Commonwealth v. Butler (Dissenting Opinion)
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[J-18-2000] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : DAMON BUTLER, : : Appellee : 38 E.D. Appeal Docket 1998 Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division entered on September 14, 1998 at No. 9803-0354 1/1 ARGUED: February 1, 2000 DISSENTING OPINION MR. JUSTICE SAYLOR DECIDED: October 27, 2000 In general, the constitutionality of a penalty enhancement provision under the Due Process Clause of the Fourteenth Amendment to the United States Constitution turns upon whether the proof required for invoking the enhancement is deemed an element of the underlying offense or a sentencing factor. See Jones v. United States, 526 U.S. 227, 232, 119 S. Ct. 1215, 1219 (1999). The constitutional requisites of a jury trial and proof by the prosecution beyond a reasonable doubt apply to the substantive elements of a criminal offense. See id. Regarding sentencing factors, however, a judge may decide the issue, and the burden of proof may be relaxed. See McMillan v. Pennsylvania, 477 U.S. 79, 9193, 106 S. Ct. 2411, 2419-20 (1986). Although application of this distinction has generally depended upon differences of degree, see McMillan, 477 U.S. at 91, 106 S. Ct. at 2419, historically, recidivism has been treated as a sentencing factor, relating not to the commission of the offense, but to punishment. See Almendarez-Torrez v. United States, 523 U.S. 224, 243-44, 118 S. Ct. 1219, 1230-31 (1998). As such, the United States Supreme Court has treated recidivism as constitutionally distinct from other considerations used to enhance punishment, since a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. See Jones, 526 U.S. at 249, 119 S. Ct. at 1227. Notably, other jurisdictions have upheld provisions similar to Section 9714, relying upon the fact that recidivism is a sentencing factor. See, e.g., United States v. Kaluna, 192 F.3d 1188, 1195 (9th Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 1561 (2000); State v. Oliver, 745 A.2d 1165, 1171 (N.J. 2000); State v. Manussier, 921 P.2d 473, 488 (Wash. 1996). Indeed, the United States Supreme Court recently reaffirmed that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi v. New Jersey, ___ U.S. ___, 120 S. Ct. 2348, 2362-63 (2000)(emphasis added).1 While Section 9714 increases the maximum punishment for a specified class of crimes involving violence, it does so only upon proof of a prior conviction. See 42 Pa.C.S. 1 Although the Apprendi majority appears to express reservation in characterizing a recidivist enhancement as a sentencing factor since it increases the statutory maximum punishment, see id. at ___, 120 S. Ct. at 2362, the holding does not overrule prior decisions to this effect. In any event, at a minimum, Apprendi treats recidivist enhancements as an exception to the general rule requiring proof beyond a reasonable doubt at a trial by jury. [J-18-00] - 2 §9714(a)(1-2), (d), (g). In this respect, Section 9714, unlike Megan s Law,2 functions as a recidivist sentencing provision, which is permissible under current federal jurisprudence. Accordingly, I would hold that Section 9714 comports with federal due process guarantees. Mr. Justice Castille joins this dissenting opinion. 2 See Registration of Sexual Offenders, Act of Oct. 24, 1995, P.L. 1079, No. 24 (Spec. Sess. No. 1), §1, abrogated in part by Commonwealth v. Williams, 557 Pa. 285, 312-13, 733 A.2d 593, 608 (1999) (holding that the sexually violent predator provisions violated due process), cert. denied, ___ U.S. ___, 120 S. Ct. 792 (2000). [J-18-00] - 3
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