourse are felonies of the first degree subjecting the defendant to a maximum of twenty years’ imprisonment. Voluntary manslaughter and aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) are felonies of the second degree carrying a maximum sentence of ten years. Section 9712 neither provides for an increase in these maximum sentences nor authorizes a separate sentence. It merely mandates a minimum sentence of five years, which may be greater or less than the minimum sentence which might otherwise be imposed.³

Moreover, section 9712 applies only in the event the defendant is convicted of one of the offenses enumerated therein and thus relates solely to the sentencing proceedings. The section in question removes from the sentencing court the discretion to decide whether total confinement is appropriate and whether to set a minimum sentence of less than five years. Visible possession of a firearm during the commission of the crime is a sentencing factor which, if found, is dispositive of those issues. The legislature has thus foreclosed the possibility of leniency to such gun-users. Thus we conclude that visible possession is not an element of the crimes specified in the section.

We reject the argument that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), compel a contrary conclusion. In In re Winship, supra, the United States Supreme Court, after discussing the vital role of the reasonable, doubt standard in the American scheme of criminal procedure stated:

Lest there be any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Id. at 364, 90 S.Ct. at 1073.

Language in a subsequent decision of that Court, Mullaney v. Wilbur, supra, appeared to indicate that Winship was not limited to the elements of the crime as defined by state law. Id. 421 U.S. at 698, 699 n. 24, 95 S.Ct. at 1889, 1890 n. 24. Mullaney struck down a Maine homicide statute which provided for the single generic offense of felonious homicide with three “punishment categories” based on degree of culpability. Under the statute, as described by the Court, intent was not an element of the crime, having bearing only on the appropriate punishment category. As a result, “Maine could impose a life sentence for any felonious homicide — even one that traditionally might be considered involuntary manslaughter — unless the defendant was able to prove that his act was neither intentional nor criminally reckless.” Id. at 699, 95 S.Ct. at 1889 (emphasis in original; footnote omitted). The Court held that the Due Process Clause required the prosecution to prove absence of heat of passion or sudden provocation beyond a reasonable doubt when the issue was properly presented. Id. at 704, 95 S.Ct. at 1892.

In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), however, the Court declined to extend Winship to New York’s affirmative defense of “extreme emotional disturbance,” rejecting the argument that Mullaney held that “the State may not permit the blameworthiness of an act or the severity of the punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.” Patterson v. New York, supra at 214, 97 S.Ct. at 2329 (emphasis added). Rather the Court gave Mullaney a much narrower reading:

Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

Patterson v. New York, supra at 215, 97 S.Ct. at 2329.

While acknowledging the appropriateness of due process concerns in this area of law, the Court declined to intrude upon the State legislatures’ authority to define offenses:

Whenever due process guarantees are dependent upon the law as defined by the legislative branches, some consideration must be given to the possibility that legislative discretion may be abused to the detriment of the individual. See Mullaney v. Wilbur, 421 U.S., at 698-699 [95 S.Ct. at 1889-1890]. The applicability of the reasonable-doubt standard, however, has always been dependent on how a state defines the offense that is charged in any given case; yet there has been no great rush by states to shift the burden of disproving traditional elements of the criminal offenses to the accused.

Id. at 211 n. 12, 97 S.Ct. at 2327 n. 12 (emphasis added). Thus the Court refused to disturb its previous holdings that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Id. at 210, 97 S.Ct. at 2327 (emphasis added). Finding extreme emotional disturbance to be a separate issue which did not negative any elements of the crime which the State was required to prove, the Court rejected the due process challenge to the statute.

The Patterson Court cautioned, however, that the Due Process Clause precludes the states from discarding the presumption of innocence:

“[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 86 [36 S.Ct. 498, 501, 60 L.Ed. 899] (1916). The legislature cannot “validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.” Tot v. United States, 319 U.S. 463, 469 [63 S.Ct. 1241, 1246, 87 L.Ed. 1519] (1943). See also Speiser v. Randall, 357 U.S. [513], at 523-525 [78 S.Ct. 1332, 1340-1342, 2 L.Ed.2d 1460 (1958)]. Morrison v. California, 291 U.S. 82 [54 S.Ct. 281, 78 L.Ed. 664] (1934), also makes the point with sufficient clarity.

Id. at 210, 97 S.Ct. at 2327.

The United States Supreme Court decisions discussed above lend no support to the theory that visible possession should be deemed an element of the crimes punishable pursuant to section 9712. In making visible possession of a firearm a sentencing factor to be considered only after conviction of specified offenses, the legislature has in no way relieved the prosecution of its burden of proving guilt. Section 9712 creates no presumption as to any essential fact and places no burden on the defendant. Thus under Win-ship, Mullaney and Patterson the Due Process Clause does not require that visible possession be treated as an element of the underlying offense to be proved beyond a reasonable doubt.

II.

We must now consider whether proof by a preponderance of the evidence of a sentencing factor which, if established, mandates a minimum sentence of five years’ total confinement satisfies the requirements of due process. That the Due Process Clause is implicated in sentencing as well as guilt determination is no longer open to question.

t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128 [88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ]; Specht v. Patterson, 386 U.S. 605 [87 S.Ct. 1209, 18 L.Ed.2d 326 (1967)]. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v. Illinois, 391 U.S. 510, 521-523 [88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776 (1968) ].

Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (footnote omitted).

Although sentencing proceedings must comport with due process, the convicted defendant need not be accorded “the entire panoply of criminal trial procedural rights.” Id. at 358 n. 9, 97 S.Ct. at 1205 n. 9. As the United States Supreme Court has explained:

Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation to authority that due process is flexible and calls for such procedural protections as the particular situation demands____ Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

We are here concerned with the use of preponderance standard to determine the presence or absence of a statutory sentencing factor. The relevant due process considerations involved in determining the appropriateness of a standard of proof are cogently summarized in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982):

In Addington v. Texas, 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323] (1979), the Court, by a unanimous vote of the participating Justices, declared: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Id., at 423 [99 S.Ct. at 1808], quoting In re Winship, 397 U.S. 358, 370 [90 S.Ct. 1068, 1075, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.

Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society’s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” 441 U.S. at 423 [99 S.Ct. at 1808]. When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Ibid. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427 [99 S.Ct. at 1810], society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos(e) almost the entire risk of error upon itself.” Id., at 424 [99 S.Ct. at 1808]. See also In re Winship, 397 U.S., at 372 [90 S.Ct. at 1076] (Harlan, J., concurring).

The “minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” Vitek v. Jones, 445 U.S. 480, 491 [100 S.Ct. 1254, 1263, 63 L.Ed.2d 552] (1980). See also Logan v. Zimmerman Brush Co., ante, [455 U.S. 422] at 432 [102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982)]. Moreover, the degree of proof required in a particular type of proceeding “is the kind of question which has traditionally been left to the judiciary to resolve.” Woodby v. INS, 385 U.S. 276, 284 [87 S.Ct. 483, 487, 17 L.Ed.2d 362] (1966). “In cases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.’ ” Addington v. Texas, 441 U.S. at 425 [99 S.Ct. at 1809], quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism’d sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355 [92 S.Ct. 2091, 32 L.Ed.2d 791] (1972).

This Court has mandated an intermediate standard of proof — “clear and convincing evidence” — when the individual interests at stake in a state proceeding are both “particularly important” and “more substantial than mere loss of money.” Addington v. Texas, 441 U.S. at 424 [99 S.Ct. at 1808]. Notwithstanding “the state’s ‘civil labels and good intentions,’ ” id., at 427 [99 S.Ct. at 1810], quoting In re Winship, 397 U.S. at 365-366 [90 S.Ct. at 1073-1074], the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with “a significant deprivation of liberty” or “stigma.” 441 U.S. at 425, 426 [99 S.Ct. at 1809, 1810]. See, e.g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U.S. at 285 [87 S.Ct. at 487] (deportation); Chaunt v. United States, 364 U.S. 350, 353 [81 S.Ct. 147, 149, 5 L.Ed.2d 120] (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 [63 S.Ct. 1333, 1336, 1353, 87 L.Ed. 1796] (1943) (denaturalization).

Id. at 754-757, 102 S.Ct. at 1395-1397. (footnote omitted).

In assessing section 9712’s preponderance standard we must weigh the liberty interest of the defendant against the Commonwealth’s interest in imposing a mandatory sentence and determine how the risk of error should be distributed between those two parties in the sentencing proceeding. See id. at 754, 102 S.Ct. at 1395; Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979); Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The liberty interest of a defendant facing a sentencing proceeding pursuant to section 9712 is similar to that of other convicted defendants awaiting sentence. He stands convicted of a serious felony upon proof beyond a reasonable doubt. His right to remain free from confinement has thus been extinguished, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1976); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), and he is subject to punishment.

It is the province of the legislature to determine the punishment imposable for criminal conduct.⁴ Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958); Commonwealth v. Cano, 389 Pa. 639, 133 A.2d 800, cert. denied and appeal dismissed, 355 U.S. 182, 78 S.Ct. 267, 2 L.Ed.2d 186 (1957). The maximum penalties for the first and second degree felonies enumerated in section 9712 have been set at twenty (20) and ten (10) years respectively. 18 Pa.C.S. §§ 1103, 2502(c), 2503(c), 2702(b), 2901(b), 3121, 3123, 3701(b). The legislature has chosen to vest the courts with the discretion to prescribe within statutory limits the maximum and minimum sentence to be served. The defendant “has no substantive right to a particular sentence within the range authorized by statute.” Gardner v. Florida, supra 430 U.S. at 358, 97 S.Ct. at 1204. Thus regardless of whether section 9712 is invoked a defendant convicted of one of the crimes listed therein could be sentenced to a minimum sentence of five (5) years.

The effect of section 9712 is merely to limit the discretion of the sentencing court in the selection of a minimum sentence where it is determined that the defendant visibly possessed a firearm during the commission of the crime. The maximum permissible term of imprisonment remains unaffected. The defendant has no cognizable right to leniency. Thus although a finding that this particular sentencing factor is present may have serious consequences for the defendant, we do not believe that a defendant subject to a section 9712 proceeding is in a position significantly distinguishable from that of other convicted defendants during the sentencing phase.

The Commonwealth’s countervailing interest in the imposition of a mandatory five (5) year sentence, on the other hand, is unquestionably important. The Commonwealth seeks to protect the public from armed criminals and to deter violent crime and the illegal use of firearms generally, as well as to vindicate its interest in punishing those who commit serious crimes with guns. This societal interest is at least as compelling as the defendant’s interest in lenient punishment.

Having weighed the respective individual and public interests at stake, we conclude that it is reasonable for the defendant and the Commonwealth to share equally in any risk of error which may be present in the factfinding process. In the context of a section 9712 proceeding, moreover, the risk of error is slight. Visible possession of a firearm is a simple, straightforward issue susceptible of objective proof. There is scant potential that suspicion and conjecture will enter into the factfinder’s decision. In addition, evidence of visible possession is amenable to meaningful appellate review. Thus we are convinced that the preponderance standard satisfies the minimum requirements of due process as employed in the legislature’s mandatory sentencing scheme.

The decisions of the United States Supreme Court in which a heightened standard of proof has been mandated are clearly distinguishable. Unlike cases in which a fundamental liberty interest is at stake, e.g., Santosky v. Kramer, supra (involuntary termination of parental rights); Addington v. Texas, supra (involuntary commitment to mental institution); Woodby v. I.N.S., 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960) (loss of citizenship), here the defendant’s fundamental right, i.e., freedom from confinement, has already been forfeited. The determination to be made will at most have bearing on the duration of confinement, a question which has traditionally been committed to the discretion of the sentencing court. The fact that the finding of a discreet fact has been made crucial to the determination of the minimum sentence the defendant must serve does not magnify the stature of his individual interest. As we have indicated, the defendant has no right to avoid punishment and no right to a particular punishment within the pertinent statutory range. Thus we reject the notion that an intermediate standard of proof such as “clear and convincing evidence” is dictated by the circumstances of a section 9712 proceeding.

III.

For all of the above reasons,⁵ we hold that section 9712 satisfies the minimum requirements of the Due Process Clause. Since we have upheld the constitutionality of section 9712 the sentences in the appeals at Nos. 28, 62, 101 and 106 Eastern District Appeal Docket 1984 must be vacated and those cases remanded for resentencing pursuant to section 9712. The judgment of sentence in the appeal at No. 4 Eastern District Appeal Docket 1984 must be affirmed.

So ordered.

LARSEN, J., joins in this opinion and files a concurring opinion.

1 . In Commonwealth v. McMillan, No. 28 E.D., Appeal Docket 1984, appellee McMillan was convicted by a jury of aggravated assault, 18 Pa.C.S. § 2702(a)(1), and possession of instruments of crime generally, 18 Pa.C.S. § 907(a). He was sentenced to concurrent terms of three to ten and two and one-half to five years respectively.

In Commonwealth v. Peterson, No. 62 E.D. Appeal Docket 1984, appellee Peterson was convicted after a bench trial of voluntary manslaughter, 18 Pa.C.S. § 2503, and possession of instruments of crime generally. She received a sentence of one to six years on the manslaughter charge and a concurrent six to eighteen month sentence on the weapons count.

In Commonwealth v. Dennison, No. 101 E.D. Appeal Docket 1984, appellee Dennison was convicted by a judge of aggravated assault and possession of instruments of crime generally. Concurrent sentences of eleven and one-half to twenty-three months were imposed.

In Commonwealth v. Smalls, No. 106 E.D. Appeal Docket 1984, appellee Smalls was convicted after a bench trial of robbery, 18 Pa.C.S. § 3701(a)(1), and criminal conspiracy, 18 Pa.C.S. § 903, for which he was sentenced to concurrent four to eight year terms. He was also convicted of violation of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101 et seq., and reckless endangerment, 18 Pa.C.S. § 2705, for which he was sentenced to concurrent terms of two and one-half to five and one to two years respectively. Sentence was suspended on his conviction of possession of instruments of crime.

2 . In Commonwealth v. Wright, No. 4 E.D. Appeal Docket 1984, appellee Wright pleaded guilty to the charge of robbery and was sentenced to five years’ imprisonment pursuant to 42 Pa.C.S. § 9712.

3 . We note that the instant statute, unlike the sentencing statute construed in Commonwealth v. Glover, 397 Pa. 543, 547, 156 A.2d 114, 117 (1959), explicitly provides for a minimum sentence of five years, 42 Pa.C.S. § 9712(a).

4 . For this reason the argument that section 9712 violates the separation of powers principle by depriving the sentencing court of discretion may be rejected out of hand. We must also decline the invitation to hold that section 9712 improperly delegates this legislative power to the executive by giving the prosecution discretion whether to invoke the mandatory sentencing procedure. We perceive no distinction between such an exercise of discretion and the prosecutorial discretion exercised at any other stage of the criminal prosecution. The decision to accord the Commonwealth a measure of discretion as to whether to employ section 9712 in a given case was a proper exercise of legislative judgment.

5 . For additional arguments supporting this view see the concurring opinion of Mr. Justice Larsen, Commonwealth v. Wright, et al., 508 Pa. 25, 42-44, 494 A.2d 354, 363 (1985) (Larsen, J., joining and concurring), in which I join.