Com. v. Green

849 A.2d 1247

COMMONWEALTH of Pennsylvania, Appellee, v. Samuel GREEN, Appellant.

Superior Court of Pennsylvania.

Submitted January 12, 2004.

Filed April 30, 2004.

John Packel, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: JOYCE, OLSZEWSKI, and JOHNSON, JJ.

JOHNSON, J.

¶ 1 Samuel Green challenges his Judgment of Sentence of three to six years' incarceration followed by two years' probation under the applicable mandatory minimum statute, 18 Pa.C.S. § 7508, for possessing a controlled substance with intent to deliver, see 35 P.S. § 780-113(a)(30), and simple possession of a controlled substance, see 35 P.S. § 780-113(a)(16). See also 35 P.S. § 780-113(f)(1.1) (providing a maximum penalty of ten years' imprisonment and a maximum fine of $100,000 for a violation of § 780-113(a)(30) involving Phencyclidine). He contends that § 7508 offends the Pennsylvania Constitution. We find Green's arguments unavailing, and affirm his Judgment of Sentence.

¶ 2 At approximately 6 P.M. on August 28, 1999, a plainclothes officer and his partner observed Green accept currency from a black male, walk to a nearby stoop, and bend down and withdraw from a brown paper bag at least one small object. Green replaced the bag next to the steps, returned to where the black male was standing and handed him the object withdrawn from the bag. Based on these observations, the officers detained Green, retrieved the brown paper bag, and found within it a clear plastic bag containing twenty-four glass jars later found to contain phencyclidine (PCP). At the police station, a more thorough search of Green's person revealed four packets of crack cocaine and $72 in currency.

¶ 3 Green was arrested and charged with possessing a controlled substance with intent to deliver and simple possession. Green waived his right to a jury trial, and on March 1, 2002, appeared for trial. At trial, the arresting officer testified to the above account of the events in question. Green testified, as well, admitting that he was on the corner and claiming that he had, in fact, purchased four packets of crack cocaine from a seller who had fled at the approach of police. He also testified that he used cocaine approximately every other day. Green was convicted on both counts.

¶ 4 On May 10, 2002, Green filed as part of an omnibus supplemental motion a Motion to Bar Application of the Mandatory Minimum Sentence Statute on Grounds That the Statute is Facially Unconstitutional, Invalid and Inapplicable. A sentencing proceeding was held on May 22, 2002. At that hearing, Green presented evidence tending to show that he was dependent on narcotics. In so doing, he sought to have a fraction of the drugs apportioned to personal use under Commonwealth v. Carroll, 438 Pa.Super. 55, 651 A.2d 171 (1994), such that the remaining fraction of the total drugs recovered, ostensibly intended for distribution, would comprise less weight than required to incur application of the mandatory minimum provision found in 18 Pa.C.S. § 7508. The court denied Green's constitutional challenge to the mandatory minimum statute, declined to apportion the drugs confiscated from Green, and accordingly imposed the mandatory sentence prescribed by 18 Pa. C.S. § 7508.

¶ 5 Green timely filed a notice of appeal, and the trial court ordered him to file a statement of matters complained of on appeal pursuant to Pa.R.A.P.1925. This statement, too, was timely filed. The trial court filed its responsive Opinion on May 13, 2003, and now Green appeals, presenting the following question for our review:

Was not the imposition of a mandatory minimum sentence pursuant to 18 Pa. C.S. § 7508... in the instant case improper as the mandatory minimum sentencing statute is unconstitutional on its face, violating the due process, jury trial, and notice requirements of the Pennsylvania Constitution, Article I, § 6 and § 9, because it is triggered by notice given after conviction and applied by a sentencing judge making factual determinations by a preponderance of evidence, whereas the Pennsylvania Constitution requires adequate pre-trial notice, right to trial by jury for offense-related facts triggering a mandatory minimum sentence and the application of the "beyond a reasonable doubt" standard of proof by the trial factfinder for necessary factual determinations?

Brief for Appellant at 3.

¶ 6 Green's argument that 18 Pa.C.S. § 7508 violates the Pennsylvania Constitution proceeds along three paths. Before fully taking up our discussion of the merits of Green's arguments, we pause to commend both parties for scrupulously arguing the issues presented in the instant case, consistently with our Supreme Court's suggestions regarding presentation of Pennsylvania constitutional questions on appeal. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Only rarely do we have the privilege of entertaining such eloquent and thorough discussions. The quality of the briefs before us, however, cannot override our determination that, in effect, we already have decided conclusively the questions before us. Thus, our discussion need not probe nearly so deeply as Green might prefer.

¶ 7 The statute mandating specified minimum sentences in certain controlled substance cases provides, in relevant part:

§ 7508. Drug trafficking sentencing and penalties

(a) General rule.—Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

* * * * * *

(4) A person who is convicted of violating section 13(a)(14), (30) or (37) of the Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is methamphetamine or phencyclidine or is a salt, isomer or salt of an isomer of methamphetamine or phencyclidine or is a mixture containing methamphetamine or phencyclidine, containing a salt of methamphetamine or phencyclidine, containing an isomer of methamphetamine or phencyclidine, containing a salt of an isomer of methamphetamine or phencyclidine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:

(i) when the aggregate weight of the compound or mixture containing the substance involved is at least five grams and less than ten grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity....

* * * * * *

(b) Proof of sentencing.—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) Mandatory sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein....

18 Pa.C.S. § 7508. Green challenges this section under the Pennsylvania Constitution on grounds that he is entitled to a jury determination by proof beyond a reasonable doubt of facts triggering a mandatory minimum sentence under this section, instead of a court determination by a preponderance of the evidence of these facts as provided by § 7508(b). Green also maintains that § 7508(b)'s preponderance of the evidence standard violates Pennsylvania constitutional due process protections.

¶ 8 "Generally, sentencing courts are vested with great discretion and this Court will not vacate a sentence unless an abuse of that discretion occurs." Commonwealth v. Lawson, 448 Pa.Super. 445, 671 A.2d 1161, 1164-65 (1996). Moreover,

there is a strong presumption that legislative enactments are constitutional. For an act to be declared unconstitutional, appellant must prove that the act clearly, palpably and plainly violates the constitution. All doubts are to be resolved in favor of sustaining a statute; thus an appellant has the heavy burden of persuasion when challenging the constitutionality of a statute.

Commonwealth v. Nguyen, 834 A.2d 1205, 1208 (Pa.Super.2003) (internal quotation marks and citations omitted).

¶ 9 With his first argument, Green contends that "There Is A State Constitutional Right To Trial By Jury For Offense-Related Facts Triggering A Mandatory Minimum Sentence." Brief for Appellant at 18 (underscoring omitted). Although Green acknowledges that the appellate courts of this Commonwealth "have rejected claims that factual determinations triggering applicability of a mandatory minimum sentencing statute must be made by a jury," he contends that "these cases have not independently analyzed the right to trial by jury under the Pennsylvania Constitution, Article 1, § 6 and § 9." Brief for Appellant at 18. He fails, however, to address this Court's recent decision in Nguyen, which we find more than adequately refutes Green's claim that the Pennsylvania Constitution creates a more sweeping right to trial by jury than the United States Constitution.

¶ 10 In Nguyen, appellant challenged the application of the mandatory minimum sentence required by 42 Pa.C.S. § 9712 (Sentences for offenses committed with firearms), on the basis that § 9712 was unconstitutional under both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, §§ 6 and 9 of the...