J-S67013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ROY M. HOGAN,

                          Appellant                  No. 847 MDA 2015


           Appeal from the Judgment of Sentence January 30, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005616-2012


BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 22, 2016

       Roy M. Hogan appeals nunc pro tunc from the January 30, 2014

judgment of sentence of five to ten years imprisonment. Appellant’s crimes

implicated application of a mandatory minimum sentence that has been

declared unconstitutional.     Nevertheless, since the mandatory minimum

sentence applicable herein did not affect the sentence actually imposed, we

affirm.

       On January 30, 2014, a jury found Appellant guilty of various drug-

related offenses based upon the following proof. Criminal Investigator Jose

Martinez testified that he was employed by the Berks County Police

Department in an undercover police capacity. His duties were to “go out in

the street” and “meet potential targets that are dealing drugs and purchase


*
    Retired Senior Judge assigned to the Superior Court.
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drugs from these individuals.” N.T. Trial, 1/29-30/14, at 47. On August 23,

2012, he was working in that capacity when another Criminal Investigator,

Darren Smith, gave him Appellant’s picture. Investigator Smith, through the

use of a confidential informant (“CI”), had already arranged for Investigator

Martinez to purchase drugs at 133 South 6th Street, Reading. Investigator

Martinez and the CI traveled to the noted location.

      Investigator Martinez and the CI entered the first floor hallway and

encountered    Appellant   and   Jose   Torres-Perez.    Speaking   Spanish,

Investigator Martinez asked Torres-Perez for two packages of drugs and

handed him $20 in prerecorded money. Torres-Perez took the cash and told

Appellant in English that Investigator Martinez wanted two packages.

Torres-Perez gave Appellant the money, and Appellant gave Torres-Perez

two clear plastic baggies containing crack cocaine, which Torres-Perez

transferred to Investigator Martinez.    The transaction was videotaped and

that tape was shown to the jury with the image of the CI blurred so that he

could not be identified.

      Investigator Smith testified that his department began an investigation

of drug activity at 133 South 6th Street. He contacted the CI, who indicated

that he would be able to arrange to buy drugs from Appellant at that

location. Investigator Smith then contacted Investigator Martinez to travel

with the CI to purchase the drugs and videotape the transaction.

Investigator Smith also testified that 133 South 6th Street was near two

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schools.   Berks County Detective Nicholas Bolognese told the jury that he

measured the distance between 133 South 6th Street and the schools using

special equipment and that the point of sale for the drugs was within 1,000

feet of both establishments.

      The jury was specifically instructed to make a determination of

whether 133 South 6th Street was within 1,000 feet of a school for purposes

of application of 18 Pa.C.S. § 6317(a), which provides, in pertinent part, that

a person convicted of possession of a controlled substance with intent to

deliver (“PWID”) or delivery of a controlled substance must be sentenced to

a mandatory minimum term of imprisonment of two years if the crime

occurred within 1,000 feet of a public, private, or parochial school.

      On January 30, 2014, the jury found Appellant guilty of delivery of a

controlled substance within 1,000 feet of a school, conspiracy to deliver a

controlled substance, PWID within 1,000 of a school, conspiracy to commit

PWID, possession of a controlled substance, and conspiracy to commit

possession of a controlled substance.    Appellant was sentenced that same

day to five to ten years imprisonment.     While the sentencing hearing was

not transcribed, the trial court, the Commonwealth, and Appellant agree that

18 Pa.C.S. § 6317(a) was applicable herein.

      There are two documents of record pertinent to sentencing. The first

is a guideline sentencing from prepared for the PWID offenses. That form

indicates that there was a mandatory minimum applicable to the crime and

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that Appellant was a repeat felony offender and the offense gravity score

was six.   Thus, as the form clearly delineates, the guidelines called for a

sentence that was at least the mandatory minimum, with a standard range

sentence of twenty-seven to forty months, a mitigated range sentence of

twenty-four months, and an aggravated range sentence of forty-six months.

The Clerk of Courts of Berks County prepared a court commitment form that

indicates the following.   Appellant was sentenced on January 30, 2014, to

five to ten years imprisonment for the PWID and probation on the conspiracy

to commit PWID. The sentencing court determined that the remaining four

offenses merged for sentencing purposes.

      Appellant did not file a direct appeal, but, on December 8, 2014, he

filed a timely pro se PCRA petition.    Counsel was appointed and filed an

amended petition, averring, inter alia, that Appellant was entitled to

reinstatement of his direct appeal rights given that he asked trial counsel to

file a direct appeal and counsel failed to do so.       On April 13, 2015,

Appellant’s direct appeal rights were reinstated, and this appeal followed.

Appellant raises this issue on appeal, “Did the trial court improperly impose

a sentence that was excessive, unlawful and/or contrary to Alleyne v.

United States, 133 S.Ct. 2151 (2013)?” Appellant’s brief at 4. We note

that the trial court, in its Pa.R.A.P. 1925(b) opinion, concluded that the

sentence was illegal and that this case “should be remanded to this Court for

resentencing consistent with Alleyne.” Trial Court Opinion, 6/25/15, at 3.

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      Initially, we note that issues pertaining to imposition of a mandatory

minimum sentence relate to the legality of sentence and cannot be waived.

Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012).                   “Our

standard of review over such questions is de novo and our scope of review is

plenary.” Id. at 1130. In Alleyne, the United States Supreme Court held

that any fact, other than a prior conviction, that triggers a mandatory

minimum sentence must be proven beyond a reasonable doubt before the

factfinder.   Pursuant to this decision, many of Pennsylvania’s mandatory

minimum sentencing statutes are infirm.     See, e.g., Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v.

Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted, 121 A.3d 433 (Pa.

2015).

      Most significantly, if a mandatory minimum statute outlines that its

application shall be determined at sentencing by a sentencing court, then it

is void in its entirety and a defendant cannot be sentenced pursuant to that

statute. Section 6317 provides,

             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.

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18 Pa.C.S. § 6317(b).

     In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), our

Supreme Court held that § 6317 was void in its entirety and could not be

severed so as to permit a jury to determine whether a drug sale or PWID

occurred within 1,000 feet of a school.    See also Commonwealth v.

Valentine, 101 A.3d 801 (Pa.Super. 2014) (striking down entire statute

providing that facts necessary for application of mandatory minimum

sentence found by sentencing court by a preponderance of the evidence and

ruling that use of a special interrogatory on the verdict slip did not cure

unconstitutionality of sentence even though jury found facts necessary for

application of mandatory minimum beyond a reasonable doubt).

     The Commonwealth counters that Appellant is not entitled to relief in

that he was sentenced to five to ten years imprisonment and cannot prove

that his sentence was affected by imposition of the two-year mandatory

minimum sentence.

     We agree with this position.   The record establishes that Appellant’s

sentence did not result from application of the mandatory minimum, which

was only two years. Rather, Appellant was sentenced above the mandatory

minimum as well as in excess of the guidelines ranges, perhaps due to his

status as repeat felony offender, to the statutory maximum for PWID. Since

Appellant was not sentenced based on the mandatory statute, his sentence



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is not illegal.   Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super.

2015).1

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2016




____________________________________________


1
  Appellant relies solely upon Alleyne and Hopkins, leveling no objection to
the fact that it exceeded the recommended guideline ranges.



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