In Commonwealth v. Wolfe, 2014 PA Super. 288, the Pennsylvania Superior Court continued to deal with the consequences of Alleyne v. United States, 133 S.Ct. 2151 (2013), as it struck down the ten-year mandatory minimum pursuant to section 9718(a)(1) for crimes against minors. The statutory text of section 9718 is written in the same format as those statutes previously held unconstitutional by the Court in that one sub-section has the triggering fact, while another requires the fact to be found by the trial judge under the preponderance of the evidence standard.
The now-familiar holding from Alleyne is that when a mandatory minimum sentence is based on judicial fact-finding of a “sentencing factor,” the “sentencing factor” is in reality an element of a distinct and aggravated crime that must be proven beyond a reasonable doubt under the 6th Amendment. As you’ll recall from our previous discussion of the unconstitutionality of the drug-free school zone statute in Commonwealth v. Bizzell, 2014 WL 6756277 (found here), while Alleyne issues in Pennsylvania are considered under a harmless error standard, nevertheless the Court has found that the unconstitutional provisions cannot be severed from the statutes as a whole without the court illegally usurping the legislature’s role in making law. As a result, the Superior Court has struck down mandatory minimums and left any possible correction to the Pennsylvania State Legislature.
What is unique about the decision in Wolfe is that the sentencing factor that ultimately triggered the mandatory minimum corresponded to one of the elements of the crime for which the defendant was convicted.
In June 2013, Wolfe was convicted under two counts of involuntary deviate sexual intercourse (IDSI) , one count of unlawful conduct with a minor, four counts of statutory sexual assault, and one count of corruption of minors. Pursuant to section 9718(a)(1), as a listed offense undertaken against a child under the age of 16, each count of IDSI required the ten-year mandatory minimum. However, Wolfe was convicted under section 3123(a)(7), which states that a person is guilty of IDSI if he or she engages in deviate sexual intercourse with a complainant “who is less than 16 years of age.” As the Court pointed out, the Commonwealth was already required to establish beyond a reasonable doubt that the complainant was under the age of 16.
While a previous panel decision in Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014), held that there was no Alleyne issue under similar facts and some Superior Court judges have likewise argued that Alleyne should not present any obstacle in such cases, see e.g. Bizzell, 2014 WL 6756277 (Bowes, J., concurring), this panel obviously felt differently. The Wolfe panel remarked that the holding in Matteson had been properly abrogated by the Court’s more recent en banc decision in Commonwealth v. Newman, 2014 WL 4088805 (Pa. Super. 2014).
Because the format of section 9718 was indistinguishable from other statutes previously struck down as facially unconstitutional under Alleyne, including the en banc decision in Newman, the court held that the statute is void in its entirety.
Interestingly, Judge Bowes, in a concurring opinion, recommended that this decision be reviewed en banc as it addressed important questions of a complex sentencing regime that went beyond the briefing of the two parties. What we are seeing in these recent decisions is only the public side of what must be an ongoing conversation between the judges about the contours of Alleyne and Pennsylvania’s criminal sentencing regime. While the easiest answer may be the legislature rewriting the law, the more likely outcome is that this court, sitting en banc, or the Pennsylvania Supreme Court above it, will continue to delve into the constitutionality of Pennsylvania’s mandatory minimums for some time to come.