Argued May 6, 2014
Appeal from the order of the Superior Court at No. 566 MDA 2012 dated March 19, 2013 affirming the order of the Franklin County Court of Common Pleas, Criminal Division, at No. CP-28-CR-0000410-2011 dated October 12, 2011.
Trial Court Judge: Douglas W. Herman, President Judge.
Intermediate Court Judges: Mary Jane Bowes, Judge; Jacqueline O. Shogan, Judge; William Platt, Judge.
For Commonwealth of Pennsylvania, APPELLANT: Matthew Drew Fogal, Esq., Laura Jeanette Kerstetter, Esq.
For Dreama Marie Stotelmyer, APPELLEE: Ian Michael Brink, Esq., Franklin County Public Defender's Office.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE EAKIN. Former Chief Justice Castille and Former Justice McCaffery did not participate in the decision of this case. Messrs. Justice Baer and Stevens join the opinion. Mr. Chief Justice Saylor files a dissenting opinion in which Madame Justice Todd joins.
MR. JUSTICE EAKIN
This appeal by the Commonwealth raises the issue of whether a defendant is statutorily eligible, within the meaning of 42 Pa.C.S. § 9802, to receive a county intermediate punishment sentence when a mandatory minimum sentence applies under 18 Pa.C.S. § 7508. We conclude the Superior Court erred in holding such an
offender is eligible, and accordingly, reverse.
After state police seized over two and one-half pounds of marijuana from appellee's residence pursuant to a search warrant, appellee was charged with possession of a controlled substance with intent to deliver (PWID) and possession of drug paraphernalia. Appellee entered an open guilty plea to PWID, and the Commonwealth nolle prossed the remaining charge. After entry of the plea, the Commonwealth entered notice of its intent to seek application of the mandatory minimum one-year sentence of incarceration pursuant to 18 Pa.C.S. § 7508, which provides:
(a) General rule.--Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(1) A person who is convicted of violating section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, where the controlled substance is marijuana shall, upon conviction, be sentenced to a mandatory ...