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COMMONWEALTH PENNSYLVANIA v. DENNIS BANNISTER (05/21/85)

submitted: May 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS BANNISTER, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE JUNE 8, 1984 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 83-04-1408, 1409, 1410, 1412, 1413

COUNSEL

Daniel P. Alva, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cirillo

[ 345 Pa. Super. Page 179]

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County.

[ 345 Pa. Super. Page 180]

Appellant was sentenced to five to ten years in the State Correctional Institute in accordance with the Firearms provision of the Mandatory Sentencing Act, 42 Pa.C.S. § 9712. Appellant challenges the constitutionality of the Act, which in pertinent part provides:

§ 9712. Sentences for offenses committed with firearms

(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 at 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 ...


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