ALLEYNE SENTENCING ISSUES GO TO THE LEGALITY OF SENTENCING AND ARE NOT WAIVABLE
The PA Supreme Court has decided the case of Commonwealth v. Barnes, No. 36 EAP 2015 (December 28, 2016), holding that where the mandatory minimum sentencing authority on which the sentencing court relied is rendered void on its face, and no separate mandatory authority supported the sentence, any sentence entered under such purported authority is an illegal sentence for issue preservation purposes on direct appeal.
Officers executed a search warrant for a residence where Barnes lived with his two younger brothers. The search of one of the bedrooms yielded a firearm, assorted drugs and drug paraphernalia. As a result, the Commonwealth charged Barnes with possession with intent to deliver (“PWID”), possession of a firearm prohibited, and other related charges. Barnes waived his right to a jury trial and proceeded to a bench trial.
The trial court found Barnes guilty of the crimes charged and sentenced him to 5 to 10 years’ imprisonment on the PWID conviction, which included a 5-year mandatory minimum sentence pursuant to statutory authority and based on the trial court’s finding that Barnes was in constructive possession of drugs “in close proximity to” a firearm.
Barnes filed a notice of appeal. Four days later, the United States Supreme Court decided Alleyne v. United States, 133 S.Ct. 2151 (2013). (In Alleyne, the Supreme Court found that the Sixth Amendment to the United States Constitution requires that any fact increasing a punishment, even if it increases the minimum sentence, must be considered a part of an aggravated offense which a defendant has notice of before trial, and that fact must be found by the finder of fact beyond a reasonable doubt.)
Despite being filed more than two months after the Supreme Court’s pronouncement in Alleyne, Barnes did not raise an Alleyne challenge to his mandatory minimum sentence. The Superiror Court denied his appellate issues and he appealed to the Supreme Court where, for the first time, he challenged his sentence as having violated Alleyne.
Whether a challenge, on direct appeal, alleging that a mandatory minimum sentence violates Alleyne (requiring that any fact that increases a mandatory minimum sentence be deemed an element of an aggravated offense necessitating pre-trial notice to a defendant, the submission of the fact to a factfinder, and the factfinder’s conclusion that the fact has been established beyond a reasonable doubt), implicates the “legality” of a sentence for issue preservation purposes, and thus is not waivable?
Barnes’ Alleyne challenge implicated the legality of his sentence and would therefore be addressed, despite his failure to preserve it before the trial court or Superior Court. Judgment of sentence was vacated and remanded to the trial court for re-sentencing without application of the mandatory minimum.
Because Barnes raised this challenge for the first time before the Supreme Court, the Court directed the parties to address the threshold issue of whether Barnes’ failure to preserve the issue in the lower courts precluded the Supreme Court from granting relief. The Court noted that, typically, an appellant waives any claim that is not properly raised in the first instance before the trial court and preserved at every stage of his appeal. However, an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.
Barnes argued that his sentence was illegal and thus his failure to preserve his challenge is immaterial to the Supreme Court’s ability to afford him relief. Barnes took the position that a sentence is illegal for issue preservation purposes where the sentencing court lacked authority to avoid entering the particular sentence where that sentence is later found to be unconstitutional.
Accordingly, Barnes asserted that because Alleyne rendered the sentencing statute unconstitutional on its face, and the sentencing court had no choice but to impose the mandatory minimum sentence in accord with that statute, his sentence was illegal. In Barne’s view, a sentence derived from an unconstitutional mandatory minimum statute is illegal regardless of whether there was separate authority by which the sentencing court could have imposed an identical sentence. Although the Commonwealth agreed on the law, it differed in its application of that rule to the facts in Barnes’ case. To the Commonwealth, the sentencing court was not without authority to enter Barnes’ sentence because it possessed separate statutory authority in support thereof, i.e., a discretionary sentence pursuant to the sentencing guidelines, which authorized a maximum of ten years’ imprisonment.
Here, the Court concluded that Barnes received the benefit of a new rule of law announced while his direct appeal was pending which concluded that his mandatory minimum sentence was unconstitutional, despite his failure properly to preserve his challenge.
The Court also agreed that Barnes’ challenge implicated the legality of his sentence notwithstanding the separate, discretionary authority under which he could have received the same sentence. While this separate authority did, in fact, allow for the sentence Barnes received, it also authorized any lesser sentence that the sentencing court deemed appropriate, but was constrained from entertaining in his case.