J-S49027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE ADORNO

                            Appellant               No. 3236 EDA 2013


           Appeal from the Judgment of Sentence October 17, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006316-2013


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

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 24, 2014

        Jose Adorno appeals from the judgment of sentence imposed on

October 17, 2013, in the Philadelphia County Court of Common Pleas. The

trial court imposed an aggregate sentence of seven and one-half to 25 years’

imprisonment after Adorno entered a guilty plea to two counts of aggravated

assault and one count of possession of a firearm without a license. 1

Contemporaneous with this appeal, Adorno’s counsel has filed a petition to

withdraw from representation and an Anders brief.2 Counsel’s Anders brief

challenges only the discretionary aspects of Adorno’s sentence. Because we

____________________________________________


1
    18 Pa.C.S. §§ 2702 and 6106, respectively.
2
  Anders v. California, 386 U.S. 738 (1967). See also Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago,
978 A.2d 349, 361 (Pa. 2009)
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have identified one non-frivolous issue which entitles Adorno sentencing

relief, we deny counsel’s petition to withdraw, vacate the judgment of

sentence, and remand for re-sentencing.

       The facts underlying Adorno’s guilty plea are as follows. On March 2,

2013, Adorno fired a gun at two teenagers on West Lehigh Street in

Philadelphia. Adorno and one of the teens had previously argued over a girl.

Although one of the victims was able to flee without injury, the other was

nearly hit by a car as he ran away. Adorno continued to fire at the victim

lying on the ground, and the victim suffered a serious gunshot wound to his

buttocks. After Adorno’s arrest, one of the victims received a text message

from a third party indicating Adorno would give him $1,000 if he did not go

to court.   See N.T., 8/30/2012, at 10-12.

       The case was submitted to a grand jury, which issued an indictment

against Adorno on the following charges: attempted murder (two counts),

aggravated assault (two counts), intimidation of a witness, persons not to

possess firearms and possession of a firearm without a license.3 On August

30, 2013, Adorno entered an open guilty plea to two counts of aggravated

assault and one count of possession of a firearm without a license.      In

exchange for the plea, the Commonwealth withdrew the remaining charges.


____________________________________________


3
  18 Pa.C.S. §§ 901, 2502, 2702(a)(1), 4952(a)(1), 6105, and 6106,
respectively.




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On October 17, 2013, the trial court imposed concurrent, mandatory

minimum sentences of five to 20 years’ imprisonment for each count of

aggravated assault,4 and a consecutive sentence of two and one-half to five

years’ imprisonment for possession of a firearm without a license, for an

aggregate sentence of seven and one-half to 20 years’ incarceration.

Adorno filed a motion for reconsideration of sentence, which the trial court

denied on October 28, 2013.           This timely appeal followed.5

       When     direct   appeal       counsel   files   a   petition   to   withdraw    and

accompanying Anders brief, we must first examine the request to withdraw

before   addressing      any     of   the   substantive     issues     raised   on   appeal.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Here, our review of the record reveals that counsel has substantially

complied with the requirements for withdrawal outlined in Anders, supra,

and its progeny. Specifically, counsel filed a petition for leave to withdraw,

in which he states his belief that the appeal is frivolous,6 filed an Anders
____________________________________________


4
  The mandatory minimum five-year term was imposed pursuant to 42
Pa.C.S. § 9712(a) because Adorno visibly possessed a firearm during the
commission of a crime of violence. 42 Pa.C.S. § 9712(a).
5
  On November 19, 2013, the trial court ordered Adorno to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time, on February 7, 2014, counsel filed a
statement of his intent to file an Anders Brief, pursuant to Pa.R.A.P.
1925(c)(4).
6
  In order to withdraw from a direct appeal, counsel must aver that he
believes the appeal is frivolous. See Commonwealth v. Smith, 700 A.2d
(Footnote Continued Next Page)


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brief pursuant to the dictates of Santiago, supra, furnished a copy of the

Anders brief to Adorno, and advised Adorno of his right to retain new

counsel or proceed pro se. Commonwealth v. Ferguson, 761 A.2d 613,

616 (Pa. Super. 2000).             Moreover, the record contains no additional

correspondence from Adorno. Accordingly, we will proceed to examine the

record and make an independent determination of whether the appeal is

wholly frivolous.

      We review this appeal on the basis of the issue identified in the

Anders brief, that is, whether the sentence imposed by the trial court was

an abuse of discretion. Because the right to appeal the discretionary aspects

of a sentence is not absolute, in order to reach the merits of such a claim,

this Court must first determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant's brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.
                       _______________________
(Footnote Continued)

1301, 1305 n.10 (Pa. Super. 1997) (“This Court has repeatedly held that
frivolous is not the same as meritless; ‘[a]n appeal is frivolous where it lacks
any basis in law or fact.’”). Although counsel stated in his petition to
withdraw that he believes “there are no meritorious issues to raise on
appeal[,]” he appears to acknowledge in the Anders brief his belief that the
appeal is frivolous. See Petition to Withdraw as Counsel, 3/27/2014, ¶ 2;
Anders Brief at 7, 8. Therefore, we find that counsel has minimally satisfied
the requirements of Anders and its progeny. However, we caution counsel,
in any future requests to withdraw, to clearly state his conclusion that any
appeal would be frivolous.




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Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

       Here, Adorno filed both a timely motion for reconsideration of

sentence, and a timely appeal.         Although the Anders brief does not include

the requisite statement of reasons relied upon for appeal pursuant to

Pa.R.A.P. 2119(f), we may disregard this omission if the Commonwealth fails

to object.     See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.

Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014).                   Here, the

Commonwealth neglected to file a timely appellee brief, despite this Court’s

grant of an extension of time to do so.7 As such, we will not consider the

Commonwealth’s untimely brief on appeal.               See Commonwealth v.

Tisdale, 100 A.3d 216, 217 (Pa. Super. 2014). Therefore, we will presume

the Commonwealth did not object to the briefing defect and proceed to a

determination of whether Adorno raised a substantial question justifying our

review.

       A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

____________________________________________


7
  On April 30, 2014, this Court granted the Commonwealth an extension of
time to file an appellee brief until June 30, 2014. Order, 4/30/2014. The
order stated “[n]o further extensions will be granted.”           Id.   The
Commonwealth did not file a brief in this appeal until more than two months
later, on September 2, 2014.



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underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

       Neither the motion for reconsideration of sentence nor the Anders

brief sets forth a specific challenge to Adorno’s sentence.       Rather, the

Anders brief asserts that the sentence imposed by the trial court did not

exceed the sentencing guidelines or the statutory maximum. See Anders

Brief at 8. Therefore, we conclude Adorno has failed to present a substantial

question that his sentence “is either inconsistent with a specific provision of

the Sentencing Code or is contrary to the fundamental norms underlying the

sentencing process.” Ventura, supra, 975 A.2d at 1133.

       Nevertheless, as mandated by law, we have independently reviewed

the record.     In doing so, we uncovered one non-frivolous issue for our

consideration, namely, whether the mandatory minimum five-year sentences

imposed on Adorno’s convictions of aggravated assault are illegal in light of

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

133 S.Ct. 2151 (U.S. 2013).8 Because this issue involves a question of law

____________________________________________


8
  Although Adorno did not challenge his sentence on this basis in his post-
sentence motion, we have held that such a claim implicates the legality of a
sentence and cannot be waived on appeal.         See Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc). Nevertheless, we
note that the Pennsylvania Supreme Court recently granted allocatur on this
exact issue. See Commonwealth v. Johnson, 93 A.3d 806 (Pa 2014)
(granting allocatur to consider, inter alia, “[w]hether a challenge to a
(Footnote Continued Next Page)


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and the record is complete for our review, we decline to remand for an

advocate’s brief, and accordingly, proceed to a consideration of the issue on

its merits.   See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 (Pa.

Super. 2009) (remanding Anders appeal for resentencing when court

imposed an illegal sentence, without first requiring advocate’s brief).

      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).            The Court expanded upon its

previous holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), which

applied only to facts that increase the statutory maximum for a crime, to

include facts which increase the minimum sentence. Id.

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

banc), an en banc panel of this Court concluded that Alleyne rendered the

mandatory minimum sentencing provision of a similar statute, 42 Pa.C.S. §

9712.1, unconstitutional.           Section 9712.1 provides for a mandatory

minimum five-year prison term when a defendant possesses, or is in close

proximity to a firearm, while selling illegal drugs.        See 42 Pa.C.S. §

9712.1(a).    Like the statute at issue herein, subsection (c) of that statute

                       _______________________
(Footnote Continued)

sentence pursuant to Alleyne [] implicates the legality of the sentence as
and is therefore non-waivable.”).




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permits the trial court to determine at sentencing whether the elements

necessary to increase the mandatory minimum sentence were proven by a

preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c)

       In Newman, a jury convicted the defendant of, inter alia, possession

with intent to deliver cocaine when, during the execution of a search

warrant, drugs were found in a bathroom in the defendant’s house. During

the search, the police also found a firearm under a mattress in a bedroom

across the hall.    Newman, supra, 99 A.3d at 88.           Based upon its

determination, by a preponderance of the evidence, that the drugs and

firearm were in close proximity to each other, the trial court applied the

section 9712.1 mandatory minimum. However, the Newman Court vacated

the judgment of sentence on appeal, holding that Alleyne renders section

9712.1 unconstitutional. 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,


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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.
      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 Newman Court concluded “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

subsequently 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. See Commonwealth v. Bizzel, ___ A.3d ___,

2014 PA Super 267 (Pa. Super. December 2, 2014) (vacating mandatory

minimum sentencing imposed pursuant to drug-free school zone statute, 18

Pa.C.S. § 6317); 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.


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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).

      The case sub judice presents a different procedural posture than that

presented in Newman. Here, Adorno knowingly and voluntarily waived his

right to a jury trial, and entered a guilty plea. It defies acceptable judicial

jurisprudence that a defendant can waive his right to a jury trial, but cannot

waive his right to have a jury determine if the elements necessary to impose

a mandatory minimum sentence are present. Nevertheless, based upon the

holding in Newman, the entire mandatory minimum statute applied

herein is unconstitutional in light of Alleyne, and this Court is not

empowered, absent legislative guidance, to create a new procedure “in order

to   impose    mandatory   minimum    sentences   in   Pennsylvania   following

Alleyne.” Newman, supra, at 102-103. Therefore, we are compelled to

vacate   the   judgment of sentence imposed herein, and remand for

resentencing, without application of the Section 9712 mandatory minimum.

      Accordingly, because we have found one non-frivolous issue in

Adorno’s appeal, we deny counsel’s petition to withdraw. Furthermore, since

we are constrained by Newman, we conclude the trial court erred in

applying the Section 9712 mandatory minimum sentence to Adorno’s




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convictions of aggravated assault, we vacate the judgment of sentence and

remand for resentencing.

      Judgment of sentence vacated.       Case remanded for resentencing

consistent with this memorandum. Petition to withdraw as counsel denied.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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