The precise issue presented in this case has been dealt with in two other recent en banc decisions of this Court. SeeCommonwealth v. Tyrone Williams, 431 Pa. Super. 167, 636 A.2d 183 (1993); Commonwealth v. Plass, 431 Pa. Super. 251, 636 A.2d 637 (1994). Although Williams and Plass dealt with other violations of section 7508, their analysis of the statute is dispositive and controlling in this case as well.
In rejecting this claim, the Superior Court relied upon its decision in Commonwealth v. Plass, 636 A.2d 637 (Pa.Super. 1994), aff'd 652 A.2d 283 (Pa. 1994), which it declined to revisit. [See ECF No. 29-3 at p. 11, Bell, 1632 WDA 2005, slip op. at p. 11].
18 Pa.C.S. § 7508(a)(2)(ii). ¶ 20 The constitutionality of section 7508 has previously been addressed by our Court in Commonwealth v. Plass, 431 Pa.Super. 251, 636 A.2d 637 (1994) ( en banc), and Eicher. In Plass, our Court reviewed an equal protection challenge to section 7508 and stated that:
¶ 8 Initially, we must establish the appropriate degree of scrutiny to analyze the challenged statute. This court reviewed an equal protection challenge to the sentencing guidelines under 18 Pa.C.S.A. § 7508 in Commonwealth v. Plass, 636 A.2d 637, 641 (Pa.Super. 1994) (citations omitted), where we stated: The classification established by the statute singles out drug offenders who have been convicted of a previous drug offense at the time of sentencing on the principal offense.
Decided December 29, 1994. Appeal No. 36 W.D. Appeal Docket 1994 from the Order of the Superior Court, 431 Pa. Super. 251, 636 A.2d 637 (1994), dated January 4, 1994, at No. 1014 Pittsburgh 1992, vacating the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, dated May 28, 1992 at No. CC-9111528, and remanding for resentencing. Lester G. Nauhaus, James R. Wilson, Pittsburgh, for K. Plass.
The Commonwealth argues that the statute unambiguously states that if at the time of "sentencing" the defendant has been "convicted" of another drug offense, the defendant's sentence is enhanced. See Commonwealth v. Williams, 652 A.2d 283 (Pa. 1994) and Commonwealth v. Plass, 636 A.2d 637 (Pa.Super.), aff'd, 652 A.2d 283 (Pa. 1994). It is irrelevant that the prior conviction arises from one count within a multiple count complaint, or that the offenses are from a single arrest and charge. Vasquez counters that Section 7508 does not indicate that a defendant would be subject to an enhanced sentence because of a multiple count offense.
Com. v. Pizzofn_ ....... 3/14/94 0495 Denied 431 Pa. Super. 642, E.D. 631 A.2d 1371 (1993) Com. v. Plassfn_ ....... 5/18/94 0052 Granted 431 Pa. Super. 251, W.D. (0036 W.D. 636 A.2d 637 (1994) 1994) Com. v. Powellfn_ ...... 3/9/94 0316 Denied 430 Pa. Super. 649, E.D. 430 Pa. Super. 654, (1993) 630 A.2d 464
¶ 10 In support of his second question, Bell argues that his sentence violates due process and equal protection. He concedes, however, that we have addressed such a claim previously and found it untenable. Brief for Appellant at 15 (citing Commonwealth v.Plass, 431 Pa.Super. 251, 636 A.2d 637 (1994)). Bell cites no other case authority in support of his argument.
The same scenario was presented in Commonwealth v. Jones, 637 A.2d 1001 (Pa.Super. 1994), although there the period between intervening offenses was merely two months implying that Jones continued to sell narcotics while on bail, and awaiting trial, for his first arrest. ¶ 6 Subsequent to the 1990 amendments Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283 (1994), and Commonwealth v. Plass, 636 A.2d 637 (Pa.Super. 1994) ( en banc), conclusively established that the rewording of the statute in 1990 changed its application in such a manner that a Kane-type situation could no longer occur. Both Williams and Plass dealt with scenarios where the timing of the commission, conviction and sentencing of offenses was atypical.