J-S48003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN STEPHEN SMITH                      :
                                               :
                       Appellant               :   No. 168 MDA 2017

           Appeal from the Judgment of Sentence December 19, 2016
               In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0000996-2011


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                     FILED MAY 03, 2018

        Stephen Stephen Smith appeals from the judgment of sentence imposed

on December 19, 2016, in the Court of Common Pleas of Schuylkill County, to

serve an aggregate term of five to ten years’ imprisonment and to pay fines

totaling $40,000.00. This matter has been returned to this Court following

remand for an evidentiary hearing on the question of the timeliness of this

appeal.    As the trial court determined that the appeal is timely, we now

address Smith’s sole claim, namely, that the trial court “err[ed] and

commit[ed] an abuse of discretion when it imposed an excessive fine . . . with

no indication as to whether Smith could pay that fine.” Smith’s Brief at 4.

Because we find the trial court imposed an illegal sentence, namely, unlawful


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*   Retired Senior Judge assigned to the Superior Court.
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mandatory minimum fines, we vacate the judgment of sentence only as to the

fines imposed at Counts 1 and 2, and remand for resentencing.

      The procedural history of this case was summarized in our earlier

decision in this appeal:

            On October 24, 2012, a jury found Smith guilty of ten drug
      charges.1 Thereafter, on December 7, 2012, Smith was sentenced
      to an aggregate term of 8 to 16 years’ imprisonment, and to pay
      $40,000.00 in fines, which included mandatory minimum
      sentences and fines pursuant to 18 Pa.C.S. § 7508(a)(2)(i) and
      (ii). On direct appeal, this Court affirmed the judgment of
      sentence. See Commonwealth v. Smith, 87 A.3d 394 (Pa.
      Super. September 27, 2013) (unpublished memorandum), appeal
      denied, 87 A.3d 319 (Pa. March 5, 2014).
         1 The charges included four counts of possession with intent
         to deliver (PWID) controlled substances under 35 P.S. §
         780-113(a)(30); four counts of possession under 35 P.S. §
         780-113(a)(16); one count of possession of a small amount
         of marijuana under 35 P.S. § 780-113(a)(31); and one
         count of possession of drug paraphernalia under 35 P.S. §
         780-113(a)(32).

            While Smith’s direct appeal was proceeding, the United
      States Supreme Court decided Alleyne v. United States, 133 S.
      Ct. 2151 (2013), holding “Any 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.” Id. at 2155. The
      following year, this Court held that Section 7508 is
      “unconstitutional in its entirety” in light of Alleyne.
      Commonwealth v. Vargas, 108 A.3d 858, 876 (Pa. Super.
      2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015); see
      also Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super.
      2014), appeal denied, 121 A.3d 494 (Pa. 2015); Commonwealth
      v. Valentine, 101 A.3d 801 (Pa. Super. 2014), appeal denied,
      124 A.3d 309 (Pa. 2015). Additionally, this Court has held that if
      a defendant’s case was pending on direct appeal when Alleyne
      was handed down, that defendant is entitled to the benefit of the
      holding in Alleyne. See Commonwealth v. Newman, 99 A.3d
      86, 90 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496


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     (Pa. 2015); see also Commonwealth v. Ruiz, 131 A.2d 54 (Pa.
     Super. 2015).

            Subsequent to his direct appeal, Smith filed a timely PCRA2
     petition and obtained a hearing before the PCRA court.
     Thereafter, on May 14, 2015, the PCRA court denied Smith’s
     petition but, based on Alleyne, granted relief concerning the
     mandatory sentences at Count 1 and Count 2 that were imposed
     pursuant to Section 7508, and scheduled the matter for
     resentencing. See Order, 5/14/2015, citing Fennel, supra, and
     Valentine, supra. See also PCRA Court Opinion, 5/20/2015, at
     7-8.


        2   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.


            On June 5, 2015, Smith appealed the denial of PCRA relief.
     This Court affirmed, and the Pennsylvania Supreme Court denied
     allowance of appeal. Commonwealth v. Smith, 141 A.3d 592
     (Pa. Super. 2016), appeal denied, 141 A.3d 480 (Pa. 2016).
     Thereafter, the trial court resentenced Smith on December 19,
     2016. Specifically, the trial court sentenced Smith to serve an
     aggregate term of five to ten years’ imprisonment and to pay fines
     totaling $40,000.00. This appeal followed.3

        3 On January 25, 2017, the trial court issued a Pa.R.A.P.
        1925(b) order, and Smith filed a pro se concise statement
        that was hand dated February 14, 2017, and docketed on
        February 21, 2017.       Smith’s counsel filed a concise
        statement on March 20, 2017, after the trial court granted
        counsel’s motion for extension of time.

Commonwealth v. Smith, 175 A.3d 1099 (Pa. Super. 2017) (unpublished

memorandum, at 1-3).

     As mentioned above, we previously remanded this case to the trial court

to determine whether Smith’s appeal was timely under the prisoner mailbox

rule. Pursuant to that rule, a pro se prisoner’s document is deemed filed on

the date he delivers it to prison authorities for mailing. Commonwealth v.



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Jones, 700 A.2d 423, 426 (Pa. 1997). See also Commonwealth v. Cooper,

710 A.2d 76, 78 (Pa. Super. 1998) (“[F]or prisoners proceeding pro se, a

notice is deemed filed as of the date it is deposited in the prison mail

system.”). The trial court held an evidentiary hearing and determined that

Smith mailed his notice of appeal from prison within the 30-day appeal

period.1, 2 See Order, 11/17/2017, see also Trial Court Opinion, 11/17/2017.

Therefore, we turn to examine the substantive issue raised by Smith in this

appeal.

       Preliminarily, it is important to highlight certain points. First, the record

reflects that in resentencing Smith the trial court imposed fines collectively

amounting to $40,000.00, i.e., a $30,000.00 fine at Count 1, and a

$10,000.00 fine at Count 2. Second, even though the PCRA court vacated the
____________________________________________


1 After the trial court made its determination, and the certified record was
returned to this Court, trial counsel, on January 2, 2018, filed an application
for remand and for withdrawal of counsel and appointment of private counsel.
On January 10, 2018, this Court granted the application in part, and denied
the application in part. This Court directed the trial court to appoint substitute
counsel for Smith within 20 days of the date of the order and notify the
Prothonotary of this Court within 10 days of the appointment, and denied the
request for remand. See Order, 1/10/2018. New counsel entered his
appearance on February 28, 2018.

2 Also on January 2, 2018, appointed counsel filed an application to amend
the Statement of Matters Complained of on Appeal. Specifically, the counseled
concise statement raises the following issue: “The trial court erred and
committed an abuse of discretion when it imposed an excessive fine of
$10,000.00 and ordered [Smith] to pay the prosecution and court costs.”
Concise Statement, 3/20/2017. This Court denied the application without
prejudice for new counsel to request amendment. See Order, 1/10/2018.
New counsel has not filed a request to amend the concise statement.



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sentences imposed at Counts 1 and 2 as illegal, the trial court ordered Smith

to pay the same amount of fines as had been originally imposed, and

specifically referenced its original fine with respect to Count 1. Third, the trial

court’s opinion explicitly states these fines were imposed pursuant to 18

Pa.C.S. § 7508.3 Fourth, Section 7508 has been held unconstitutional in its


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3      Section 7508 provides, in relevant part:

       (2) A person who is convicted of violating section 13(a)(14), (30)
       or (37) of The Controlled Substance, Drug, Device and Cosmetic
       Act where the controlled substance or a mixture containing it is
       classified in Schedule I or Schedule II under section 4 of that act
       and is a narcotic drug shall, upon conviction, be sentenced to a
       mandatory minimum term of imprisonment and a fine as set forth
       in this subsection:

           (i) when the aggregate weight of the compound or
           mixture containing the substance involved is at least 2.0
           grams and less than ten grams; two years in prison and a
           fine of $ 5,000 or such larger amount as is sufficient to
           exhaust the assets uttilized in and the proceeds from the
           illegal activity; however, if at the time of sentencing the
           defendant has been convicted of another drug trafficking
           offense: three years in prison and $ 10,000 or such larger
           amount as is sufficient to exhaust the assets utilized in and
           the proceeds from the illegal activity;

           (ii) when the aggregate weight of the compound or
           mixture containing the substance involved is at least ten
           grams and less than 100 grams; three years in prison and
           a fine of $ 15,000 or such larger amount as is sufficient to
           exhaust the assets utilized in and the proceeds from the
           illegal activity; however, if at the time of sentencing the
           defendant has been convicted of another drug trafficking
           offense: five years in prison and $ 30,000 or such larger



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entirety. See Commonwealth v. Vargas, 108 A.3d 858, 876 (Pa. Super.

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).           Consequently,

this appeal raises the issue whether the trial court resentenced Smith to an

illegal sentence.

       The issue of an unlawful mandatory sentence is non-waivable. See

Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016) (an Alleyne

challenge implicates the legality of a sentence for issue preservation purposes

and is non waivable and may be raised by the court sua sponte). Therefore,

we may address, sua sponte, the issue of whether the trial court imposed

unlawful mandatory fines in the aggregate amount of $40,000.00.

       It is well settled that “[i]ssues relating to the legality of a sentence are

questions of law. Our standard of review over such questions is de novo and

our scope of review is plenary.” Commonwealth v. Ali, 112 A.3d 1210, 1225

(Pa. Super. 2015).

       Here, on resentencing, the trial court was required to disregard Section

7508. See Vargas, supra. However, the trial court ordered Smith to “pay a

fine of $30,000 as was imposed back then” on Count 1, and “pay a $10,000

fine” on Count 2, with no further elaboration.         N.T., 12/19/2016, at 22

(emphasis added). Furthermore, the trial court states in its opinion authored

in support of the December 19, 2016, sentence that the court “imposed the
____________________________________________


           amount as is sufficient to exhaust the assets utilized in and
           the proceeds from the illegal activity; ….

18 Pa.C.S. § 7508(a)(2) (i), (ii).

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minimum mandatory $30,000.00 fine in Count 1 in accord with 18 Pa.C.S.A.

§ 7508(a)(2)(ii), and $10,000.00 fine in Count 2 for a Schedule I Controlled

Substance, Oxycodone in an amount of at least 2.0 grams and less than 10

as required by 18 Pa.C.S.A. § 7508(a)(2)(i).” Trial Court Opinion, 3/27/2017,

at 4. The trial court further states, “The verdict slip specifically required the

jury to determine the amounts of cocaine and oxycodone [Smith] was

trafficking.” Id.

       The trial court’s reliance upon the fact that there were jury findings

regarding the weights of the drugs is misplaced.           In Commonwealth v.

Mosley, 114 A.3d 1072 (Pa. Super. 2015), appeal denied, 166 A.3d 1215 (Pa.

2017), this Court was faced with the very same issue of whether the trial

court’s imposition of a mandatory minimum sentence pursuant to Section

7508 was constitutional where the jury, pursuant to a special verdict slip,

determined the amount of drugs. Id., 114 A.3d at 1090. The Mosley Court

concluded that “the trial court performed an impermissible legislative function

by creating a new procedure in an effort to impose the mandatory minimum

sentence in compliance with Alleyne.” Id. at 1091. Therefore, in this case,

the jury’s findings as to the weight of the controlled substances do not allow

the trial court to justify the imposition of the mandatory fines imposed

pursuant to Section 7508.

       The Commonwealth states the trial court’s opinion “curiously gives a

recitation of the mandatory minimum fines that were applicable to [Smith’s]

case   and   formed    the   basis   of   the   sentence    originally   imposed.”

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Commonwealth’s Brief, at 15. The Commonwealth maintains “it is clear from

the record that the fines imposed were not imposed because the court was

required to impose them.”          Id.     Specifically, the Commonwealth asserts

“[t]here was no notice of intent to seek a mandatory sentence” pursuant to

7508(b), and “no discussion of imposing a mandatory fine at the sentencing

hearing.” Id.

       We find the Commonwealth’s attempt to re-characterize the trial court’s

opinion unpersuasive. Furthermore, while we recognize the Commonwealth

did not seek a mandatory sentence upon resentencing, and that the trial court

has discretionary authority to determine the appropriate fine amount, we are

compelled to find, in light of the trial court’s reliance on the original mandatory

fines at resentencing and its citation to Section 7508 in its March 27, 2017,

Pa.R.A.P. 1925(b) opinion, that the trial court resentenced Smith to pay

unlawful mandatory minimum fines that render his current sentence illegal.

       Accordingly, we vacate the judgment of sentence related to the fines

imposed at Counts 1 and 2 and remand for resentencing.4
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4 We remind the trial court and the parties that Section 9726(c) requires that
it be “of record” that the defendant can pay the fine. Commonwealth v.
Boyd, 73 A.3d 1269, 1273 (Pa. Super. 2013). See 42 Pa.C.S. § 9726(c)(1)
(“The court shall not sentence a defendant to pay a fine unless it appears of
record that: (1) the defendant is or will be able to pay the fine; and (2) the
fine will not prevent the defendant from making restitution or reparation to
the victim of the crime.”) Additionally, “[i]n determining the amount and
method of payment of a fine, the court shall take into account the financial
resources of the defendant and the nature of the burden that its payment will



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Judgment of sentence vacated only as to fines imposed at Counts 1 and 2.
Case remanded for resentencing on fines. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




____________________________________________


impose. 42 Pa.C.S. § 9726(d). “Imposition of a fine is not precluded merely
because the defendant cannot pay the fine immediately or because he cannot
do so without difficulty.” Commonwealth v. Thomas, 879 A.2d 246, 264
(Pa. Super. 2005) (citation omitted).


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