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COMMONWEALTH PENNSYLVANIA v. CLARENCE WILLIAM IRVING (11/08/85)

filed: November 8, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
CLARENCE WILLIAM IRVING, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal, at No. 3955-83.

COUNSEL

James P. Gannon, Media, for appellant.

Dennis C. McAndrews, Assistant District Attorney, Wayne, for Commonwealth, appellee.

Montemuro, Roberts and Bloom, JJ.*fn*

Author: Montemuro

[ 347 Pa. Super. Page 351]

On January 5, 1984, appellant pled guilty to two counts of aggravated assault. At a pre-trial conference prior to appellant's plea, the Commonwealth gave appellant notice of its intention to proceed according to the Mandatory Minimum Sentencing Act, 42 Pa.C.S. ยง 9712. Appellant informed the court of his intention to challenge the constitutionality of section 9712 of the Act. Following his guilty plea, appellant was sentenced to concurrent terms of five (5) to ten (10) years imprisonment on each count of aggravated assault and was ordered to pay restitution and costs of prosecution. Appellant's timely filed motion to modify sentence was denied and this appeal followed.

[ 347 Pa. Super. Page 352]

In the court below, the Honorable Clement J. McGovern, Jr., of the Court of Common Pleas of Delaware County, concluded that appellant had not waived his right to challenge section 9712 of the Act by pleading guilty to the aggravated assault charges. The court concluded he had standing to challenge the section, given appellant's early indication of his intention to do so and the Commonwealth's acquiescence thereto. Judge McGovern rejected the arguments that the section violates the separation of powers principle; that it constitutes cruel and unusual punishment; and that it violates equal protection. The court additionally decided, sua sponte,*fn1 and without basing its decision in this case on the issue, that the section denies substantive due process by permitting proof of an element (visible possession) of a crime to be made by a mere preponderance of the evidence.

Appellant first argues the court below erred in concluding that section 9712 of the Act does not unconstitutionally deny a defendant's right to equal protection.*fn2 We disagree.

The equal protection clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Pennsylvania Constitution require the state to afford its citizens equal protection of the laws. The

[ 347 Pa. Super. Page 353]

Commonwealth is not, however, absolutely restricted from treating different classes of people in different ways, so long as the differential treatment is not based on criteria wholly unrelated to the purpose of the legislative enactment. In Re Estate of Cavill, 459 Pa. 411, 415, 329 A.2d 503, 505 (1974) (citing Eisenstadt v. Baird, 405 U.S. 438, 446-47, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349, 358 (1972), quoting Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225, 229 (1971)).

When a legislative enactment is challenged on constitutional grounds it is presumed to be constitutionally valid. Commonwealth v. Covert, 322 Pa. Super. 192, 196, 469 A.2d 248, 250 (1983). Generally, regarding an equal protection challenge, differential treatment of a class of persons will not be deemed violative of equal protection rights if the differential treatment may be reasonably supported by facts justifying the distinction. Commonwealth v. Bottchenbaugh, 306 Pa. Super. 406, 411-12, 452 A.2d 789, 791-92 (1982) (citing Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 ...


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