A Crimes Code provision mandating a minimum prison sentence of two years upon a conviction for selling drugs in a “drug-free school zone” is unconstitutional, the Pennsylvania Supreme Court held in Com. v. Hopkins, __ A.3d __ (No. 98 MAP 2013, filed June 15, 2015). Kyle Hopkins was charged with various drug-related offenses, one of which involved selling heroin in a school zone. Anticipating the Commonwealth would seek the mandatory minimum sentence pursuant to 18 Pa. C.S. §6317, entitled “Drug-free school zones,” Hopkins filed a motion for extraordinary relief contending Section 6317 was unconstitutional under Alleyne v. U.S., 133 S.Ct. 2151 (2013), which held that any fact that increases a mandatory minimum sentence is an element of the offense that must be submitted to a jury and found beyond a reasonable doubt. The trial court agreed with Hopkins and declared Section 6317 unconstitutional because it charged the sentencing court, not the jury, with determining the applicability of the mandatory minimum sentence based upon the preponderance of evidence. The Commonwealth appealed to the Supreme Court, arguing that the trial court erred in declaring Section 6317 unconstitutional in its entirety since its void provisions are severable.
The Supreme Court affirmed in a 3-2 majority opinion authored by Justice Todd. The Court analyzed several provisions of Section 6317 – that the minimum sentencing provisions are declared not to be elements of the offense, that notice is not required prior to conviction, that fact-finding is conducted at sentencing by the sentencing court, that the applicable standard is preponderance of the evidence, and that the Commonwealth has the right to appeal where the imposed sentence violates the statute – and held that they are unconstitutional under Alleyne. The majority further held that the unoffending provisions of the statute (proximity to a school and age requirements), standing alone, are incomplete and incapable of being executed in accordance with legislative intent, which was to create a sentencing statute, not a new substantive offense. Finally, the Court rejected the Commonwealth’s argument that the constitutional deficiencies could be cured through the use of special verdicts or a general verdict with special interrogatories addressing proximity and age. The majority observed that it could not use such devices to transform Section 6317’s sentencing commands into a new substantive offense, contrary to express legislative intent.
Two justices dissented. Justice Eakin took issue with the majority’s severability analysis, which he believed focused too narrowly on Section 6317’s procedural language. He reasoned that the legislature’s goal was to establish drug-free school zones, which the Court should presume the legislature would have accomplished by enacting the substantive provisions without the offending procedural language. Justice Eakin also opined that the legislative goal can still be effectuated through the remaining valid provisions and existing rules of criminal procedure. Justice Stevens opined that the legislature would still have enacted Section 6317 even if it had known a jury was required to make the requisite fact-finding rather than a sentencing judge. By finding otherwise the majority ignored the statute’s manifest intent. Justice Stevens would excise the invalid provisions and allow juries to determine the applicability of Section 6317 beyond a reasonable doubt.