March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appellant
TIMOTHY D. EILAND Appellee
Appeal from the Judgment of Sentence July 10, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000234-2012
BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Lycoming County Court of Common Pleas, following the bench trial convictions of Appellee, Timothy D. Eiland, for possession of a controlled substance, possession of a controlled substance with the intent to deliver ("PWID"), and possession of drug paraphernalia. We affirm.
The relevant facts and procedural history of this case are as follows. On January 25, 2012, following a traffic stop, police discovered drugs on Appellee's person and drug paraphernalia in the rental vehicle Appellee was driving. The Commonwealth charged Appellee with various drug related offenses. At a bench trial on May 6, 2013, the court convicted Appellee of simple possession, PWID, and possession of drug paraphernalia. After trial, the Commonwealth issued notice of its intent to seek the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 6317 (mandating two year minimum sentence for defendant convicted of PWID where offense occurred within 1, 000 feet of school or within 250 feet of playground).
Appellee proceeded to sentencing on July 10, 2013. At sentencing, defense counsel argued imposition of the mandatory minimum sentence would be improper, in light of the United States Supreme Court's recent decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing mandatory minimum sentence for crime is considered element of crime to be submitted to fact-finder and found beyond reasonable doubt). After argument, the court permitted the Commonwealth to present testimony concerning where Appellee's offenses occurred in relation to a school and a playground. Thereafter, the court explained it found Appellee committed PWID within 1, 000 feet of a school and within 250 feet of a playground but refused to impose the mandatory minimum sentence under Section 6317, in light of Alleyne. (Sentencing Order, 7/10/13, at 1). The court sentenced Appellee to an aggregate term of fourteen (14) to twenty-eight (28) months' imprisonment, plus one year of probation. The Commonwealth timely filed a notice of appeal on July 25, 2013. On July 31, 2013, the court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely complied.
The Commonwealth raises one issue for our review:
WHETHER THE TRIAL COURT ERRED BY REFUSING TO IMPOSE THE MANDATORY MINIMUM SENTENCE REQUIRED BY 18 PA.C.S.A. § 6317 ("DRUG-FREE SCHOOL ZONES").
(Commonwealth's Brief at 8).
Our standard of review is as follows:
Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012), appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).
The Commonwealth argues the circumstances of this case are distinguishable from Alleyne because Alleyne involved a jury trial, and Appellee had a bench trial. The Commonwealth contends it established at sentencing, before the same judge who sat as fact-finder at Appellee's trial, that Appellee committed PWID within 1, 000 feet of a school and within 250 feet of a playground. The Commonwealth maintains the United States Supreme Court decided Alleyne prior to Appellee's sentencing, so the court was aware at sentencing a determination on whether Appellee's offense took place within those parameters had to be made beyond a reasonable doubt. The Commonwealth suggests the court rendered its sentencing finding that Appellee's PWID offense occurred within the requisite boundaries under a "beyond a reasonable doubt" standard. The Commonwealth concludes the court erred by refusing to impose the mandatory minimum, and this Court must vacate and remand for imposition of the mandatory minimum sentence per Section 6317. We disagree.
Section 6317 of the Crimes Code sets forth the mandatory minimum sentence at issue in this case, in relevant part, as follows:
§ 6317. Drug-free school zones
(a) General rule.-A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1, 000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:
(1) subject to this section; and
(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.
* * *
(b) Proof at sentencing.-The provisions of this section shall not be an element of the crime. Notice of the applicability of this section 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 evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.
18 Pa.C.S.A. § 6317 (emphasis added) (internal footnote omitted).
After Appellee's trial, but before sentencing, the United States Supreme Court announced its decision in Alleyne on June 17, 2013, expressly holding that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the jury and found beyond a reasonable doubt. Alleyne, supra at __, 133 S.Ct. at 2155-56, 2163, 186 L.Ed.2d at __ (explaining Sixth Amendment right to jury trial, in conjunction with Due Process Clause, requires that each element of crime be proved to jury beyond reasonable doubt).
This Court recently addressed Alleyne in connection with 42 Pa.C.S.A. § 9712.1 (mandating five year minimum sentence for defendant convicted of PWID when at time of offense, defendant was in physical possession or control of firearm), when physical control or possession of a firearm is treated as a sentencing factor and not as an element of the crime. Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013). In Munday, the court convicted the defendant at a bench trial of PWID and related offenses. At sentencing, the court imposed the mandatory minimum sentence per Section 9712.1. On appeal, the defendant challenged imposition of the mandatory minimum sentence. This Court explained:
Presuming the trial court followed the dictates of section 9712.1(c)[, providing applicability of Section 9712.1 shall be determined at sentencing by a preponderance of the evidence] (and we have no reason to presume otherwise), the determination of whether Appellant, at the time of the offense, was in physical possession or control of a firearm under Section 9712.1(c) was treated as a sentencing factor and not an element of the underlying drug offense. As such the trial court was only required to make such a finding based upon a preponderance of the evidence rather than based upon proof beyond reasonable doubt. … However, Alleyne undeniably establishes, despite our legislature's express statutory language to the contrary in this instance, that when a mandatory minimum sentence is under consideration based upon judicial fact[-]finding of a sentencing factor, that sentencing factor is, in reality, an element of a distinct and aggravated crime and, thus, requires it be proven beyond a reasonable doubt.
Because the 'sentencing factor' at issue was not determined by the fact[-]finder to have been proven beyond a reasonable doubt, Appellant's sentence violated the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment.
Id. at 666 (internal citations and quotations omitted). This Court held the imposition of the mandatory minimum sentence under Section 9712.1 was improper under Alleyne, and vacated and remanded for resentencing. Id. at 666-67. Compare Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory minimum sentence was proper where jury determined beyond reasonable doubt that appellant possessed firearms in connection with drugs; nevertheless, calling into question in light of Alleyne validity of statutes permitting court to increase defendant's sentence based on preponderance of evidence standard, including "drug fee school zone" statute at Section 6317).
Instantly, the court convicted Appellee at a bench trial of simple possession, PWID, and possession of drug paraphernalia. The court made no decision at trial on whether Appellee committed PWID within 1, 000 feet of a school or within 250 feet of a playground. See 18 Pa.C.S.A. § 6317(a). Rather, the court decided this point at sentencing, as a sentencing factor (see 18 Pa.C.S.A. § 6317(b)) but ultimately declined to impose the mandatory minimum sentence in light of Alleyne. Notwithstanding the Commonwealth's contention, nothing in the record suggests the court made its sentencing finding under the standard of beyond a reasonable doubt. (See Sentencing Order, 7/10/13, at 1-4.) Further, we reject the Commonwealth's attempt to distinguish Alleyne simply because Appellee had a bench trial instead of a jury trial. See Munday, supra. Because commission of PWID within 1, 000 feet of a school or within 250 feet of a playground would have subjected Appellee to a mandatory minimum sentence, the court should have made that finding at trial beyond a reasonable doubt per Alleyne. See Alleyne, supra; Munday, supra. Thus, the court's refusal to impose the mandatory minimum sentence per Section 6317 was proper. See id. See also Watley, supra. Accordingly, we affirm.
Judgment of sentence affirmed.