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HomeMy WebLinkAboutCP-21-CR-2480-2003 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MILTON D. WASHINGTON, SR. : CP-21-CR-2480-2003 IN RE: APPLICABILITY OF MANDATORY MINIMUM SENTENCE OPINION AND ORDER OF COURT Bayley, J., November 18, 2004:-- Defendant, Milton D. Washington, Sr., is charged with a count of unlawful delivery of a Schedule II, controlled substance in violation of 35 P.S. Section 780- 113(a)(30). The offense is a felony with a maximum penalty of five years imprisonment. 35 P.S. Section 780-113(f)(2). The Commonwealth filed a Notice of Mandatory Sentence pursuant to 18 Pa.C.S. Section 6317, which requires a minimum sentence of not less than two years if the offense was committed within 250 feet of the real property on which is located a playground. On July 7,2004, defendant was convicted by a jury. The evidence at trial was that on July 30, 2002, in the Borough of Carlisle, defendant sold crack cocaine to an undercover officer for $50. A pre-sentence investigation has been completed. The Commonwealth seeks a sentencing hearing to determine if the offense occurred within 250 feet of a playground, thus triggering a mandatory minimum sentence of two CP-21-CR-2480-2003 years.1 Defendant maintains that a sentencing hearing should not be conducted, arguing that to trigger the mandatory minimum sentence of two years requires a jury to find beyond a reasonable doubt that the offense occurred within 250 feet of a playground. The jury was not asked to make such a finding, nor was the playground provision charged in the information. The Crimes Code provides at 18 Pa.C.S. Section 6317: (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 1 Defendant's prior record score is 4. Under sentencing guidelines the mitigated range minimum sentence is nine months, the standard range 15-21 months, and the aggravated range 27 months. -2- CP-21-CR-2480-2003 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. (Footnote omitted.) (Emphasis added.) In Blakely v. Washington, 542 U.S. _,159 L.Ed.2d 403,124 S.Ct. 2531 (2004), the defendant was accused of first degree kidnapping. He pled guilty to second degree kidnapping involving domestic violence and use of a firearm. In the state of Washington, a second degree kidnapping is a Class B felony punishable by up to ten years imprisonment. However, the standard range for the Blakely sentence was 49-53 months. The sentencing judge was permitted by statute to impose a sentence above the standard range only upon a finding of "substantial and compelling reasons justifying an exceptional sentence." Following a hearing, the sentencing judge found that Blakely had acted with deliberate cruelty which was a basis for departure from the standard -3- CP-21-CR-2480-2003 range. A sentence of 90 months was imposed which was 37 months beyond the standard range. Blakely's sentence was upheld in the state of Washington. It was reversed by the United States Supreme Court. The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000), that any fact which increases the penalty for a crime beyond the prescribed statutory maximum sentence must be submitted to a jury and proven beyond a reasonable doubt. In Blakely, the court stated that the "statutory maximum" for Apprendi purposes is the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." It is the maximum sentence which could be imposed without additional facts. In Blakely, the judgment of sentence was reversed because the facts supporting the sentence were not admitted by the defendant when he pled guilty. The Supreme Court made a distinction between the determinate sentencing scheme in the state of Washington and indeterminate sentencing schemes. It stated: Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence - and that makes all the difference insofar as judicial impingement upon the traditional role of the jury in concerned. In Blakely, the Supreme Court rejected an analogy to McMillan v. Pennsylvania, 477 U.S. 79,106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which involved a five year mandatory minimum sentence in Pennsylvania for possession of a firearm -4- CP-21-CR-2480-2003 during the commission of an enumerated felony pursuant to 42 Pa.C.S. Section 9712. In McMillan, the Supreme Court concluded that the Pennsylvania legislature could treat the visible display of a firearm during the commission of a crime as a sentencing factor warranting a mandatory five-year minimum sentence, rather than an element of the offense to be proven beyond a reasonable doubt. That is because the maximum sentence is not altered nor is a separate offense created calling for a separate penalty. As the Court stated, the statute: "[o]perates to divest the judge of discretion to impose any sentence of less than five years for the underlying felony; it does not authorize a sentence in excess of that otherwise allowed for that offense." Unlike the state of Washington, Pennsylvania has an indeterminate sentencing scheme where mandatory sentences and guideline sentences apply to minimum sentences and not to the maximum sentences.2 The statute at issue in the case sub judice, as applied to defendant, is similar to the firearm enhancement statute at issue in McMillan wherein a sentencing judge finds the facts that determine the applicability of a mandatory minimum sentence which does not result in an increase in the statutory maximum sentence. Neither Blakely or Apprendi apply.3 For the foregoing reasons, 2 A minimum sentence imposed cannot be more than one-half of the maximum imposed. 42 Pa.C.S. 9756. In the present case, the maximum sentence is five years and the mandatory minimum sentence, if applicable, is two years which requires a maximum sentence of at least four years. 3 The Superior Court of Pennsylvania has concluded that Blakely does not invalidate Pennsylvania's sentencing guidelines. Commonwealth v. Bromley, A.2d (Pa. Super. October 29, 2004). -5- CP-21-CR-2480-2003 the following order is entered. AND NOW, this ORDER OF COURT day of November, 2004, a sentencing hearing shall -6- CP-21-CR-2480-2003 be conducted in Courtroom Number 2, Cumberland County Courthouse, at 11 :00 a.m., Tuesday, November 30, 2004. By the Court, Edgar B. Bayley, J. John Dailey, Esquire For the Commonwealth Timothy L. Clawges, Esquire F or Defendant Probation Court Administrator :sal -7- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MILTON D. WASHINGTON, SR. : CP-21-CR-2480-2003 IN RE: APPLICABILITY OF MANDATORY MINIMUM SENTENCE ORDER OF COURT AND NOW, this day of November, 2004, a sentencing hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, at 11 :00 a.m., Tuesday, November 30, 2004. By the Court, Edgar B. Bayley, J. John Dailey, Esquire For the Commonwealth Timothy L. Clawges, Esquire F or Defendant Probation Court Administrator :sal