Appeal from the Order of the Superior Court at No. 1303 MDA 2009 dated November 18, 2010 affirming the Order of the Court of Common Pleas of Centre County at No. CP-14-CR-0001940-2008 dated July 7, 2009
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ.
ARGUED: November 29, 2011
In this matter of first impression we are asked to decide whether the Commonwealth's waiver of application of the school zone mandatory minimum sentence, under 18 Pa.C.S § 6317,*fn1 at the original sentencing precludes the
Commonwealth from subsequently seeking its application following the revocation of probation. For the reasons that follow, we conclude that the statutory scheme precludes the Commonwealth from requesting imposition of the mandatory minimum at resentencing after waiving its initial applicability. Accordingly, we affirm the order of the Superior Court.
On July 23, 2008, two men broke into Appellee Robert Mazzetti's apartment and stole marijuana and other items. At the time of the incident, Appellee was a college student residing in an off-campus apartment. Following an investigation into the burglary, the police arrested Appellee and charged him with, inter alia, possession with intent to deliver ("PWID") the stolen marijuana. 35 P.S. § 780-113(a)(30).*fn2 On March 2, 2009, pursuant to an agreement, Appellee pled guilty to PWID in exchange for an agreed upon sentence of twelve months of probation and the Commonwealth nolle prosequied the remaining charges. At the time of the plea, the Commonwealth agreed to waive the mandatory minimum sentence applicable to possession in a school zone under 18 Pa.C.S. § 6317(a). Consistent with the plea agreement, Appellee was sentenced to twelve months of probation.
Appellee violated his probation on March 8, 2009, when he attempted to steal two jars of honey from a grocery store. Appellee was cited for retail theft, which is graded as a summary offense. The Commonwealth filed a motion to revoke Appellee's probation and provided written notice of its intent to seek the school zone mandatory minimum for the PWID conviction. At the ensuing hearing, Appellee admitted to the violation of probation, which was a new criminal offense. The trial court deferred resentencing, allowing the parties to brief the issue of whether the Commonwealth can ask the court to impose the school zone mandatory minimum at resentencing following the revocation of probation.
Citing the absence of binding authority and the discretionary nature of sentencing following the revocation of probation, the court found that it was not required to impose the mandatory minimum sentence. The trial court explained that the cases relied upon by the Commonwealth, Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super. 2009), and Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), were inapposite. Accordingly, the trial court declined to apply the school zone mandatory minimum sentence and incarcerated Appellee for ninety days to one year. The Commonwealth appealed, arguing that the court committed legal error.
The Superior Court affirmed in a published opinion. Commonwealth v. Mazzetti, 9 A.3d 228 (Pa. Super. 2010). The Superior Court found that there was no case law directly on point, rejecting the Commonwealth's citations to Johnson, supra, and Infante, supra, as misplaced. The court did, however, analogize the case to Commonwealth v. Kunkle, 817 A.2d 498 (Pa. Super. 2003), appeal denied, 847 A.2d 1280 (Pa. 2004), which requires the Commonwealth to present evidence justifying the mandatory minimum sentence at the initial sentencing hearing. The Superior Court observed that, where the Commonwealth does not meet this burden, the court is not obligated to apply the mandatory minimum. In the instant case, the Commonwealth "did not provide notice of its intention to seek application of the mandatory minimum sentence under section 6317, nor did it present any evidence on this point" at the original sentencing. Mazzetti, 9 A.3d at 232. In fact, the Commonwealth agreed to waive the school zone mandatory minimum. Thus, the Superior Court concluded that the Commonwealth was precluded from seeking the mandatory minimum at resentencing and affirmed the trial court's decision.
The Commonwealth filed a petition for allowance of appeal with this Court, which we granted, limited to the following issue:
Did the Superior Court properly conclude that the Commonwealth is precluded from seeking application of the school zone mandatory minimum upon violation of a sentence of probation?
Commonwealth v. Mazzetti, 18 A.3d 1147 (Pa. 2011).
The Commonwealth continues to argue that Johnson, supra, and Infante, supra, are applicable and Kunkle is inapposite. It distinguishes Kunkle on the basis that it involved an attempt to remedy an evidentiary omission, a situation that is not present herein. Additionally, the Commonwealth contends that the "one bite at the apple mentality" utilized in Kunkle has been rejected by this Court and the United States Supreme Court when evaluating the applicability of school zone enhancements at resentencing hearings. See Commonwealth v. Wilson, 934 A.2d 1191 (Pa. 2007) (permitting the Commonwealth to present sentence enhancement evidence at a sentencing hearing on remand after the original sentence was vacated due to insufficient evidence supporting the enhancement); Monge v. California, 524 U.S. 721 (1998) (holding that the Double Jeopardy Clause does not preclude retrial in the non-capital sentencing context where the original sentence was reversed because there was insufficient evidence to support a recidivism sentence enhancement).
The Commonwealth notes that this Court has held that the revocation of probation places a defendant in the same position he was in at the time of the original sentencing. See Commonwealth v. Wallace, 870 A.2d 838 (Pa. 2005). Thus, upon revocation of probation, the sentencing court has all of the alternatives available at the time of the initial sentencing. See 42 Pa.C.S. § 9771(b); Wallace, 870 A.2d at 842-43. The Commonwealth also observes that the court is bound to apply a mandatory minimum sentence where applicable. See 42 Pa.C.S. § 9721(a.1). Based on the foregoing, the Commonwealth posits that the court was obligated to impose the school zone mandatory minimum.
The Commonwealth also urges this Court to protect the vital role of plea bargaining in the judicial system. It cites policy concerns, arguing that, if the Commonwealth is barred from seeking the mandatory minimum following the revocation of probation, prosecutors will refrain from offering probationary sentences. Thus, the Commonwealth submits that affirming the Superior Court's ruling will have a chilling effect on the plea bargaining process.
Appellee counters that the case law cited by the Commonwealth is inapposite. He concedes that following the revocation of probation, a court has the same alternatives that were available at the time of the original sentencing hearing. Appellee asserts, however, that "the school zone mandatory minimum sentence is never an 'option' for a court, but is only an option for the prosecutor." Brief of Appellee at 8. To this effect, Appellee observes that the mandatory minimum sentence set forth in section 6317 is not automatically triggered by the commission of a drug felony within 1,000 feet of a school; rather, it applies only where the Commonwealth elects the option and provides notice and evidence supporting its applicability. Since the ...