Pennsylvania Unconstitutional Mandatory Minimum Prison Sentencing Scheme

On December 2, 2014 Superior Court handed down the decision of Commonwealth v. Bizzel. On November 25, 2014 a different panel of Superior Court handed down the decision of Commonwealth v. Cardwell. In Bizzel, the defendant was found guilty of selling drugs in a drug-free school zone, in violation of 18 PA C.S.A. § 6317. He was sentenced to a mandatory minimum term of incarceration of 2 to 4 years. Defendant Cardwell was sentenced to a mandatory minimum term of imprisonment of 3 to 6 years pursuant to 18 PA C.S.A. § 7508 based upon the weight of the drugs he was found guilty of selling. These two companion cases address the mandatory minimum sentencing provisions of §§ 6317 and 7508 of the Pennsylvania Crimes Code.

In each case, at the time of sentencing, the trial court found by a preponderance of the evidence the necessary factual elements to trigger the respective mandatory minimum sentencing provisions and thereafter imposed the mandatory minimum sentence. In Cardwell, the proof introduced at the sentencing hearing, in accordance with §7508(B), was by a preponderance of the evidence that the aggregate weight of the drugs involved was higher than a certain amount. In the Bizzel, the evidence introduced at the sentencing was the distance in feet of the nearest school to the place where the defendant was found guilty of selling drugs.

On appeal, each defendant objected to the unconstitutional sentencing enhancement that Pennsylvania’s mandatory minimum sentencing floor allowed. That sentencing floor was determined to be unconstitutional in Commonwealth v. Miller, 2014 PA Super 214, (2014), Commonwealth v. Thompson, 2014 PA Super 106 (2014), and Commonwealth v. Newman, 2014 PA Super 178 (2014). Each of these cases relied upon Alleyne v. United States, 130 S. CT. 2151 (2013).

Alleyne stands for the proposition that any statutorily set minimal jail sentence is unconstitutional if a legislature requires a judge to impose a sentence based upon facts for which a defendant was not found guilty of beyond a reasonable doubt. “Facts that increase mandatory minimum sentences must be submitted to the jury and must be found beyond a reasonable doubt.” Alleyne at 2163.

The Newman and Miller courts rejected prosecutors’ arguments that specific facts may be submitted to the jury to determine, thus triggering a mandatory minimum sentence. The prosecutor had done so in those cases trying to avoid Alleyne. However the courts determine the legislature, in enacting the sentencing scheme, did not give the judge the ability to allow a jury to determine facts that the legislature required the judge to determine.  In both Bizzel and Cardwell, the counsel contested the prosecutor allowing the judge to instruct the jury to determine facts under the statute that the legislature previously required the court to determine at a lower burden of proof.

This so-called severing of sentencing responsibilities was disallowed in Miller, Newman, and Commonwealth v. Valentine, 214 PA Super. 220 (2014). Each of these cases discuss judicial/legislative responsibility, burden of proof, and judicial factual prerequisites. Because the judicial responsibilities are not severable, but inseparably connected to the sentencing statute, which has been determined to be unconstitutional, it must follow that those same essential and inseparable judicial responsibilities are also unconstitutional.

The Bizzel and Cardwell courts see no meaningful difference in any of the proposed sentencing schemes the prosecutor has offered. Submitting essential elements to a jury or excepting a stipulation from the defendant for the purposes of imposing a mandatory minimum sentence outside the statutory framework is still solely within the province of the legislature to create, allow, or except. It is not for the judge to abdicate its sentencing responsibilities.

In all of these cases the courts have been constrained to conclude that the trial courts are unconstitutionally imposing mandatory minimum sentences, no matter how the facts are achieved for sentencing consideration, because such procedures have been determined to be unconstitutional. In light of an unconstitutional sentencing scheme in the form of mandatory minimum sentences, no sentence under the process is proper or legal. Call me to discuss your case.

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