J-S50019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHANE LUIS SANTIAGO

                            Appellant                No. 3449 EDA 2014


                 Appeal from the PCRA Order November 5, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000322-2013
                                          CP-15-CR-0004491-2012

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                        FILED DECEMBER 11, 2015

       Appellant, Shane Luis Santiago, appeals, pro se, from the November 5,

2014 order, dismissing his first petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1        After careful

review, we reverse and remand for resentencing.

       On February 18, 2014, the trial court imposed an aggregate judgment

of sentence of 6½ to 13 years’ imprisonment, following his open guilty plea

to two counts of possession with the intent to deliver (PWID), one count of

conspiracy, five counts of animal fighting, and one count of endangering the
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1
  The PCRA court, in its October 8, 2014 Pennsylvania Rule of Criminal
Procedure 907 notice of intention to dismiss Appellant’s PCRA petition
without a hearing, granted counsel’s September 2, 2014 petition to withdraw
as PCRA counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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welfare of children.2     Appellant did not file a direct appeal of his sentence

with this Court. Therefore, Appellant’s judgment of sentence became final

on March 20, 2014, when the time to file a notice of appeal to this Court

expired.    See 42 Pa.C.S.A. § 9545(b)(3) (stating a judgment of sentence

becomes final at the conclusion of direct review); Pa.R.A.P. 903(a)

(providing that a notice of appeal must be filed within 30 days of the order

being appealed). Appellant timely filed this PCRA petition on July 28, 2014.3

       In this appeal, Appellant argues that he was entitled to the application

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


2
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(c), 5511(h.1)(3), and
4304(a)(1), respectively. The trial court imposed the following sentences.
The trial court sentenced Appellant to two to four years’ incarceration for
one count of PWID to run consecutive to the sentence of six to twelve
months’ incarceration for the second count of PWID. Further, the trial court
imposed a sentence of one to two years’ incarceration for the conspiracy
conviction, consecutive to the sentence imposed for PWID; one to two years’
incarceration each on two counts of animal fighting, concurrent to each other
and concurrent to the sentence imposed for PWID; eighteen to thirty-six
months’ incarceration for a third conviction of animal fighting, consecutive to
the sentence for conspiracy; and eighteen to thirty-six months’ incarceration
for endangering the welfare of children, consecutive to the third sentence for
animal fighting. The trial court imposed no further penalty on the two
remaining charges of animal fighting. Moreover, the sentence of two to four
years’ for one count of PWID represented the mandatory minimum for PWID
within a school zone pursuant to Section 6317 of the Crimes Code, 18
Pa.C.S.A. §§ 101-9402.
3
  As noted above, the PCRA court dismissed his petition on November 5,
2014. Appellant filed a timely appeal on December 5, 2014. The PCRA
court did not order Appellant to file a concise statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925. The PCRA court filed a Rule 1925(a) opinion on December
11, 2014.



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133 S. Ct. 2151 (2013), which renders unconstitutional the mandatory

minimum sentence he received pursuant to Section 6317, for PWID within a

school zone.4 Alleyne retroactively applies to all cases that were pending

on direct appeal when it was decided.            Commonwealth v. Newman, 99

A.3d 86, 90 (Pa. Super. 2014) (en banc). Herein, Appellant was entitled to

the application of Alleyne in his sentencing because the decision in Alleyne

was announced on June 17, 2013, both before the trial court initially

sentenced Appellant on December 17, 2013, and before the trial court

resentenced him on February 18, 2014.               In Alleyne, the United States

Supreme Court held that the guarantee of right to a jury trial dictated that

any fact that increases the mandatory minimum sentence for a crime “is ‘an

element’ [of the offense] that must be submitted to the jury and found

beyond a reasonable doubt.” Alleyne, supra at 2163. Later, in Newman,

our Court, applying Alleyne, held that the sentencing mechanism provisions

of   mandatory      minimum       sentencing     statutes,   allowing   a   judge   to
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4
  Appellant did not assert Alleyne as a basis for relief in his PCRA petition,
but this Court has stated that “[a] challenge to the legality of a sentence
may be entertained as long as the reviewing court has jurisdiction.”
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011).
Because we have jurisdiction to review Appellant’s appeal of his timely PCRA
petition, we may address his challenge to the legality of his sentence. See
id. Appellant, in his pro se appellate brief, acknowledges that the only issue
he identified in his PCRA petition, relating to his suppression hearing, is
withdrawn or otherwise waived. Appellant’s Brief at 12. Moreover, the
Commonwealth acknowledges that Appellant was sentenced to a mandatory
minimum sentence pursuant to Section 6317. Commonwealth’s Brief at 2.




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automatically increase a defendant’s sentence based on a preponderance of

the evidence, are not severable from the other subsections, and thus,

Alleyne renders Pennsylvania’s mandatory minimum sentencing statutes of

this type unconstitutional.   Newman, supra at 102; Commonwealth v.

Wolfe, 106 A.3d 800, 806 (Pa. Super. 2014), appeal granted, 121 A.3d 443

(Pa. 2015).

      This Court recently addressed a case with an identical procedural

posture that controls the outcome of this case.     See Commonwealth v.

Melendez-Negron, --- A.3d ---, 2015 WL 5657130, at *3 (Pa. Super.

2015). Therein, after the appellant pled guilty, the trial court sentenced him

to the mandatory minimum sentence in Section 9712.1, based on a

conviction of PWID with a firearm, on November 15, 2013, after Alleyne

was decided.     Id. at *1.     The appellant’s sentence became final on

December 16, 2013 because he did not file a direct appeal with this Court.

Id. On July 7, 2014, the appellant filed a timely PCRA petition. Id. This

Court decided the mandatory minimum sentencing scheme, under which the

appellant was sentenced, was unconstitutional in light of Alleyne.     Id. at

*2. We further concluded that the appellant’s admission, in his guilty plea,

of the element that triggered the application of a mandatory minimum, did

not remedy the Alleyne violation inherent in Section 9712.1.      Melendez-

Negron, supra at *3 (applying Commonwealth v. Cardwell, 105 A.3d

748, 754-55, appeal denied, 121 A.3d 494 (Pa. 2015).


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       Herein, Appellant was subjected to the mandatory minimum sentence

for PWID within a school zone based on his admission of the factual basis of

his conviction.     This case is procedurally identical to Melendez-Negron

because Appellant pled guilty and was sentenced to a mandatory sentence

after Alleyne was decided, his judgment of sentence became final, and then

he filed a timely PCRA petition. Therefore, our disposition is controlled by

Melendez-Negron.          Consequently, Appellant’s sentence is illegal because

Alleyne rendered Section 6317 facially unconstitutional.5 See id. Further,

the Alleyne violation is not remedied by Appellant’s admission in his guilty

plea to the fact that resulted in the imposition of a mandatory minimum

sentence under Section 6317.              See id.   Therefore, because Appellant

received an unconstitutional mandatory minimum sentence in violation of

Alleyne, we reverse the PCRA court’s November 5, 2014 order and remand

this case for resentencing without the consideration of the mandatory

minimum sentence in Section 6317. See id.

       Order reversed.         Case remanded for resentencing.       Jurisdiction

relinquished.



____________________________________________


5
  We note that Section 6317 has been recognized as unconstitutional.
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015);
Commonwealth v. Bizzel, 107 A.3d 102, 106 (Pa. Super. 2014);
Commonwealth v. Watley, 81 A.3d 108, 117 n.4 (Pa. Super. 2013),
appeal denied, 95 A.3d 277 (Pa. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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