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Pennsylvania Superior Court Declares Mandatory Minimum Statutes Unconstitutional

Posted On: September 9, 2014 by Marc Neff

The Pennsylvania Superior Court recently sent shockwaves throughout the criminal justice system by declaring the state’s mandatory minimum sentencing statutes unconstitutional. The court declared that a 5 year mandatory sentence imposed for possession with intent to deliver a controlled substance, where a firearm was in the vicinity, was unconstitutional. The sentencing law only required the Commonwealth to prove that a gun was in “close proximity” to the drug sales, to a judge at sentencing by a preponderance of the evidence, rather than to a jury beyond a reasonable doubt.

The Montgomery County case involved a defendant who was observed making numerous drug transactions out of his apartment. Police obtained a search warrant and after executing that warrant, the police seized drug paraphernalia, a firearm and over 60 grams of crack cocaine. The court imposed the mandatory minimum under 42 Pa.C.S. 9712, and a state incarceration sentence of 5 to 15 years. The defendant appealed his sentence as illegal under the theory that the mandatory minimum statute was unconstitutional. The Superior Court agreed, vacated his sentence, and remanded the matter for a new sentencing hearing without imposition of the mandatory.

The Superior Court held that the five to ten year mandatory minimum sentence, required when convicted of possession with intent to deliver while a firearm was in close proximity, 42 Pa.C.S 9712.1, was unconstitutional under the United States Supreme Court ruling in Alleyne. Of equal importance to the new rule announced in Alleyne, the ruling was to apply retroactively to those sentenced before the now-unconstitutional sentencing scheme. This means that those who were recently sentenced to mandatory minimums that are now deemed to be unconstitutional may be entitled to relief in the way of a new sentencing hearing by filing a Post Conviction Relief Act (PCRA) petition.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution and the rules of evidence in a criminal court of law. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at

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Posted in: Drug Crimes