decided: June 27, 1985.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
JOSEPH ALLEN, APPELLEE
Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated February 8, 1984, entered at No. 41 March Term, 1983.
Eric B. Henson, Deputy Dist. Atty., Harriet R. Brumberg, Steven Cooperstein, Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Leonard Sosnou, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., joins in this opinion and files a concurring opinion.
[ 508 Pa. Page 115]
The issue in this appeal is the constitutionality of section 9714 of the Mandatory Minimum Sentencing Act ("Act"), 42 Pa.C.S. § 9714, which requires the imposition of a minimum sentence of five (5) years' total confinement upon persons convicted of certain violent felonies upon proof that the defendant has been previously convicted in a federal or state court of a crime of violence. For the reasons expressed in our decision in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), we conclude that Section 9714
[ 508 Pa. Page 116]
of the Act, like section 9712, 42 Pa.C.S. § 9712, satisfies the minimum requirements of due process.
Appellee Allen was arrested in connection with a barroom stabbing and charged with aggravated assault, reckless endangerment and possession of an instrument of crime. After a bench trial he was convicted of all charges. Prior to sentencing appellee filed a motion to bar application of the Act. The trial court, concluding that the prior conviction which triggers section 9714's mandatory sentencing provision was an element of the current offense required to be proven beyond a reasonable doubt, held section 9714 unconstitutional and declined to apply it. Appellee was sentenced to a term of eleven and one-half (11 1/2) to twenty-three (23) months in county prison to be followed by two (2) years probation. The Commonwealth has appealed that sentence.*fn1
Section 9714 of the Act,*fn2 entitled "Sentences for second and subsequent offenses," provides that any person
[ 508 Pa. Page 118]
convicted in a Pennsylvania court of a serious violent felony, as defined in subsection 9714(a), shall be sentenced to a minimum prison term of five (5) years if he or she has been previously convicted in a state or federal court of a serious crime of violence enumerated in subsection 9714(b). That prior conviction must have occurred within seven (7) years of the date of the instant offense, periods of incarceration excluded. Offenses arising from the same criminal episode as the instant offense are not "previous convictions" for purposes of section 9714.
Like section 9712 of the Act, 42 Pa.C.S. § 9712, section 9714 provides that the sentencing factor, here a prior conviction of a specified violent crime, is not an element of the offense and requires proof of the sentencing factor by a preponderance of the evidence.*fn3 42 Pa.C.S. § 9714(c). Cf. 42 Pa.C.S. § 9712(b). Thus for purposes of our due process analysis we find no significant difference between these two sections of the Act.
In Commonwealth v. Wright, supra, we held that the sentencing factor of section 9712, visible possession of a firearm during the commission of the crime, was not an element of the offense of which the defendant was convicted. We concluded that, in addition to the legislature's explicit statement that visible possession is not an element of the crime, visible possession does not meet the statutory
[ 508 Pa. Page 119]
definition of such an element, see 18 Pa.C.S. § 103, and does not alter the degree of guilt. Id., 508 Pa. at 34-36, 494 A.2d at 359. Rather, visible possession relates solely to sentencing and, if established, removes the discretion of the sentencing court to set a minimum sentence of less than five (5) years. Id., 508 Pa. at 38-40, 494 A.2d at 361. For the same reasons it is clear that a prior conviction under section 9714 is not an element of the offense and thus need not be proven beyond a reasonable doubt.
Section 9714 clearly states that "[p]rovisions of this section shall not be an element of the crime." 42 Pa.C.S. § 9714(c). Moreover, the prior violent felony conviction which triggers section 9714 does not satisfy the Crimes Code's definition of an "element of an offense," namely
[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.
The sections of the Crimes Code which define the felonies enumerated in section 9714(a) neither refer to prior convictions nor does a prior conviction establish the culpability required under those sections. See 18 Pa.C.S. §§ 2502(c), 2503, 2702(a)(1), 2901, 3121, 3123, 3301(a), 3701(a)(1)(i)-(iii). A prior conviction clearly does not negate an excuse or justification or a defense under the statute of limitations and does not establish jurisdiction or venue.
Finally, we reject the theory that section 9714 in effect creates a series of aggravated crimes of which a prior conviction is a material element. Section 9714, like section 9712, does not alter the degree of guilt of the crimes to which it applies or increase the maximum sentence which
[ 508 Pa. Page 120]
may be imposed for those offenses. Like section 9712, section 9714 is applicable to felonies of the first or second degree carrying maximum sentences of twenty (20) and ten (10) years respectively.*fn4 Section 9714 merely mandates a five (5) year minimum sentence, which may be greater or less than the minimum which might be imposed were the section not applicable. Moreover, like section 9712, the instant section applies only where the defendant is convicted of one of the offenses enumerated therein and thus relates solely to the sentencing proceedings. The finding of a prior violent felony conviction is a sentencing factor which removes the discretion of the sentencing court to set a minimum sentence of less than five (5) years. The legislature has thereby foreclosed the possibility of leniency to repeat violent offenders. A prior conviction for an offense described in subsection 9714(b), therefore, is not an element of the crime for which the defendant subject to section 9714 is to be sentenced, and need not be proven beyond a reasonable doubt.
We must also reject, as we did in Commonwealth v. Wright, supra, the notion that due process requires a higher standard of proof than a preponderance of the evidence in mandatory sentencing proceedings. As we indicated in Wright, in assessing the constitutionality of the 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." Id., 508 Pa. at 38-40, 494 A.2d at 361, citing Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982); Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 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).
[ 508 Pa. Page 121]
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.
Commonwealth v. Wright, supra, 508 Pa. at 38-40, 494 A.2d at 361.
See also id., 508 Pa. at 42, 494 A.2d at 363 (Larsen, J., joining and concurring). The interest of a convicted defendant subject to a section 9714 proceeding is identical.
The Commonwealth's interest in protecting the public, punishing violent repeat offenders and deterring violent crime is at least as great as the convicted defendant's interest in leniency. The risk of error, moreover, is minimal. The existence of a prior conviction is a simple historical fact which may be ascertained through official documents. We note also that the federal "dangerous special offender" statute, 18 U.S.C. § 3575, which also requires proof of prior convictions by a preponderance of the evidence, has been uniformly upheld by the federal courts. See United States v. Davis, 710 F.2d 104 (3d Cir. 1983); United States v. Schell, 692 F.2d 672 (10th Cir. 1982); United States v. Inendino, 604 F.2d 458 (7th Cir.), cert. denied 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Williamson, 567 F.2d 610 (4th Cir. 1977); United States v. Ilacqua, 562 F.2d 399 (6th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). Moreover, statutes similar to the federal statute have been held constitutional in the state courts. See Eutsey v. State, 383 So.2d 219 (Fla. 1980); State v. Piri, 295 Minn. 247, 204 N.W.2d 120
[ 508 Pa. Page 122]
(1973); State v. Wells, 276 N.W.2d 679 (N.D. 1979); State v. Sanders, 35 Or.App. 503, 582 P.2d 22 (1978). Thus we are convinced that the preponderance standard prescribed in section 9714 satisfies the minimum requirements of due process.
Accordingly, the judgment of sentence is vacated and the matter is remanded to the court of common pleas for resentencing pursuant to 42 Pa.C.S. § 9714.
Accordingly, the judgment of sentence is vacated and the matter is remanded to the court of common pleas for resentencing pursuant to 42 Pa. C.S. § 9714.
LARSEN, Justice, concurring.
I join in the majority opinion and further cite in support thereof my opinion in Commonwealth v. Wright, 508 Pa. , 494 A.2d 354 (1985).