J-S01015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :         IN THE SUPERIOR COURT OF
                                               :               PENNSYLVANIA
              v.                               :
                                               :
BRIAN R. ELISHA,                               :
                                               :
                   Appellant                   :              No. 1937 EDA 2014

               Appeal from the Judgment of Sentence June 6, 2014
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0005787-2010;
                             CP-51-CR-0009933-2010

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                   FILED APRIL 08, 2016

        Brian R. Elisha (“Elisha”) appeals from the judgment of sentence,

entered at CP-51-CR-0009933-2010, following his conviction of robbery,

firearms not to be carried without a license and possession of an instrument

of crime and possession of a firearm by a prohibited person (collectively,

“the robbery charges”).1         Elisha further appeals from the judgment of

sentence, entered at CP-51-CR-0005787-2010, following his conviction of

possession of a controlled substance, possession with intent to deliver a

controlled    substance,   and    possession       or   use   of   drug   paraphernalia

(collectively, “the drug charges”).2 We vacate the judgment of sentence and

remand for resentencing.




1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6106(a)(1), 907(a), 6501(a)(1).
2
    35 P.S. §§ 780-113(a)(16), (30), and (32).
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      In separate proceedings, Elisha was found guilty of the robbery

charges and the drug charges. On May 27, 2014, Elisha filed a Petition to

Bar Application of Mandatory Minimum Sentencing Statutes. After a hearing,

the trial court denied Elisha’s Petition.   On June 6, 2014, the trial court

sentenced Elisha, for his conviction of the robbery charges and the drug

charges, to an aggregate prison term of five to ten years.

      The trial court described what next transpired as follows:

             On June 27, 2014, [Elisha] timely filed a Notice of Appeal
      [of the robbery charges] with the Superior Court of Pennsylvania
      (“Superior Court”). However, [Elisha’s] appeal failed to include
      [the drug charges], whereupon[,] on October 1, 2014, [Elisha]
      petitioned [the] Superior Court for leave to amend the Notice of
      Appeal. On October 21, 2014, [the] Superior Court] granted
      leave to so amend, to add [the drug charges]. On October 27,
      2014, [Elisha] filed an Amended Notice of Appeal with [the]
      Superior Court, adding [the drug charges] to the instant appeal
      of [the robbery charges].

Trial Court Opinion, 2/20/15, at 2.

      Elisha presents the following claim for our review:

      Did the [trial] court err in sentencing [Elisha] to 5-10 years for
      robbery and 1 to 2 years for PWID[,] where mandatory minimum
      and deadly weapon enhancement statutes violate Alleyne v.
      United States[, ___ U.S. ___, 133 S.Ct. 2151, 186 L. Ed. 2d
      314 (2013),] as statutes require the [sentencing] court to make
      a factual finding by a preponderance of the evidence prior to
      increasing a defendant’s sentence?

Brief for Appellant at 4.

      In its Opinion, the trial court correctly acknowledged that Pennsylvania

courts, applying Alleyne, have concluded that the mandatory minimum

sentences set forth at 42 Pa.C.S.A. § 9712 and 18 Pa.C.S.A. § 7508 are


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unconstitutional.   See Trial Court Opinion, 2/20/15, at 23.           See also

Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014) (applying

Alleyene and concluding that 18 Pa.C.S.A. § 7508 is unconstitutional);

Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014)

(applying   Alleyene    and   concluding   that   42   Pa.C.S.A.   §   9712   is

unconstitutional). The trial court further stated the following:

            With respect to both 42 Pa.C.S.[A.] § 9712, and 18
      Pa.C.S.[A.] § 7508, this [c]ourt would willingly accept a remand
      for resentencing because new rulings pertaining to cases on
      direct appeal are entitled to retroactive effect[,] so long as the
      applicable issue is preserved.[3]

             Therefore, this [c]ourt will not contest the vacating of the
      mandatory sentence with remand to resentence [Elisha] in a
      traditional, individualized manner consistent with the current
      state of Pennsylvania criminal law.

Trial Court Opinion, 2/20/15, at 23-24 (citations omitted).

      As recognized by the trial court, the mandatory minimum sentencing

provisions set forth at 42 Pa.C.S.A. § 9712 and 18 Pa.C.S.A. § 7508 are

unconstitutional in light of Alleyene. Accordingly, we vacate the judgment

of sentence and remand for resentencing without the application of the

mandatory minimum sentencing provisions set forth at 42 Pa.C.S.A. § 9712

and 18 Pa.C.S.A. § 7508.




3
   Issues pertaining to Alleyne implicate the legality of the sentence.
Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa. Super. 2014).
Accordingly, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014).


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     Judgment of sentence vacated.     Case remanded for resentencing in

accordance with this Memorandum. Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/8/2016




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