By Burt Rose
Com. v. Foster, 2011 WL 1124597, No. 7 EAP 2009 (3/29/11), was a Commonwealth appeal from an Opinion and Order of the Superior Court, 3450 EDA 2006, 960 A.2d 160 (Pa.Super.2008), vacating and remanding a Judgment of Sentence of the Philadelphia County Court of Common Pleas, Criminal Division, at CP–51–CR–0109521–2006. The Opinion by Justice Baer, announcing the Judgment of the PA Supreme Court (a plurality), has granted this Appellee the retroactive benefit of the Court’s decision in Commonwealth v. Dickson, 918 A.2d 95 (Pa.2007), which held that the mandatory minimum sentence required by 42 Pa.C.S. § 9712(a) for persons who visibly possess a firearm while committing certain crimes does not apply to unarmed co-conspirators, even though the appellee failed to preserve an objection on Dickson grounds to the imposition of his mandatory minimum sentence.
Dickson overturned twenty years of Superior Court precedent involving the mandatory minimum sentencing provision in 42 Pa.C.S. § 9712(a) (requiring courts to impose five-year minimum sentence for person convicted, inter alia, of robbery “if a person visibly possessed a firearm”), and held that unarmed co-conspirators are not subject to Section 9712(a)’s five-year mandatory sentence. The Appellee was just such an unarmed co-conspirator; Appellee never visibly possessed a firearm; he was sentenced to the mandatory minimum sentence; he did not object at trial in reliance on governing Superior Court case law; and, by the time Dickson was decided, his case was already on appeal. Dickson was decided four months later, and the Appellee sought application of Dickson on direct appeal to reduce his sentence.
A challenge to the legality of sentence need not be preserved and is never waivable. In re M.W., 725 A.2d 729 (Pa.1999). However, the DA argued that the Appellee’s sentence involved solely discretionary aspects, was therefore waivable and, in fact, was waived by the Appellee’s failure to raise this challenge in his post-sentence motions or in his Rule 2119(f) statement in the Superior Court. Justice Baer wrote that a defendant’s challenge to the imposition of a mandatory minimum sentence implicates the legality of that sentence. Therefore, Appellee’s failures to file post-sentence motions or a Rule 2119(f) statement did not foreclose his ability to raise a meritorious Dickson challenge for the first time before the Superior Court.
Justice TODD and Justice McCAFFERY joined the Opinion Announcing the Judgment of the Court. Chief Justice CASTILLE filed a concurring opinion in which Justice ORIE MELVIN joined. Justice SAYLOR filed a concurring opinion. Justice EAKIN filed a concurring opinion in which Mr. Chief Justice CASTILLE joined.
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