Matthew T. Mangino
Pennsylvania Law Weekly
September 9, 2014
Last month, the Pennsylvania Superior Court in Commonwealth v. Newman, No. 1980 EDA 2012, ruled that the imposition of a mandatory minimum sentence by a judge, not a jury, relating to the use of a gun in a drug transaction is unconstitutional. The ruling was not completely unexpected, and the breadth of its impact on individual cases may be limited, but it could nonetheless have a dramatic impact on Pennsylvania sentencing going forward.
James Newman was involved in the drug trade. After a couple controlled buys at his apartment in Montgomery County, police obtained a search warrant. They found a large quantity of drugs as well as a gun, according to the opinion.
Newman was arrested. In February 2012, he was convicted of possession with intent to deliver, simple possession, possession of drug paraphernalia, dealing in proceeds of unlawful activities, possession of an instrument of crime and criminal conspiracy.
Following the trial, the district attorney filed a notice of intent to seek mandatory sentence under 42 Pa.C.S.A 9712.1, which enhances the minimum sentence where a firearm is found in the vicinity of illegal drugs.
Newman was sentenced pursuant to Section 9712.1 to five to 15 years in prison. He appealed his conviction and sentence and the Superior Court affirmed the lower court's judgment.
But something interesting happened. Five days after the Superior Court ruling, the U.S. Supreme Court decided Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151 (2013). In light of Alleyne, the Superior Court granted Newman's request for an en banc reargument.
To fully appreciate the Superior Court's decision in Newman, it is imperative to look at the history of the U.S. Supreme Court's treatment of mandatory minimum sentencing.
In 1986, the high court upheld the application of Pennsylvania's mandatory five-year sentence for the visible possession of a firearm during a crime of violence.
In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the U.S. Supreme Court found that the visible possession of a firearm was not an element of the crime but rather a sentencing factor to be proven by a preponderance of the evidence.
In 2000, the U.S. Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the court found that sentence enhancements that affect the maximum sentence can no longer be decided by a judge—by a preponderance of the evidence—but must be determined by a jury—beyond a reasonable doubt.
The Apprendi court did not overrule McMillan. The court limited McMillan to cases that did not involve the imposition of a sentence more severe than the statutory maximum. Therefore, pursuant to Apprendi in Pennsylvania, a sentence that only effected the minimum sentence and did not enhance the maximum did not run afoul of the U.S. Constitution.
Two years later, the U.S. Supreme Court took up the issue again in Harris v. United States, 536 U.S. 545 (2002). The court made a point to reconcile McMillan and Apprendi. The high court found that there was a fundamental difference in the factual findings that were at issue in the two cases.
The Apprendi court ruled that any fact that extended a maximum sentence was the domain of the jury. "The same cannot be said of a fact increasing the mandatory minimum. ... As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the constitution," the court held.
The Newman opinion found that with Alleyne the U.S. Supreme Court finally scuttled the Apprendi and McMillan maximum/minimum distinction.
In Alleyne, the petitioner robbed a bank. The jury convicted the petitioner and indicated that he had possessed a firearm during a crime of violence, but did not indicate that he had brandished the weapon. The judge found by a preponderance of the evidence that the petitioner had brandished the firearm and applied the mandatory minimum sentence.
The Alleyne court found no basis for distinguishing between the minimum and maximum sentencing range and found that "raising the floor aggravated the sentence that was imposed just as raising the ceiling did, and that, therefore, any fact that served to aggravate the minimum sentence must be found by a jury beyond a reasonable doubt."
Following the reasoning in Alleyne, Judge Kate Ford Elliott, writing for the majority of the en banc Superior Court panel, found that Section 9712.1 can no longer pass constitutional muster. Ford said, "It permits the trial court, as opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was in close proximity to the drugs."
The court in Newman emphasized, "Under Alleyne, the possession of the firearm must be pleaded in the indictment, and must be found by the jury beyond a reasonable doubt before the defendant may be subjected to an increase in the minimum sentence."
Lancaster County District Attorney Craig Stedman said the ruling is "terrible." He hopes the Pennsylvania Supreme Court will take up the matter.
"In the short term, this is a huge blow to public safety and will have widespread ramifications for the law-abiding citizens of this county," he told the Lancaster New Era in an article posted Aug. 21.
"[The impact] will undoubtedly increase as many drug dealers and robbers who would otherwise go to state prison will now get county sentences," he said. "But this is what the court has ruled and we will have to adjust and hope the Supreme Court makes it right."
The Newman decision clearly prohibits the application of the mandatory minimum for drug cases through any means other than a jury. The impact of the decision may not be as broad as some would hope.
It appears the decision will only apply to defendants who had direct appeals or open petitions for post-conviction relief filed at the time of the decision. Those defendants whose appeals have ended and whose post-conviction claims have been resolved will not be eligible for relief.
Montgomery County Assistant District Attorney Robert Falin told the Associated Press his office is likely to appeal to the Pennsylvania Supreme Court.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner's Toll, 2010, was recently released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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