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Commonwealth v. Graham

Conviction affirmed; due process did not require that aggravating factor of delivery of controlled substance within a school zone be submitted for a finding by jury, because such a factor was not an element of underlying offence of delivery of a controlled substance.

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OPINION

� 1 Where a defendant is convicted of delivery of a controlled substance and the Commonwealth seeks to apply the mandatory sentencing provisions of the drug-free school zone statute, do constitutional guarantees of due process, notice and jury trial require that only a jury may find beyond a reasonable doubt that delivery occurred within 1,000 feet of school property? We conclude that the fact of delivery within a school zone is not an element of the underlying offense of delivery of a controlled substance. We determine that due process does not require that the aggravating factor be submitted for finding by a jury. Accordingly, we affirm the judgment of sentence that resulted from the imposition of a mandatory minimum sentence based upon findings made by the trial judge.

� 2 On April 24, 2001, a jury convicted Zelda Jean Graham of possession of a controlled substance, possession with intent to deliver a controlled substance, and criminal conspiracy to deliver a controlled substance. See 35 P.S. �� 780-113(a)(16), (30), and 18 Pa.C.S. � 903 (respectively). On July 5, 2001, the Honorable Norman D. Callan sentenced Graham to serve a term of two to four years’ imprisonment. Graham now appeals from the judgment of sentence, and we affirm.

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