In Commonwealth v. Stotelmyer, 2015 WL 668038, a three-member controlling plurality of the Pennsylvania Supreme Court held that imposition of a county intermediate sentence is impermissible where the underlying drug crime conviction carries a mandatory minimum. At the outset, this case seems difficult to reconcile with existing Pennsylvania court cases addressing the United States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).
After state police seized over two pounds of marijuana pursuant to a search warrant, Stotelmyer was charged and eventually pled guilty to Possession With Intent to Deliver a Controlled Substance (PWID). After the entry of the plea, the Commonwealth entered its notice of intent to seek the mandatory minimum one-year sentence pursuant to 18 Pa.C.S. § 7508. However, the trial court gave the defendant a sentence of six months work release followed by six months of electronic home monitoring under the State’s county intermediate punishment plan, 42 Pa.C.S. § 9801 et seq. The Commonwealth appealed the sentence.
Basically, the county-intermediate punishment plan is afforded to individuals who have a history of non-violence with the purpose of allowing the criminal justice system to be efficient and community-minded in imposing sentences on certain, non-violent individuals. In Stotelmyer, the Court was confronted with the question of whether a person is statutorily eligible for a county intermediate punishment sentence when a mandatory sentence applies under 18 Pa.C.S. § 7508.
The general rule for sentencing, found at 42 Pa.C.S. § 9721(a), is that the trial court should consider and select a sentence of punishment from one of seven options, including probation, guilt without penalty, partial confinement, total confinement, a fine, county intermediate punishment, or state intermediate punishment. However, subsection (a.1) states that “unless specifically authorized under section 9763 (relating to a sentence of county intermediate punishment) […], subsection (a) shall not apply where a mandatory minimum sentence is otherwise provided by law.” A plain reading of the County Intermediate Punishment Act provides that individuals are only eligible for the more lenient sentencing regime if they (1) have not been convicted of a particular listed offense within the past ten years, or (2) have not been convicted of crimes subject to a mandatory minimum. 42 Pa.C.S. § 9802.
While at first glance it may seem straightforward that the mandatory minimum sentence in this case would preclude a sentence of county intermediate punishment, as recently as three years ago the Supreme Court expressly stated, albeit in dicta, in Commonwealth v. Mazzetti, 44 A.3d 58 (Pa. 2012) (per curiam) that “section 9721(a.1) acknowledges that 42 Pa.C.S. § 9763 authorizes the trial court to impose a sentence of county intermediate punishment even if there is an applicable mandatory minimum.” Similarly, the Court distinguished two other recent cases where they had allowed county intermediate sentences despite mandatory minimum requirements. The controlling plurality also pointed to section 7508(c), which prohibits a sentencing court from deviating from the applicable mandatory minimum sentence, because in this case the defendant could have received a state sentence and thus have been ineligible for the county intermediate punishment program. Finally, the Court reasoned that, although drug convictions were not expressly precluded from the intermediate program, the applicable sentencing code did not include drug crimes as being specifically authorized for the program.
Absent a specific statutory provision to the contrary, the Court held that a county intermediate punishment is not authorized in this case and the defendant is not eligible for any sentence other than the mandatory minimum.
The dissent pointed out that the various applicable statutes were ambiguous at best, and that the majority’s opinion was at the very least inconsistent, if not flatly contradictory, to the Court’s previous statements on the matter. Accordingly, the two dissenting Justices would have applied the rule of lenity to allow county intermediate sentences for convictions not expressly prohibited by the legislature.
The most curious aspect of the Court’s decision in this case is its failure to acknowledge what role, if any, the Alleyne-based decisions by the Pennsylvania Supreme Court and the Superior Court (see, e.g., here) have on the applicability of mandatory sentencing in this context. In Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014), the lower appellate court held that section 7508, the mandatory minimum statute for drug crimes, was unconstitutional in its entirety. Whether Stotelyer is an indication of the Court’s view of the constitutionality of mandatory drug sentences is difficult to tell at this point. This case was briefed and argued before the Superior Court’s decision in Fennell.
Because of two current vacancies on the high court, Stotelmyer is not controlling precedent. Nevertheless, lawyers and defendants can be sure that the law relating to sentencing remains in a state of flux after Alleyne. For the defendant in this case, that difference means a year in the state correctional system rather than the more forgiving work-release and electronic monitoring the trial court initially imposed. To speak to a Fairlie & Lippy lawyer about how this decision may affect your case, contact us here today.