Argued September 10, 2014
Appeal from the Order of the Chester County Court of Common Pleas, Criminal Division, dated December 17, 2013 at No. CP-15-CR-0001260-2013. Trial Court Judge: David F. Bortner.
For Pennsylvania District Attorneys Association, AMICUS CURIAE: Hugh J. Burns Jr., Esq.
For Commonwealth of Pennsylvania, APPELLANT: Nicholas J. Casenta Jr., Esq., Chester County District Attorney's Office, Thomas P. Hogan Jr., Esq.
For Kyle Joseph Hopkins, APPELLEE: John R. Merrick, Esq., David Blair Miller, Esq., Chester County Public Defender's Office, Leonard Sosnov, Esq.
For Defenders Association of Philadelphia, APPELLEE AMICUS CURIAE: Peter Rosalsky, Esq., Defender Association of Philadelphia.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
MADAME JUSTICE TODD
In this direct appeal, we address questions regarding the constitutionality and severability of 18 Pa.C.S. § 6317(a) -- which imposes a mandatory minimum sentence of two years total confinement upon a defendant for a conviction if a delivery or possession with intent to deliver a controlled substance occurs within 1,000 feet of, inter alia, a school -- in light of the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In that decision, the United States Supreme Court held that, under the Sixth Amendment to the United States Constitution, a jury must find beyond a reasonable doubt any facts that increase a mandatory minimum sentence. In the matter sub judice, the Commonwealth concedes that certain provisions of Section 6317 are unconstitutional in the wake of Alleyne. Nevertheless, the Commonwealth submits that those provisions are severable, and, thus, the statute is capable of application once the violative provisions are excised. While we do not question the legislature's wisdom or the necessity of severe penalties for those dealing in illegal drugs near our Commonwealth's schools, for the reasons that follow, we are constrained to conclude that the United States Supreme Court's decision in Alleyne renders Section 6317 unconstitutional and, further, that, in light of clear legislative intent, severance of the violative provisions from the statute is not permissible. Thus, we affirm the judgment of the trial court, which held Section 6317 to be unconstitutional and that its violative provisions were not severable.
The factual and procedural background of this matter is as follows. On March 27, 2013, the Pennsylvania State Police filed a criminal complaint against Appellee Kyle Hopkins charging him with various violations
of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § § 780-101 et seq. The charges arose from three incidents, which took place over three days in April 2012, during which Appellee sold heroin to a confidential informant in Kennett Square Borough and New Garden Township, Chester County, Pennsylvania. One sale allegedly occurred in a school zone. Appellee was held for court on all charges, which included three counts of Possession with Intent to Deliver a Controlled Substance, 35 P.S. § 780-113(a)(30); three counts of Criminal Use of a Communication Facility, 18 Pa.C.S. § 7512(a); three counts of Possession of a Controlled Substance, 35 P.S. § 780-113(a)(16); and three counts of Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32). Approximately two weeks later, the Chester County District Attorney's office filed a criminal information charging Appellee with the 12 counts noted above.
Anticipating the Commonwealth would seek the mandatory minimum sentence pursuant to 18 Pa.C.S. § 6317, on October 31, 2013, Appellee filed a Motion for Extraordinary Relief contending Section 6317 was unconstitutional. Judge David Bortner of the Court of Common Pleas of Chester County held a hearing on November 14, 2013. Five days later, the Commonwealth filed an amended criminal information to include notice that the Commonwealth sought the mandatory minimum sentence required by Section 6317. The trial court, however, granted Appellee's motion on December 17, 2013, declaring Section 6317 to be unconstitutional in its entirety.
The trial court reasoned that it was bound by the United States Supreme Court's decision in Alleyne, which held that facts which increase the mandatory minimum sentence are an element of the offense which must be submitted to the jury and found beyond a reasonable doubt. The court opined that Section 6317(b) placed facts determining the applicability of the mandatory minimum sentence in the hands of the sentencing court and that such determination was based upon the preponderance of the evidence in violation of Alleyne. Trial Court Order, 12/17/13, at 1 n.1. The court also rejected the Commonwealth's suggestion that the Alleyne defect could be cured by adding a special interrogatory to the verdict slip. Id. Six days later, the Commonwealth filed a notice of appeal to our Court.
Before our Court, the Commonwealth raises the following issue for our review:
Whether the trial court erred in concluding that 18 Pa.C.S.A. § 6317, titled, " Drug-Free School Zones", is unconstitutional in its entirety, based upon Alleyne v. United States, where those provisions of § 6317 that do not comply with Alleyne are clearly severable from the remainder of the statute?
Commonwealth's Brief at 5.
Before considering the arguments of the parties, we set forth a brief background of the law informing this appeal. As discussed more fully below, in 2013, the United States Supreme Court rendered its decision in Alleyne, in which it held that any
fact which increases a mandatory minimum sentence is an " element" of the crime, and not a " sentencing factor," and, thus, must be submitted to the jury pursuant to the Sixth Amendment to the United States Constitution.
The focus of the Alleyne challenge in this appeal is Section 6317 of the Crimes Code, entitled " Drug-free school zones" -- a statutory provision first enacted in 1997, which sets forth a mandatory minimum sentence of two years total confinement if delivery of, or possession with intent to deliver, a controlled substance occurs within 1,000 feet of a school, college, or playground. Section 6317 states in full:
(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.
If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).
(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.
(c) Authority of court in sentencing.--There shall be no authority for a court to impose on a defendant to which this section is applicable a lesser sentence than provided for in subsection (a), to place the defendant on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.
(d) Appeal by Commonwealth.--If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing
court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
18 Pa.C.S. § 6317.
While the present challenge is to the constitutionality of Section 6317, it is axiomatic that, even if certain provisions of a statute are deemed to run afoul of the federal or state Constitution, portions of the statute which are not so offensive may retain their viability through judicial severing of those sections from the sections that are unconstitutional. The General Assembly has expressed its intent with respect to the constitutional construction of statutes, and specifically severability, in Section 1925 of the Statutory Construction Act. 1 Pa.C.S. § 1925. Section 1925 provides:
The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925. With this legal background in mind, we turn to the arguments of the parties.
The Commonwealth first traces the evolution of the United States Supreme Court's case law regarding the constitutional necessity that a jury must consider any fact which increases the penalty for a crime. Offering the presumption that legislative enactments are constitutional, and that a statute will be found to be unconstitutional only if it clearly, palpably, and plainly violates the Constitution, the Commonwealth nevertheless concedes that Alleyne impacts Section 6317's proof at sentencing provision. In sum, the Commonwealth divides Section 6317's provisions into two categories -- procedural and substantive -- and contends that Alleyne calls into question only the procedural aspects of the statute. Thus, the Commonwealth's core position is not that, when held up against the mandate of Alleyne, the statute is constitutional in toto, but, rather, as only certain limited procedural provisions of the legislation run afoul of Alleyne, Section 6317 is severable and the substantive provisions remain viable.
The Commonwealth, noting public policy favors severability, points to the Statutory Construction Act, which offers the presumption of severability, unless either (1) the " valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; " or (2) the " remaining valid provisions, standing alone, are incomplete and are incapable of being executed" in accordance with the intent of the legislature. 1 Pa.C.S. § 1925. Building on this provision, the Commonwealth reasons that, with the removal of the " fact finding provisions" from the statute, the remaining valid provisions, standing alone, are complete and capable of being executed consistent with legislative intent.
Specifically, the Commonwealth suggests that subsection (b) of the statute and the proviso in subsection (a) -- " the sentencing court finds that" -- which places fact finding in the hands of the sentencing court are all that need to be severed from the statute to render it constitutional under Alleyne. The Commonwealth maintains, consistent with the presumption in favor of severability, that this minor excising of the procedural provisions allows the remaining substantive provisions to be capable of execution in accordance with legislative intent. Related thereto, the Commonwealth claims that to find a lack of severability would be to assume that the General Assembly would not have passed the mandatory minimum sentencing if it knew juries would determine operative facts, and stresses that the laudable goal of the statute was to protect the children in our communities from the evils of the illegal drug trade.
In further support of its severability argument, the Commonwealth urges that special or specific verdicts, which would be required to satisfy Alleyne, should not be rejected by our Court, as disapproving comments concerning special verdicts are either dicta, citing Commonwealth v. Samuel, 599 Pa. 166, 961 A.2d 57, 63-64 (Pa. 2008), or contained in plurality decisions, citing Commonwealth v. Jacobs, 614 Pa. 664, 39 A.3d 977 (Pa. 2012). The Commonwealth adds that the Pennsylvania Criminal Procedural Rules Committee has made proposals to standardize the practice of special verdicts in light of Alleyne, by suggesting amending Pa.R.Crim.P. 648 to allow for special verdicts. Commonwealth's Brief at 33-38 (citing Pennsylvania Bulletin, Volume 43, Number 44, November 2, 2013, at 6490-92). Thus, the Commonwealth concludes that the trial court erred in finding Section 6317 unconstitutional in its entirety, and contends that those provisions of the statute that do not comply with Alleyne are severable from the remainder of the statute.
Appellee responds that Section 6317 is triggered by a factual determination that the drug-related offense was committed within 1,000 feet of a school. Appellee explains that, under Alleyne, proof of the fact which brings about a mandatory minimum sentence must now be considered an " element of a distinct and aggravated crime," for which an accused has the right of a jury trial, application of the standard of proof beyond a reasonable doubt, as well as other protections. Appellee's Brief at 7 (citing Alleyne, 133 S.Ct. at 2162-63). Appellee further contends that, as this determination is now an element of the offense, an accused is entitled to a specific legal and factual allegation both in the complaint and in the information or indictment whenever the Commonwealth seeks a mandatory minimum sentence under Section 6317. According to Appellee, however, the legislature unambiguously provided in Section 6317 that this factual determination was not to be treated as an element of the crime and was to be determined at sentencing.
More specifically, Appellee maintains severability is not permissible as the remaining statutory provisions standing alone are incomplete and incapable of being executed in accordance with legislative intent. Appellee's Brief at 14-15 (citing 1 Pa.C.S. § 1925). Appellee points to six ways in which the provisions of Section 6317 are unconstitutional:
(1) " The provisions N shall not be an element of the crime." Subsection (b);
(2) " Notice of the applicability of this section shall not be required prior to conviction." Subsection (b);
(3) " The applicability of this section shall be determined at sentencing." ...