J-S02010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JUAN J. DAVILLA

                            Appellant              No. 2917 EDA 2013


           Appeal from the Judgment of Sentence September 20, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005313-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                            FILED APRIL 14, 2015

       Appellant, Juan J. Davilla, appeals from the September 20, 2013

aggregate judgment of sentence of five to ten years’ incarceration plus a

consecutive five years’ probation, imposed following his conviction by a jury

of possession with intent to deliver a controlled substance (PWID), to wit

heroin and cocaine, possession of a controlled substance, conspiracy, and

firearms not to be carried without a license.1     Appellant challenges the

legality of imposing a mandatory sentence in this case. After careful review,

we vacate Appellant’s sentence and remand for resentencing.

       A summary of the pertinent factual and procedural history of the case

follows.    During a police surveillance operation near the corner of Hope
____________________________________________
1
  35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(16), 18 Pa.C.S.A. §§ 903,
and 6106(a)(1), respectively. An additional charge of carrying a firearm in
public in Philadelphia, 18 Pa.C.S.A. § 6108, was nolle prossed.
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Street and Sullivan Street in the city of Philadelphia, Pennsylvania, Appellant

was present with co-defendant, Eddie Mojica.               Appellant and Mojica were

observed conducting apparent drug transactions with three individuals, who,

when stopped by back-up officers immediately after they left the scene,

were found in possession of packets containing heroin and/or packets

containing cocaine.      Appellant was then observed entering a Ford Ranger

parked nearby, where he remained for about two minutes.

        Appellant and Mojica were arrested and packets of cocaine, packets of

heroin, and small amounts of cash were found on their persons.                      A

subsequent warranted search of the Ford Ranger yielded more quantities of

cocaine and heroin, two handguns, and $525.00 in cash, all located in the

passenger      airbag   compartment.           Appellant    was   charged   with   the

aforementioned crimes, and the case proceeded to a jury trial held on July

19-24, 2013.

        During trial, the parties debated before the trial court the import of the

United States Supreme Court’s decision in Alleyne v. United States, 133

S. Ct. 2151 (2013), handed down a month earlier on June 17, 2013. In the

event of conviction, the Commonwealth sought imposition of a mandatory

sentence under 42 Pa.C.S.A. § 9712.1, based on the close proximity of the

drugs to a firearm, and 18 Pa.C.S.A. § 6317, based on the offenses

occurring within 1,000 feet of a school and 250 feet of a recreation area.2
____________________________________________
2
    Those provisions provide in pertinent part as follows.

(Footnote Continued Next Page)

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                       _______________________
(Footnote Continued)
             § 9712.1. Sentences for certain drug offenses
             committed with firearms

             (a) Mandatory sentence.--Any person who is
             convicted of a violation of section 13(a)(30) of the
             act of April 14, 1972 (P.L. 233, No. 64), [FN1]
             known as The Controlled Substance, Drug, Device
             and Cosmetic Act, when at the time of the offense
             the person or the person’s accomplice is in physical
             possession or control of a firearm, whether visible,
             concealed about the person or the person's
             accomplice or within the actor’s or accomplice's
             reach or in close proximity to the controlled
             substance, shall likewise be sentenced to a minimum
             sentence of at least five years of total confinement.

                                                 …

             (c) Proof at sentencing.--Provisions of this section
             shall not be an element of the crime, and notice
             thereof to the defendant shall not be required prior
             to conviction, but reasonable notice of the
             Commonwealth's intention to proceed under this
             section shall be provided after conviction and before
             sentencing. The applicability of this section shall be
             determined at sentencing. The court shall consider
             any evidence presented at trial and shall afford the
             Commonwealth and the defendant an opportunity to
             present any necessary additional evidence and shall
             determine, by a preponderance of the evidence, if
             this section is applicable.

                                                 …

42 Pa.C.S.A. § 9712.1.

             § 6317. Drug-free school zones

             (a) General rule.--A person 18 years of age or
             older who is convicted in any court of this
             Commonwealth of a violation of section 13(a)(14) or
             (30) of the act of April 14, 1972 (P.L. 233, No. 64),
(Footnote Continued Next Page)

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Appellant argued Alleyne rendered these statutes unconstitutional in their
                       _______________________
(Footnote Continued)
             known as The Controlled Substance, Drug, Device
             and Cosmetic Act, shall, if the delivery or possession
             with intent to deliver of the controlled substance
             occurred within 1,000 feet of the real property on
             which is located a public, private or parochial school
             or a college or university or within 250 feet of the
             real property on which is located a recreation center
             or playground or on a school bus, be sentenced to a
             minimum sentence of at least two years of total
             confinement, notwithstanding any other provision of
             this title, The Controlled Substance, Drug, Device
             and Cosmetic Act or other statute to the contrary.
             The maximum term of imprisonment shall be four
             years for any offense:

             (1) subject to this section; and

             (2) for which The Controlled Substance, Drug, Device
             and Cosmetic Act provides for a maximum term of
             imprisonment of less than four years.

             …

             (b) Proof at sentencing.--The provisions of this
             section shall not be an element of the crime. Notice
             of the applicability of this section to the defendant
             shall not be required prior to conviction, but
             reasonable notice of the Commonwealth's intention
             to proceed under this section shall be provided after
             conviction and before sentencing. The applicability of
             this section shall be determined at sentencing. The
             court shall consider evidence presented at trial, shall
             afford the Commonwealth and the defendant an
             opportunity to present necessary additional evidence
             and shall determine by a preponderance of the
             evidence if this section is applicable.

                                                 …

18 Pa.C.S.A. § 6317.


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entirety,   precluding     imposition     of   the   mandatory   sentences.    The

Commonwealth argued that the unconstitutional aspects of the statute were

severable and compliance with Alleyne would be possible if the pertinent

triggering facts were submitted to the jury to find beyond a reasonable

doubt.

       The trial court agreed with the Commonwealth and devised a special

verdict slip. In it, the jury was asked to indicate whether the drugs located

in the red truck were in close proximity to a firearm; whether Appellant was

in physical possession or control of a firearm; whether the PWID charge

relative to the drugs located in the red truck occurred within 1,000 feet of a

school; and whether the PWID charge relative to the drugs located in the red

truck occurred within 250 feet of a recreation center.3             The trial court
____________________________________________
3
 The parties agree that pertinent to the issues in this appeal the questions
were presented to the jury in a special jury interrogatory as follows.

              3) If you answered yes to Question #2 [whether
              Appellant was guilty of PWID], does that finding of
              guilt include the narcotics (heroin and cocaine)
              recovered from the red Ford truck? If yes, answer
              Questions (a), (b), (c), (d), and (e). If no, do not
              consider (a), (b), (c), (d), and (e).

                     (a)    Were the narcotics (heroin and cocaine),
                            for which you have found the defendant
                            guilty, in proximity (close or near) to a
                            firearm?

                     (b)    Was the defendant, his accomplice, or
                            his conspirator in physical possession or
                            control of a firearm?

(Footnote Continued Next Page)

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instructed the     jury that each question “has to           be   proven by the

Commonwealth beyond a reasonable doubt.” N.T., 7/23/13, at 58.

      The jury found Appellant guilty of all charges and answered the above

special questions in the affirmative, with exception of whether the PWID

offense took place within 1,000 feet of a school. At the September 20, 2013

sentencing, the trial court imposed an aggregate sentence of five to ten

years’ incarceration plus a consecutive five years’ probation.           Specifically,

the trial court, applying the mandatory sentence under Section 9712.1,

imposed a term of incarceration of five to ten years on the PWID charge and

                       _______________________
(Footnote Continued)
                       (c)   Was a firearm within the defendant’s, his
                             accomplice’s, or his conspirator’s reach?

                       (d)   Were the narcotics (heroin and cocaine)
                             found within the red Ford truck within
                             1,000 feet of a school?

                       (e)   Were the narcotics (heroin and cocaine)
                             found within the red Ford truck within
                             250 feet of a recreation center?

Appellant’s Brief at 8. We note with disapproval the absence of the jury
interrogatories or jury slip in the certified record. Neither is there a copy of
the trial transcripts from July 20-22, 2013, during which the form of the
verdict slip was discussed and approved by the trial court. It is Appellant’s
responsibility to ensure the record certified on appeal is complete.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. Super.
2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007). Instantly, the
gap in the record does not impede our review, and we decline to find waiver.
See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006)
(holding, “any claims that cannot be resolved in the absence of the
necessary transcript or transcripts must be deemed waived for the purpose
of appellate review”), appeal denied, 916 A.2d 632 (Pa. 2007).



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a concurrent term of five to ten years on the conspiracy charge.            The

possession of a controlled substance count merged with the PWID. The trial

court imposed a consecutive five-year term of probation on the firearms not

to be carried without a license charge.          Appellant again objected to the

imposition of the mandatory sentence, citing Alleyne. Appellant did not file

a post-sentence motion. Appellant filed a timely notice of appeal on October

17, 2013.4

       On appeal, Appellant raises a single question for our review.

              Whether     42     Pa.C.S.A    section   9712.1     is
              unconstitutional in light of the recent United States
              Supreme Court decision in Alleyne v. United
              States, 133 S. Ct. 2151 (2013)[?]

Appellant’s Brief at 5.5

              At the outset, we note that issues pertaining to
              Alleyne go directly to the legality of the sentence.
              Commonwealth v. Lawrence, 99 A.3d 116, 123
              (Pa. Super. 2014). With this in mind, we begin by
              noting our well-settled standard of review.       “A
              challenge to the legality of a sentence … may be
____________________________________________
4
   The trial court ordered Appellant to file a concise statement pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant failed to
comply. However, as Appellant’s issue concerns the legality of his sentence,
it is not waivable. See Commonwealth v. Foster, 17 A.3d 332, 336 (Pa.
2011) (plurality) (noting that a challenge to the legality of a sentence is a
jurisdictional issue and is not waivable). The trial judge apparently retired
from the bench without preparing a Rule 1925(a) opinion for this appeal.
5
  Appellant’s Brief was filed a week after this Court handed down our
decision in Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
(en banc), but does not cite it. The Newman Court held Section 9712.1
unconstitutional in its entirety. Appellant’s brief anticipates the issues and
arguments ultimately resolved by Newman and its progeny.


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              entertained as long as the reviewing court has
              jurisdiction.” Commonwealth v. Borovichka, 18
              A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation
              omitted). It is also well-established that “[i]f no
              statutory authorization exists for a particular
              sentence, that sentence is illegal and subject to
              correction.” Commonwealth v. Rivera, 95 A.3d
              913, 915 (Pa. Super. 2014) (citation omitted). “An
              illegal sentence must be vacated.” Id. “Issues
              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. Akbar, 91 A.3d 227,
              238 (Pa. Super. 2014) (citations omitted).

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014).

       The mandatory sentencing provision of Section 9712.1 has recently

been held to be unconstitutional in its entirety as violative of the United

States Supreme Court’s ruling in Alleyne, that facts that increase

mandatory minimum sentences must be submitted to the finder of fact and

must be found beyond a reasonable doubt.6 Commonwealth v. Newman,

99 A.3d 86, 98 (Pa. Super. 2014) (en banc).

       As described above, the trial court, with concern for the implications of

Alleyne, specifically presented the triggering factual determination to the

jury to find beyond a reasonable doubt.          The Commonwealth argues this

precludes the relief Appellant seeks based on Alleyne.        “In this case, the

____________________________________________
6
  Because the mandatory sentence under Section 9712.1 is longer than the
mandatory sentence provided for in Section 6317, only the former was
imposed at sentencing. Our discussion, however, pertains equally to Section
6317, which was held unconstitutional in its entirety by this Court in
Commonwealth v. Bizzel, 107 A.3d 102, 105 (Pa. Super. 2014).


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jury did find that the Commonwealth established all relevant facts beyond a

reasonable doubt, including those facts triggering the mandatory minimum

sentence. Thus, the due process and Sixth Amendment concerns identified

in Alleyne were not implicated, and [Appellant] is not entitled to relief.”

Commonwealth’s Brief at 8.

      We   conclude   the   trial   court’s employment of an     unauthorized

alternative procedure to that mandated by Section 9712.1 is unavailing. In

Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014),

this Court determined that the mandatory minimum sentences imposed

pursuant to Sections 9712 and 9713 were unconstitutional even if the facts

that trigger the mandatory minimum sentence are submitted to the fact-

finder and found beyond a reasonable doubt, instead of by the trial court by

a preponderance of evidence at sentencing. Valentine, supra at 811-812.

In so concluding, the Court recognized that our decision in Newman held

“that the unconstitutional provisions of [comparable mandatory sentencing

provisions] are not severable … and that the statutes are therefore

unconstitutional as a whole.”       Id.; see also Commonwealth v. Fennell,

105 A.3d 13, 20 (Pa. Super. 2014) (holding that notwithstanding the fact

triggering the imposition of a mandatory sentence under 18 Pa.C.S.A. 7508

was stipulated to at trial, the statute was facially unconstitutional under the

principles of Newman and Valentine), Commonwealth v. Wolfe, 106

A.3d. 800, 805-806 (Pa. Super. 2014) (holding that the mandatory


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minimum     sentencing   provision    of      42   Pa.C.S.A.   9718(a)(1)   was

unconstitutional even though the triggering fact was also an element of the

offense for which Appellant was convicted). Construing a similarly worded

provision in 42 Pa.C.S.A. § 6317(b), we noted, “that, pursuant to Alleyne,

Section 6317(b) is now an element of the crime despite the language in the

statute specifically stating that it was not an element.             Thus, the

legislature clearly did not intend the result mandated by the decision in

Alleyne.” Commonwealth v. Bizzel, supra at 105 (emphasis in original).

As we noted in Newman, “it is manifestly the province of the General

Assembly to determine what new procedures must be created in order to

impose mandatory minimum sentences in Pennsylvania following Alleyne.”

Newman, supra at 101-102.

      Acknowledging Newman’s holding, the Commonwealth alternatively

argues any error is harmless. Commonwealth’s Brief at 9.

           The consistent point that emerges from [recent
           Superior Court] decisions, however, is even where
           Alleyne is not complied with, that is, even where
           sentencing factors that increase a sentence are left
           to a judge rather than a jury to determine, such
           error can be deemed harmless. When such analysis
           is applied here, where there was no Alleyne error,
           [Appellant] is not entitled to relief.

Id.

      We disagree. This Court has recently explained as follows.

           As noted above, Newman did acknowledge that
           Alleyne errors, like those under Apprendi v. New
           Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d

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            435 (2000), are subject to harmless error analysis.
            See generally Newman, supra at 98–100.
            However, if Newman’s overriding conclusion is, as
            Valentine suggests, that mandatory minimum
            statutes in Pennsylvania must be stricken in their
            entirety as facially unconstitutional, any discussion of
            harmless error is rendered moot. This is because,
            once the Court concludes that the subsections
            cannot be severed and must all be struck down,
            there is no statutorily authorized sentence upon
            which a harmless error analysis may be applied.
            See, e.g., Rivera, supra (stating, “[i]f no statutory
            authorization exists for a particular sentence, that
            sentence is illegal and subject to correction[]”)
            (citation omitted).

Fennell,   supra    at   19   n.5.      The   Commonwealth’s       reliance   on

Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc),

appeal denied, 95 A.3d 277 (Pa. 2014), and Commonwealth v. Matteson,

96 A.3d 1064 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014),

as support for the application of harmless error analysis is misplaced in light

of Newman and Valentine.

            In Valentine, this Court noted the tension between
            Newman, Watley, and Matteson. See Valentine,
            supra at 812 n. 4. However, the Valentine Court
            concluded that Newman controlled based on the
            conclusion in Newman that the subsections of the
            mandatory minimum statutes in Pennsylvania cannot
            be severed. Id. Based on the above passage, it
            appears that the Matteson Court concluded that
            Section 9718(a)(2) could still be constitutionally
            applied since the Commonwealth “proved every
            element of aggravated indecent assault of a child
            beyond a reasonable doubt, including a victim under
            the age of 13[.]”      Matteson, supra at 1067.
            However, the Matteson Court could not reach that
            conclusion, unless it first concluded implicitly that
            the various subsections of Section 9718 were

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            severable. Pursuant to this Court’s decision in
            Newman, we conclude this is not correct. In our
            view, Newman abrogated this Court’s decision in
            Matteson.

Wolfe, supra at 806 (footnote omitted).

      For these reasons, we conclude the trial court imposed an illegal

sentence that must be corrected. See Cardwell, supra. Accordingly, we

vacate the September 20, 2013 judgment of sentence and remand for

resentencing.

      Judgment of sentence vacated.         Case remanded.    Jurisdiction

relinquished.

      Judge Wecht joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




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