Apprendi rule in Pennsylvania

2015See Watley, supra; Matteson, supra; United States v. Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v. Mack, 729 F.3d 594 , (6th Cir. 2013) (same). _______________________ (Footnote Continued) constructs.

2014See Watley, supra; Matteson, supra; United States v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (Apprendi violation harmless); United States v. King, 751 F.3d 1268, 1279 (11th Cir.2014) (Alleyne violation harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir.2013) (same); United States v. Mack, 729 F.3d 594 , (6th Cir.2013) (same).

2019According to the Commonwealth, “[w]here the relevant fact is not contested by defendant at trial, there is not a credible Apprendi challenge.” Id. at 15 (citing Commonwealth v. Watley, 81 A.3d 108, 120-21 (Pa. Super. 2013) (en banc)).

2015See Watley, supra; Matteson, supra; United States v. Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v. Mack, 729 F.3d 594 , (6th Cir. 2013) (same). _______________________ (Footnote Continued) constructs.

2020The second is “when the sentence imposed is patently inconsistent with the sentencing parameter set forth by the General Assembly.” discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. 42 Pa.C.S. § 9781(a), (b). [J-26-2020] - 17 Id. (citing Commonwealth v. Shiffler, 879 A.2d 185 , 188–89 (Pa. 2005) (sentence exceeding statutory maximum intended by General Assembly); Commonwealth v. Aponte, 855 A.2d 800 , 802 n. 1 (Pa. 2004) (same, in context of Apprendi challenge); Commonwealth v. Andrews, 768 A

2014See United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011) (stating that an Apprendi error can - 14 - J-S41033-14 Andrews, 768 A.2d 309, 329 (Pa. 2001) (internal quotation marks and citation omitted).

2023See e.g., Washington v. Recuenoco, 548 U.S. 212, 218-22 (2006) -7- J-S22028-22 (finding failure to submit sentencing factor to the jury, like the failure to submit an element to the jury, is not structural error, and is thus subject to harmless error analysis); Cotton, 535 U.S. at 632-34 (holding Apprendi error harmless where evidence overwhelming and uncontroverted); Wolfe, 140 A.3d at 662 (acknowledging other courts have deemed Apprendi-based errors harmless, but declining to engage in harmless error analysis where “statute was itself found to be invalid and non- severable”).

2020See e.g., Washington v. Recuenoco, 548 U.S. 212, 218-22 (2006) (finding failure to submit sentencing factor to the jury, like the failure to submit an element to the jury, is not structural error, and is thus subject to harmless error analysis); Cotton, 535 U.S. at 632-34 (holding Apprendi error harmless where evidence 13 With regard to improperly admitted evidence, the Story Court explained that our courts employ three approaches to assess harmlessness.

2023See e.g., Washington v. Recuenoco, 548 U.S. 212, 218-22 (2006) -7- J-S22028-22 (finding failure to submit sentencing factor to the jury, like the failure to submit an element to the jury, is not structural error, and is thus subject to harmless error analysis); Cotton, 535 U.S. at 632-34 (holding Apprendi error harmless where evidence overwhelming and uncontroverted); Wolfe, 140 A.3d at 662 (acknowledging other courts have deemed Apprendi-based errors harmless, but declining to engage in harmless error analysis where “statute was itself found to be invalid and non- severable”).

2017See United States v. Cotton, 535 U.S. 625, 633 (2002) (holding no relief due on an Apprendi violation where the evidence that the defendants’ conspiracy involved at least fifty grams of cocaine base was “‘overwhelming’ and ‘essentially’ uncontroverted’”); Commonwealth v. Belak, 825 A.2d 1252 , 1256 n.10 (Pa. 2003) (concluding that failure to submit question to jury regarding whether victims were home during burglaries, when the defendant previously stipulated to that fact precluded relief based on Apprendi).

2025See Commonwealth v. Johnson, 961 A.2d 877, 881-82 (Pa.Super. 2008), appeal denied, 600 Pa. 774 , 968 A.2d 1280 (2009).

2023Here, Appellant made no admission as to the value of the stolen items in trial in open court, either herself or through her attorney.3 Unlike in Johnson, this ____________________________________________ 2 In its brief, the Commonwealth essentially adopts the reasoning of the trial court, particularly its reliance on Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008).

2025See Cunningham v. California, 549 U.S. 270, 275 (2007).

2014Cunningham, 549 U.S. at 283 (“[T]he statutory - 18 - J-A08035-14 maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”) (emphasis added); Commonwealth v. Belak, 825 A.2d 1252, 1256 (Pa. 2003) (finding no Apprendi violation where the defendant did not contest the facts underlying his burglary convictions at trial or at sentencing).

2024The first time the U.S. Supreme Court’s Recuenco decision was acknowledged by a Pennsylvania appellate court was in Commonwealth v. - 17 - J-E01002-24 Wolfe, 140 A.3d 651 (Pa. 2016) (“Wolfe II”).

2023See e.g., Washington v. Recuenoco, 548 U.S. 212, 218-22 (2006) -7- J-S22028-22 (finding failure to submit sentencing factor to the jury, like the failure to submit an element to the jury, is not structural error, and is thus subject to harmless error analysis); Cotton, 535 U.S. at 632-34 (holding Apprendi error harmless where evidence overwhelming and uncontroverted); Wolfe, 140 A.3d at 662 (acknowledging other courts have deemed Apprendi-based errors harmless, but declining to engage in harmless error analysis where “statute was itself found to be invalid and non- severable”).

2023See Commonwealth v. Hill, 238 A.3d 399 , 407 (Pa. 2020) (generally, “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal[,]” but challenges to the legality of sentences can be addressed on appeal even if they were not preserved before the trial court) (citation omitted); Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (Apprendi challenge to a sentence implicates legality of that sentence and cannot be waived on appeal). 8 We have reordered the issues for ease of review. -9- J-S08020-23 2.

2016See Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc) (citing Commonwealth v. Roney, 581 Pa. 587 , 866 A.2d 351 (2005), cert. denied, 546 U.S. 860 , 126 S.Ct. 139 , 163 L.Ed.2d 141 (2005)).

2025This may be why the four dissenting Justices in Almendarez-Torres, the case on which the Apprendi exception was ultimately based, described the exception as “illogical,” id. at 262 (Scalia, J., dissenting), and the Apprendi majority itself expressed that Almendarez-Torres may have been “incorrectly decided.” Apprendi, 530 U.S. at 489 . 9 But, the exception remains in force to this day, and there simply is no constitutionally-meaningful distinction between a prior conviction and a prior ARD acceptance.

2025This may be why the four dissenting Justices in Almendarez-Torres, the case on which the Apprendi exception was ultimately based, described the exception as “illogical,” id. at 262 (Scalia, J., dissenting), and the Apprendi majority itself expressed that Almendarez-Torres may have been “incorrectly decided.” Apprendi, 530 U.S. at 489 . 9 But, the exception remains in force to this day, and there simply is no constitutionally-meaningful distinction between a prior conviction and a prior ARD acceptance.

2025I remain convinced that although a defendant’s previous acceptance of accelerated rehabilitative disposition (ARD) does not constitute a previous conviction, a prior ARD is sufficiently analogous to a prior conviction to likewise warrant exemption from the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013) (the Apprendi rule). 1 “As with a prior conviction, . . . acceptance [of ARD] is a 1 Under the Apprendi rule, “any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous

2025I remain convinced that although a defendant’s previous acceptance of accelerated rehabilitative disposition (ARD) does not constitute a previous conviction, a prior ARD is sufficiently analogous to a prior conviction to likewise warrant exemption from the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013) (the Apprendi rule). 1 “As with a prior conviction, . . . acceptance [of ARD] is a 1 Under the Apprendi rule, “any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous

2017See United States v. Cotton, 535 U.S. 625, 633 (2002) (holding no relief due on an Apprendi violation where the evidence that the defendants’ conspiracy involved at least fifty grams of cocaine base was “‘overwhelming’ and ‘essentially’ uncontroverted’”); Commonwealth v. Belak, 825 A.2d 1252 , 1256 n.10 (Pa. 2003) (concluding that failure to submit question to jury regarding whether victims were home during burglaries, when the defendant previously stipulated to that fact precluded relief based on Apprendi).

2017See United States v. Cotton, 535 U.S. 625, 633 (2002) (holding no relief due on an Apprendi violation where the evidence that the defendants’ conspiracy involved at least fifty grams of cocaine base was “‘overwhelming’ and ‘essentially’ uncontroverted’”); Commonwealth v. Belak, 825 A.2d 1252 , 1256 n.10 (Pa. 2003) (concluding that failure to submit question to jury regarding whether victims were home during burglaries, when the defendant previously stipulated to that fact precluded relief based on Apprendi).

2024Application of Apprendi in Pennsylvania Courts Shortly before the U.S. Supreme Court decided Recuenco, this Court was presented with an Apprendi challenge to an enhanced § 1102(c) sentence for attempted murder in Commonwealth v. Reid, 867 A.2d 1280 (Pa.Super. 2005).

2024Application of Apprendi in Pennsylvania Courts Shortly before the U.S. Supreme Court decided Recuenco, this Court was presented with an Apprendi challenge to an enhanced § 1102(c) sentence for attempted murder in Commonwealth v. Reid, 867 A.2d 1280 (Pa.Super. 2005).

2020The second is “when the sentence imposed is patently inconsistent with the sentencing parameter set forth by the General Assembly.” discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. 42 Pa.C.S. § 9781(a), (b). [J-26-2020] - 17 Id. (citing Commonwealth v. Shiffler, 879 A.2d 185 , 188–89 (Pa. 2005) (sentence exceeding statutory maximum intended by General Assembly); Commonwealth v. Aponte, 855 A.2d 800 , 802 n. 1 (Pa. 2004) (same, in context of Apprendi challenge); Commonwealth v. Andrews, 768 A

2011Shiffler, 879 A.2d at 188-89 (sentence exceeding the statutory maximum intended by the General Assembly); Aponte, 855 A.2d at 802 n. 1 (same, in the context of an Apprendi challenge); Andrews, 768 A.2d at 313 (challenge concerning merger or double jeopardy implicates the sentences contemplated by the General Assembly for violations of the Crimes Code).

2024The issue of an Apprendi violation concerning a § 1102(c) sentence resurfaced in this Court the following year in Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super. 2017) (en banc).

2024The issue of an Apprendi violation concerning a § 1102(c) sentence resurfaced in this Court the following year in Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super. 2017) (en banc).

2025“In Almendarez–Torres v. United States, 523 U.S. 224 [ ] [J-75-2024] [MO: Todd, C.J.] - 1 matter of public record, it has nothing to do with the facts and circumstances of the present offense, and the associated procedural safeguards . . . are presumed to satisfy due process.” Verbeck, 290 A.3d at 276 (Mundy, J.) (opinion in support of reversal).

2025“In Almendarez–Torres v. United States, 523 U.S. 224 [ ] [J-75-2024] [MO: Todd, C.J.] - 1 matter of public record, it has nothing to do with the facts and circumstances of the present offense, and the associated procedural safeguards . . . are presumed to satisfy due process.” Verbeck, 290 A.3d at 276 (Mundy, J.) (opinion in support of reversal).

2026See Cruz, 320 A.3d at 1274- 76.

2025As an initial matter, “when a court is faced with a possible Apprendi violation, whether of the due process or jury trial variety, the court is to undertake a harmless error analysis before ruling that the sentence is illegal.” Commonwealth v. Cruz, 320 A.3d 1257 , 1275–76 (Pa. Super. 2024) (en banc), appeal denied, 336 A.3d 249 (Pa. 2025).

2025See Commonwealth v. Johnson, 961 A.2d 877, 881-82 (Pa.Super. 2008), appeal denied, 600 Pa. 774 , 968 A.2d 1280 (2009).

2016Commonwealth v. Johnson, 961 A.2d 877, 881 (Pa. Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (emphasis supplied) (during closing argument, counsel admitted an intimidated witness intended to testify in homicide case, elevating crime of intimidation of witness to first degree felony).

2020The second is “when the sentence imposed is patently inconsistent with the sentencing parameter set forth by the General Assembly.” discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. 42 Pa.C.S. § 9781(a), (b). [J-26-2020] - 17 Id. (citing Commonwealth v. Shiffler, 879 A.2d 185 , 188–89 (Pa. 2005) (sentence exceeding statutory maximum intended by General Assembly); Commonwealth v. Aponte, 855 A.2d 800 , 802 n. 1 (Pa. 2004) (same, in context of Apprendi challenge); Commonwealth v. Andrews, 768 A

2011Shiffler, 879 A.2d at 188-89 (sentence exceeding the statutory maximum intended by the General Assembly); Aponte, 855 A.2d at 802 n. 1 (same, in the context of an Apprendi challenge); Andrews, 768 A.2d at 313 (challenge concerning merger or double jeopardy implicates the sentences contemplated by the General Assembly for violations of the Crimes Code).

2020Id. (citing Commonwealth v. Johnson, 910 A.2d 60, 66-67 (Pa. Super. 2006)).

2020Id. (citing Commonwealth v. Johnson, 910 A.2d 60, 66-67 (Pa. Super. 2006)).

2008(Appellant's Brief at 28). [9] Relevant case law firmly establishes that the statutory maximum for purposes of an Apprendi analysis is not simply defined by the maximum punishment allowed by statute for a class of crimes or for a particular crime but, rather, it is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 , 124 S.Ct. 2531 (emphasis removed). [10] "[The court is] obliged, however, to construe a statute according to its plain meaning and in such a manner as to give effect to all

2008(Appellant's Brief at 28). [9] Relevant case law firmly establishes that the statutory maximum for purposes of an Apprendi analysis is not simply defined by the maximum punishment allowed by statute for a class of crimes or for a particular crime but, rather, it is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 , 124 S.Ct. 2531 (emphasis removed). [10] "[The court is] obliged, however, to construe a statute according to its plain meaning and in such a manner as to give effect to all

2025While we have indicated special interrogatories are generally disfavored in criminal trials, see Commonwealth v. Samuel, 961 A.2d 57, 64 (Pa. 2008), we have suggested they may be used to comply with the Apprendi rule, see Commonwealth v. King, 234 A.3d 549 , 566 [J-75-2024] [MO: Todd, C.J.] - 6 (Pa. 2020). 3 As Section 3806 is lawfully applied under the circumstances of a pre- sentence jury factfinding of a prior ARD acceptance in response to a special interrogatory, it is not facially unconstitutional. 4 Section 3806 is also constitutionally applied under another set of circumstances: where t

2025While we have indicated special interrogatories are generally disfavored in criminal trials, see Commonwealth v. Samuel, 961 A.2d 57, 64 (Pa. 2008), we have suggested they may be used to comply with the Apprendi rule, see Commonwealth v. King, 234 A.3d 549 , 566 [J-75-2024] [MO: Todd, C.J.] - 6 (Pa. 2020). 3 As Section 3806 is lawfully applied under the circumstances of a pre- sentence jury factfinding of a prior ARD acceptance in response to a special interrogatory, it is not facially unconstitutional. 4 Section 3806 is also constitutionally applied under another set of circumstances: where t

2025See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (rejecting a challenge to the constitutionality of section 9714(a)(1) under Alleyne, reasoning that “Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not elements of offenses.”); Commonwealth v. Forbes, 867 A.2d 1268, 1277-78 (Pa. Super. 2005) (rejecting the appellant’s challenge to the constitutionality of section 9714(a)(1) under Apprendi, because prior convictions—which are matters of record—are specifically excepted from the Apprendi rule, and section 9714(a)(1) sets a mandatory minimum

2025See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (rejecting a challenge to the constitutionality of section 9714(a)(1) under Alleyne, reasoning that “Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not elements of offenses.”); Commonwealth v. Forbes, 867 A.2d 1268, 1277-78 (Pa. Super. 2005) (rejecting the appellant’s challenge to the constitutionality of section 9714(a)(1) under Apprendi, because prior convictions—which are matters of record—are specifically excepted from the Apprendi rule, and section 9714(a)(1) sets a mandatory minimum