PA Mandatory Minimum Sentences based upon age
The Pennsylvania legislature has enacted two laws that focus on age as a trigger to increase the penalty of a conviction for a crime in PA. These age-based mandatory minimums exist on the books, but are they constitutional and still “good law”?
In a recent Superior Court case (Commonwealth v. Widger) (filed August 13, 2020) this exact question was asked. The case gave us all good insight as to what mandatory minimums are constitutional and which ones may not be.
What age-based mandatory minimums exist in PA?
Contrary to popular belief, not all mandatory minimum sentences based on age surround sexual abuse or sex crimes. In PA, there are two laws that set out the age-based mandatory minimums. Here they are and this is what they say:
§ 9717. Sentences for offenses against elderly persons.
(a) Mandatory sentence.–A person under 60 years of age convicted of the following offenses when the victim is over 60 years of age and not a police officer shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) – not less than two years.
18 Pa.C.S. § 3121 (relating to rape) – not less than five years.
[]§ 3123 (relating to involuntary deviate sexual intercourse) – not less than five years.
18 P.S. § 3922 (relating to theft by deception) – not less than 12 months, but the imposition of the minimum sentence shall be discretionary with the court where the court finds justifiable cause and that finding is written in the opinion.
§ 9718. Sentences for offenses against infant persons.
(a) Mandatory sentence.–
(1) A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) – not less than two years.
18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating to rape) – not less than ten years.
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) – not less than ten years.
18 Pa.C.S. § 3125(a)(1) through (6) (relating to aggravated indecent assault) – not less than five years.
(2) A person convicted of the following offenses when the victim is less than 13 years of age shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2502(c) (relating to murder) – not less than 15 years.
18 Pa.C.S. § 2702(a)(1) – not less than five years.
(3) A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 3121(c) and (d) – not less than ten years.
18 Pa.C.S. § 3125(a)(7) – not less than five years.
18 Pa.C.S. § 3125(b) – not less than ten years.
Why would some age-based mandatory minimum sentences be unconstitutional and illegal in PA?
Great question, The controversy surrounds a relatively recent Supreme Court of the United States (SCOTUS) case called Alleyne v. United States and a later Supreme Court of Pennsylvania (SCOPA) case calledCommonwealth v. Wolfe.
In Alleyne, the SCOTUS held that pursuant to the Sixth Amendment of the United States Constitution,
[a]ny fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.
Alleyne v. United States, 570 U.S. 99, 103 (2013)
Clear parts of the law that are unconstitutional
As long as Alleyne remains good law in the United States (and for it not to be the SCOTUS and the SCOTUS alone would have to change its ruling, not merely SCOPA or any lesser court), then it is clear that all of Section 9717, (Sentences for offenses against elderly persons) is unconstitutional and illegal. There can be no legitimate debate about that. None of the triggering convictions require the government to prove beyond a reasonable doubt that the offender was less than 60 and the victim was over 60. Therefore, any time the government tries to enforce this age-based mandatory minimum, it flat out can’t.
Where it gets tricky
Section 9718 is not quite as straight forward. Here is why.
In Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) SCOPA wrote that the implications of Alleyne on the constitutionality of Section 9718(a)(1) and (c), broadly held that Section 9718 is “irremediably unconstitutional on its face, non-severable, and void.”
This small little bit of the Wolfe case that generally said Section 9718 is “irremediably unconstitutional on its face, non-severable, and void” created a good deal of litigation in the lower court. Typically, when a law is declared unconstitutional, the courts look for a way to separate the good from the bad. In other words, it looks to sever the bad part out and keep the non-offending part.
But in Wolfe, the majority opinion certainly plainly said that this could not be done. Now in this most recent case Commonwealth v. Widger, the Superior Court appears to be doing exactly what SCOPA said could not be done. It found that the underlying triggering convictions that did require proof of the age of the victim to a jury beyond a reasonable doubt remained constitutional. Despite what SCOPA said in Wolfe, this panel of the Superior Court did, in this case, sever the “good” from the “bad.”
After this new case Widger, there is a clear dispute between SCOPA and its writing in Wolfe and the Superior Court. It is very likely that if this Widger case is appealed it will provide a very good vehicle for specifically addressing whether or not Section 9718 is severable or not.
What is next for age-based mandatory minimums in PA?
If it is not severable, than none of the age-based mandatory minimum sentences in Section 9718 apply in PA. If Section 9718 is severable, then certain parts are still in force because the triggering offense requires the same exact proof required for the mandatory minimum (i.e., the age of the victim) to be proven beyond a reasonable doubt. This question as to whether or not you can simply scalpel out part of the law to save the rest will go on and on for the foreseeable future. It is vital that all criminal defense attorneys know this and challenge this, but very very few will.
If Widger is right the following mandatory minimums based on age will survive:
- 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) – not less than ten years. Only a conviction for §3123(a)(7) as age is element of the offense – no Alleyne violation
- 18 Pa.C.S. § 3121(c) and (d) – not less than ten years. Age is an element of this crime and therefore is not a violation of Alleyne
- 18 Pa.C.S. § 3125(a)(7) – not less than five years. Age is an element of this crime and therefore is not a violation of Alleyne
- 18 Pa.C.S. § 3125(b) – not less than ten years. Age is an element of this crime and therefore is not a violation of Alleyne
If Widger is right, the following age-based mandatory minimums will NOT survive (and therefore the government will not be able to seek them):
- 18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) – not less than two years. Age is not an element of this crime and therefore presumptively unconstitutional and illegal per Alleyne
- 18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating to rape) – not less than ten years. Age is not an element of these subsections and therefore presumptively unconstitutional and illegal per Alleyne
- 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) – not less than ten years. As to §3123(a)(1-5). Age is not an element of these subsections and therefore presumptively unconstitutional and illegal per Alleyne
- 18 Pa.C.S. § 3125(a)(1) through (6) (relating to aggravated indecent assault) – not less than five years. Age is not an element of this crime and therefore presumptively unconstitutional and illegal per Alleyne
- 18 Pa.C.S. § 2702(a)(1) – not less than five years. Age is not an element of this crime and therefore presumptively unconstitutional and illegal per Alleyne
Can’t the Judge just use a special verdict slip to prove the age by the jury?
Absolutely not. Shockingly, a lot of attorneys think this proper. It is not. The legislature would have to change the law to specifically make a statute where the age is an element of the crime. The court cannot usurp legislative function by presenting the jury with a special verdict slip. Commonwealth v. Mosley, 2015 PA Super 88, 114 A.3d 1072 (Pa. Super. 2015).
Conclusion
As you can see age-based mandatory minimums are a complete mess right now. This is why for any crime involving the elderly (over the age of 60) and involving any child (under the age of 18), you need the very best criminal defense attorney on your side. The difference could literally be years of your life. If your attorney is clueless and doesn’t argue this, then you will lose the right to challenge it forever. This is why you cannot mess around. You need to call us. We are on top of the law.
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