J-S67028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHACQAN MCCLENDON

                            Appellant                  No. 647 WDA 2014


             Appeal from the Judgment of Sentence March 14, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001969-2013


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

JUDGMENT ORDER BY MUNDY, J.:                     FILED NOVEMBER 12, 2014

        Appellant, Shacqan McClendon, appeals from the March 14, 2014,

aggregate judgment of sentence of five to ten years’ imprisonment, imposed

after he was found guilty of one count of robbery, two counts of recklessly

endangering another person (REAP), and one count of theft by unlawful

taking.1 After careful review, we vacate and remand for resentencing.

        Appellant received a five-year mandatory minimum sentence pursuant

to 42 Pa.C.S.A. § 9712(a). In Commonwealth v. Valentine, --- A.3d ---,

2014 WL 4942256 (Pa. Super. 2014), this Court concluded that Section 9712

was unconstitutional on its face in light of the United States Supreme Court’s
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2705, and 3921(a), respectively.
J-S67028-14


decision in Alleyne v. United States, 133 S. Ct. 2151 (2013) and this

Court’s decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc). In Alleyne, the Supreme Court held that any fact which

increases a defendant’s minimum sentence is an element of the offense that

must be submitted to the jury and found beyond a reasonable doubt.

Alleyne, supra at 2163. In Newman, this Court held that the subsections

of Pennsylvania’s mandatory minimum statutes could not be severed and

were unconstitutionally void in their entirety.2 Newman, supra at 102.

       The Commonwealth acknowledges Newman, but argues the trial court

complied with Alleyne by submitting the necessary element to the jury,

which it found beyond a reasonable doubt. Commonwealth’s Brief at 1 n.1.

However, the trial court in Valentine employed this same procedure, which

this Court rejected, stating that, under Newman, it was solely up to the

General Assembly to promulgate a new procedure to impose mandatory

minimum sentences consistent with Alleyne.        Valentine, supra at *8.

Therefore, in light of Newman and Valentine, we conclude Appellant is

entitled to resentencing.3


____________________________________________
2
  We note the Commonwealth has filed a petition for allowance of appeal
with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the
date of this decision, it is still pending.
3
   Although Appellant’s sole issue raised on appeal pertains to the
discretionary aspects of his sentence, we note that issues pertaining to
Alleyne directly implicate the legality of the sentence, which this Court may
(Footnote Continued Next Page)


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J-S67028-14


      Based on the foregoing, we are constrained to conclude the trial court

erred when it imposed the mandatory minimum sentence in this case.

Accordingly, the trial court’s March 14, 2014 judgment of sentence is

vacated, and the case is remanded for resentencing, without the mandatory

minimum sentence, consistent with this judgment order.

      Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




                       _______________________
(Footnote Continued)

raise sua sponte. Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa.
Super. 2014); Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa.
Super. 2014). Furthermore, our disposition renders Appellant’s discretionary
aspects of sentence issue moot. Commonwealth v. Tanner, 61 A.3d
1043, 1046 n.3 (Pa. Super. 2013).



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