On February 6, the Lycoming County Court of Common Pleas applied the Supreme Court’s decision in Alleyne v. United States to Commonwealth v. Derr. In Derr the Commonwealth sought to amend the Criminal Information in order to include the weights of the drugs at issue, which would trigger a mandatory minimum sentence. The court’s opinion also applied to Commonwealth v. Williams, in which the Commonwealth sought to amend the Information to include the distances between drug sales and a school zone, which also would trigger a mandatory minimum sentence. The defendants objected to the amending of the Informations, arguing that the Supreme Court’s decision in Alleyne precluded the Commonwealth from amending the Informations in order to trigger the mandatory minimums.
Alleyne held that any element of a crime that triggers a mandatory minimum sentence must be submitted to a jury, as required by the Sixth Amendment. The statutes at issue in Derr and Williams, 18 Pa.C.S.A. §§ 7508 and 6317, respectively, explicitly state in subsections (b) that it is the role of the judge to determine the facts that would trigger the mandatory minimum, which is clearly unconstitutional under Alleyne. To get around this, the Commonwealth argued that subsections (b) of the statutes can be severed from the rest of the statute and that the issues can be submitted to a jury for factual determination.
The court refused to sever the statutes for two reasons. First, the court reasoned that since the procedure for determining the facts is unconstitutional under Alleyne, the remaining provisions of the statute relating to those determinations, including the imposition of the mandatory minimum sentence itself, is unconstitutional. Second, the court reasoned that deleting subsections (b) from the statute, which state that it is within the Commonwealth’s discretion whether or not to seek a mandatory minimum, would effectively transform the statute from a “discretionary” mandatory minimum into a “true” mandatory minimum, where there is no discretion as to whether or not to seek the mandatory minimum. For both of these reasons, the court was unwilling to sever the statutes, and was therefore unwilling to allow the Commonwealth to amend the Informations in order to seek the mandatory minimum sentences.
The Commonwealth intends to appeal this decision and we will provide updates as the cases progress.