Commonwealth v. Gordon

¶1concurring.

¶2I agree with Justice Castille’s position on waiver of issues related to the non-retroactive Apprendi case, and decline to join footnote eleven. Otherwise, I join the majority.

¶3concurring.

¶4I join the Majority Opinion, with the exception of the points I set forth below.

¶5Citing a non-binding Superior Court decision, the Majority states that Apprendi1claims raise questions implicating the “legality” of a sentence, rather than the discretionary aspects of the sentence. Majority Op. at 234, 942 A.2d at 175. I certainly agree that a valid Apprendi claim does not implicate discretionary sentencing. Moreover, there is precedent from this Court which supports the Majority’s broad statement. See Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351, 359 n. 32 (2005), cert. denied, 546 U.S. 860, 126 S.Ct. 139, 163 L.Ed.2d 141 (2005). However, in my Concurring Opinion in Roney, I noted my disagreement with the notion that a new constitutional sentencing rule from the U.S. Supreme Court, which the High Court says is not to apply retroactively, should operate to make a waived Apprendi-type claim non-waivable. I continue to believe that the Roneyfootnote obviously was wrong. Apprendi claims are not claims implicating the “legality” of a sentence, at least for purposes of waiver. See id., at 362-63 (Castille, J., concurring).

¶6On a related note, I respectfully disagree with the Majority’s characterization of Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127 (2003), as holding that “a sentence imposed pursuant to 42 Pa.C.S. § 9714 without the necessary proof that the prior crimes arose on separate criminal transactions is an illegal sentence.” Majority Op. at 250, 942 A.2d at 185. This author’s analysis in Bradleywas more nuanced. As I explained in that decision:

Moreover, if appellant’s claim proved to have merit, it would implicate the legality of his sentence. “An illegal sentence is one that exceeds the statutory limits.” Commonwealth v. Hunter, 768 A.2d 1136, 1144 n. 3 (Pa.Super.2001), quoting *256Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.Super.1998) (en banc). Appellant was convicted of aggravated assault upon Officer Reigle under 18 Pa.C.S. § 2702(a)(2), which is classified as a felony of the first degree. Id. § 2702(b). The Crimes Code permits a sentence of no more than twenty years of imprisonment for a first-degree felony. See 18 Pa.C.S. § 1103(1). Thus, the 25 to 50 year sentence imposed by the trial court for this offense would exceed the statutory limit and be illegal unless the “three strikes” provision of Section 9714 applies. Under these circumstances, we conclude that appellant’s claim implicates the legality of his sentence. Accordingly, he may raise the question as a matter of right and our jurisdiction over the claim is correspondingly secure. See 42 Pa.C.S. § 9781(a) (“The defendant or the Commonwealth may appeal as of right the legality of the sentence.”).

¶7Id. at 1131 (emphasis added). The analysis in Bradleyonly focused on whether there was “necessary proof’ of separate criminal transactions after first considering whether the sentence exceeded the statutory limit in the first instance. If so, then proper application of Section 9714 would be required to save an otherwise illegal sentence from illegality.

¶8Finally, I do not join footnote 11 of the Majority Opinion as I find its discussion unnecessary.

¶9With the exception of the above points, I join the Majority Opinion.