J-S60015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RALEIGH NATHAN GRANT

                            Appellant                No. 600 MDA 2014


             Appeal from the Judgment of Sentence August 6, 2013
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004354-2012
                            CP-36-CR-0004398-2012
                            CP-36-CR-0004403-2012


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED JANUARY 14, 2015

        Raleigh Nathan Grant appeals nunc pro tunc from the judgment of

sentence imposed on August 6, 2013, in the Lancaster County Court of

Common Pleas.        Grant was sentenced to an aggregate term of 7½ to 18

years’ incarceration following his guilty plea, in three separate cases, to

charges of possession with intent to deliver controlled substances (PWID),

and criminal use of a communication facility.1 On appeal, he challenges both

the legality and discretionary aspects of his sentence. For the reasons set

forth below, we vacate the judgment of sentence and remand for

resentencing.

____________________________________________


1
    75 Pa.C.S. § 780-113(a)(30), and 18 Pa.C.S. § 7512, respectively.
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        The facts and procedural history underlying this appeal are aptly

summarized by the trial court as follows:

              On January 27, 2012, [Grant] delivered a quantity of
        cocaine and a quantity of heroin to a confidential informant.
        [Grant] used a cell phone to make the deal and the deal
        occurred in a drug-free school zone. On February 15, 2012,
        [Grant] delivered a quantity of cocaine to a confidential
        informant, again using a cell phone and in a drug-free school
        zone. Finally, on February 17, 2012, [Grant] again[] delivered a
        quantity of cocaine to a confidential informant, again completing
        the deal in a drug-free school zone and using a cell phone to set
        up the deal.

               As a result of [Grant’s] criminal behavior, [Grant] was
        charged on three docket numbers with three counts of Delivery
        of Cocaine, three counts of Criminal Use of a Communication
        Facility, and one count of Delivery of Heroin.[2] On August 6,
        2013, during the course of trial, [Grant] entered an open guilty
        plea on all three dockets before [the trial court] and waived his
        pre-sentence investigation. The Court accepted his plea as
        knowing and voluntary.

               On that same day, [Grant] proceeded to sentencing. On
        each docket, the Commonwealth invoked the two-year drug-free
        school zone mandatory minimum sentence.[3]           On Docket
        Number 4403-2012, the Court sentenced [Grant] to two to four
        years of imprisonment on the count of delivery of cocaine and
        two to four years imprisonment on the count of delivery of
        heroin. The two counts were made concurrent to each other.
        On count 2, Criminal Use of a Communication Facility, the Court
        sentenced [Grant] to six months to two years of imprisonment.
        On Docket Number 4398-2012, the Court sentenced [Grant] to
        two to four years of imprisonment on the count of delivery of
        cocaine.     On count two, Criminal Use of a Communication
        Facility, the Court sentenced [Grant] to six months to two years
____________________________________________


2
    The cases were later consolidated for trial.
3
    See 18 Pa.C.S. § 6317.




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       of imprisonment. On Docket Number 4354-2012, the Court
       sentenced [Grant] to two to four years of imprisonment on the
       count of delivery of cocaine. On count two, Criminal Use of a
       Communication Facility, the Court sentenced [Grant] to six
       months to two years of imprisonment. The sentences imposed
       at Count 1 of each of the criminal informations were set to run
       consecutively to each other, for a total of six to twelve years of
       incarceration. The sentences at Count 2 of each information
       were set to run consecutive to each other and consecutive to the
       sentences imposed on Counts 1 of each of the criminal
       informations, for a period of one and one half to six years of
       incarceration. Count 3 of docket 4403-2012 was set to run
       concurrently with Count 1 of docket 4403-2012. Thus, in sum,
       the Court sentenced [Grant] to an aggregate term of
       imprisonment of 7½ to 18 years.

             On August 16, 2013, [Grant] filed his Motion to Modify
       Sentence. [Grant] argued that the Court did not fully consider
       mitigating factors at sentencing and that consecutive sentences
       are not warrant[ed] because the nature of the offenses is
       already factored into the guideline range and the mandatory
       minimum sentences as invoked by the prosecutor. The Court
       denied [Grant’s] motion by Order of August 19, 2013. No direct
       appeal was filed, and [Grant] timely filed his PCRA petition on
       September 27, 2013. Counsel was appointed and an Amended
       PCRA petition was filed January 17, 2014. On March 27, 2014,
       the Court granted [Grant’s] PCRA petition and reinstated his
       appellate rights. On April 3, 2014, [Grant] timely filed his Notice
       of Appeal.[4]

Trial Court Opinion, 4/14/2014, at 1-3 (internal footnotes omitted).

       In his original appellate brief, Grant challenged only the discretionary

aspects of his sentence. However, on August 29, 2014, Grant moved for a


____________________________________________


4
  The same day, the trial court ordered Grant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Grant
complied with the trial court’s directive, and filed a concise statement on
April 11, 2014.




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supplemental briefing schedule so that he could address the illegality of his

mandatory     minimum       sentence   in   light   of   this   Court’s   decision   in

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

which was filed on August 20, 2014. By Order entered September 8, 2014,

we granted the motion, and directed Grant to file a supplemental brief no

later than October 8, 2014. See Order, 9/8/2014. Grant complied with our

directive, and the Commonwealth declined to file a response. Because we

conclude that Grant’s legality of sentencing claim is dispositive, we will

address that issue first.

      In his supplemental brief, Grant contends the Section 6317 mandatory

minimum two-year sentences imposed upon his convictions of PWID were

unconstitutional, in light of this Court’s decision in Newman, supra,

applying the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013). See Grant’s Supplemental Brief at 4-

5. We agree.

      In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne,

133 S.Ct. at 2155 (emphasis supplied). Following that pronouncement, an

en banc panel of this Court, in Newman, concluded that Alleyne rendered

the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712.1,

unconstitutional. Like the statute at issue herein, subsection (c) of Section


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9712 permits the trial court to determine at sentencing whether the

elements necessary to increase the mandatory minimum sentence, i.e., the

defendant possessed or was in close proximity to a firearm while selling

drugs, were proven by a preponderance of the evidence.              See 42

Pa.C.S. § 9712.1(c). See also 18 Pa.C.S. § 6317(b).

      The Newman Court vacated the judgment of sentence and remanded

for resentencing without consideration of the mandatory minimum statute.

The Court opined:

      Plainly, Section 9712.1 can no longer pass constitutional muster.
      It permits the trial court, as opposed to the jury, to increase a
      defendant's minimum sentence based upon a preponderance of
      the evidence that the defendant was dealing drugs and
      possessed a firearm, or that a firearm was in close proximity to
      the drugs. Under Alleyne, the possession of the firearm must
      be pleaded in the indictment, and must be found by the jury
      beyond a reasonable doubt before the defendant may be
      subjected to an increase in the minimum sentence. As that is
      not the case instantly, we are constrained to vacate appellant’s
      sentence and remand for resentencing without regard for any
      mandatory minimum sentence prescribed by Section 9712.1.

Id. at 98.

      Furthermore, the Newman Court rejected the Commonwealth’s

suggestion that the illegality of the statute could be remedied upon remand,

by empanelling a jury to consider whether the Commonwealth proved,

beyond a reasonable doubt, the factors necessary to impose the mandatory

minimum. The Court held:

      We find that Subsections (a) and (c) of Section 9712.1 are
      essentially and inseparably connected.     Following Alleyne,
      Subsection (a) must be regarded as the elements of the
      aggravated crime of possessing a firearm while trafficking drugs.

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      If Subsection (a) is the predicate arm of Section 9712.1, then
      Subsection (c) is the “enforcement” arm. Without Subsection
      (c), there is no mechanism in place to determine whether the
      predicate of Subsection (a) has been met.

Id. at 101. The Court concluded that “it is manifestly the province of the

General Assembly to determine what new procedures must be created in

order to impose mandatory minimum sentences in Pennsylvania following

Alleyne. We cannot do so.” Id. at 102.

      Following the en banc decision in Newman, this Court has consistently

applied the same reasoning to invalidate other mandatory minimum statutes

that include similar provisions permitting the trial court to make factual

determinations at sentencing under the relaxed preponderance of the

evidence standard. Commonwealth v. Cardwell, ___ A.3d ___, 2014 PA

Super 263 (November 25, 2014) (vacating mandatory minimum sentence

imposed based upon amount of drugs recovered pursuant to 18 Pa.C.S. §

7508); Commonwealth v. Fennell, ___ A.3d ___, 2014 PA Super 261 (Pa.

Super. November 21, 2014) (same); Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super. 2014) (vacating mandatory minimum sentence

imposed pursuant to 42 Pa.C.S. §§ 9712 and 9713, for committing a crime

of violence with a firearm and in or near public transportation).

      Recently, in Commonwealth v. Bizzel, ___ A.3d ___, 2014 PA Super

267 (Pa. Super. December 2, 2014), a panel of this Court, relying on

Newman, held that the mandatory minimum provision at issue sub judice,

18 Pa.C.S. § 6317, is constitutionally infirm, as well. The Court opined:



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      [T]he United States Supreme Court’s decision in Alleyne
      rendered Section 6317(b) unconstitutional. In the instant case,
      after careful review and pursuant to the rules of statutory
      construction set forth in 1 Pa.C.S. § 1925, we conclude that the
      remainder of 18 Pa.C.S. § 6317 is inseparably connected with
      and dependent upon the unconstitutional provision in Section
      6317(b). It cannot be presumed the General Assembly would
      have enacted the remaining provisions without Section 6317(b),
      and the remaining provisions, standing alone, are incomplete
      and are incapable of being executed in accordance with the
      legislative intent. Therefore, we are constrained to hold that 18
      Pa.C.S. § 6317 is unconstitutional.

Id. at *4.

      Accordingly, because we find the decisions in Newman and Bizzel

control our decision, we are constrained to vacate the judgment of sentence,

and remand for resentencing without consideration of the Section 6317

mandatory minimum.        Since our disposition will result in an entirely new

sentencing scheme, we        need not address Grant’s challenge       to   the

discretionary aspects of his original sentence.

      Judgment of sentence vacated.        Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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