J-E01009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL SHAYNE BOYD

                            Appellant              No. 2333 EDA 2013


             Appeal from the Judgment of Sentence May 30, 2012
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0000814-2011


BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

JUDGMENT ORDER BY MUNDY, J.:                         FILED JULY 21, 2015

       Appellant, Michael Shayne Boyd, appeals from the May 30, 2012

aggregate judgment of sentence of 12 to 25 years’ imprisonment, imposed

after he was found guilty of two counts of aggravated assault, and one count

each of firearms not to be carried without a license, possession of a weapon,

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

(PWID).1 After careful review, we vacate and remand for resentencing.

       Appellant challenges two five-year mandatory minimum sentences he

received under 42 Pa.C.S.A. §§ 9712 and 9712.1. Appellant’s Brief at 13,



____________________________________________
1
  18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 6106(a)(1), 907(b), 35 P.S.
§§ 780-113(a)(16), and 780-113(a)(30), respectively.
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17. The Commonwealth acknowledges that Sections 9712 and 9712.1 were

applied. Commonwealth’s Brief at 13, 20.

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

banc), this Court held that Section 9712.1 was facially unconstitutional. Id.

at 102. In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

this Court, applying Newman’s rationale, concluded that Section 9712 is

also facially unconstitutional. Id. at 811-812. Recently, our Supreme Court

agreed with Newman and Valentine’s conclusions. See Commonwealth

v. Hopkins, --- A.3d ---, 2015 WL 3949099, at *1, 10, 11, 13 (Pa. 2015)

(concluding that 18 Pa.C.S.A. § 6317 is facially unconstitutional because its

various subsections could not be severed from each other under 1 Pa.C.S.A.

§ 1925).    As Sections 9712 and 9712.1 are unconstitutional on their face,

there is no set of circumstances in which the statutes can be constitutionally

applied.    United States v. Salerno, 481 U.S. 739, 745 (1987); accord

Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super. 2013), appeal

denied, 91 A.3d 162 (Pa. 2014). Therefore, because the trial court applied

facially unconstitutional statutes in sentencing Appellant, the resultant

sentences were illegal.2 As our decision upsets the trial court’s sentencing

scheme, we must vacate the entire judgment of sentence and remand for



____________________________________________
2
  In light of our disposition, Appellant’s remaining challenges to the
mandatory minimum sentences are moot.



                                           -2-
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resentencing. See generally Commonwealth v. Tanner, 61 A.3d 1043,

1048 (Pa. Super. 2013).

      Based on the foregoing, we conclude the trial court imposed an illegal

sentence   when    it   applied   Sections   9712   and   9712.1   to   Appellant.

Accordingly, the trial court’s May 30, 2012 judgment of sentence is vacated,

and the case is remanded for resentencing, without consideration of the

mandatory minimum provisions, consistent with this judgment order.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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