School zone enhancement

Is Pennsylvania’s School Zone Enhancement illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013)?

School Zone Enhancement

The Pennsylvania School Zone Enhancement kicks in when someone is conviction of Possession with the Intent to Deliver (PWID) within 1000 of the real property of a public, private or parochial school, college, or university. The code section is 6317.  Its a 2-4 year mandatory. Meaning, if you are convicted the lowest sentence you can get is 2-4 years.


The School Zone Enhancement mandatory minimum has its own statute and there is a new element in the statute that aggravates the existing crime (meaning makes it worse), there are three requirements under Alleyne to make any mandatory statute constitutional. The three factors are: pretrial notice (not notice before sentencing), the jury is allowed to decide the factors if demanded by defendant, and the element that makes the mandatory apply must be proven beyond a reasonable doubt.

18 PA Code 6317 – School Zone Enhancement

(a) General rule.–A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:

(1) subject to this section; and

(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.

If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).

(b) Proof at sentencing.–The provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.

(c) Authority of court in sentencing.–There shall be no authority for a court to impose on a defendant to which this section is applicable a lesser sentence than provided for in subsection (a), to place the defendant on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

(d) Appeal by Commonwealth.–If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section. (June 25, 1997, P.L.284, No.26, eff. 60 days)

You can read that section (b) is the problem. The School Zone Enhancement statute says the factual basis for the mandatory is not an element of the crime, which triggers Alleyne. The statute says notice is before sentencing not before conviction, so the School Zone Enhancement is unconstitutional. The statute says preponderance, thats not reasonable doubt, so that too is unconstitutional. Lastly, the word jury doesn’t appear in the statute. Obviously, this statute is unconstitutional.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.