J-S60042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CRAIG MCCULLOUGH

                            Appellant                    No. 413 MDA 2014


             Appeal from the Judgment of Sentence August 8, 2012
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000407-2011


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED DECEMBER 15, 2014

        Appellant, Craig McCullough, appeals from the judgment of sentence

entered in the Lycoming County Court of Common Pleas following his jury

trial convictions for possession of a controlled substance, possession with

intent to deliver (“PWID”), and possession of paraphernalia.1 We vacate the

judgment of sentence and remand for further proceedings.

        The relevant facts and procedural history of this appeal are as follows.

On February 3, 2011, police entered the residence of 1643 Memorial

Avenue, in Williamsport, Pennsylvania, to execute an arrest warrant on Bilar

Sabui. While apprehending Sabui, police officers encountered Appellant and

another male in the residence.          They also observed controlled substances,

____________________________________________


1
    35 P.S. § 780-113(a)(16), (30), (32) respectively.
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drug paraphernalia, and firearms in plain view.     After obtaining a search

warrant, police officers discovered prepackaged crack cocaine and heroin,

drug paraphernalia, and three firearms in the residence.       Police officers

determined Appellant inhabited one of the rooms in the home after

discovering several identifying items, including his birth certificate, a work

ID card, and a personal letter addressed to Appellant therein.        Officers

charged Appellant with one count of PWID, one count of possession of crack

cocaine, one count of possession of heroin, and one count of possession of

drug paraphernalia.2

       On March 12, 2012, a jury convicted Appellant of possession of crack

cocaine, possession of heroin, and possession of drug paraphernalia, but did

not come to a decision on the PWID charge. On June 13, 2012, however, a

second jury convicted Appellant of PWID.

       On August 8, 2012, Appellant appeared before the court for sentencing

on all convictions.     Pursuant to 18 Pa.C.S. § 7508, the court found, by a

preponderance of the evidence, that Appellant was in possession of 2-10

grams of crack cocaine for purposes of his PWID charge.3      Pursuant to 42

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2
  Appellant was also charged with possession of a firearm, but the court
subsequently dismissed this charge upon motion of the Commonwealth.
3
  At his sentencing hearing, Appellant conceded to possessing 11.1 grams of
cocaine at the time of his arrest, however, he claimed that at least 1.2
grams would be consumed by the occupants of the residence, including
himself, leaving less than 10 grams for the PWID charge.



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Pa.C.S. § 9712.1, the court also found by a preponderance of the evidence

that Appellant was in possession of a firearm when he committed the crime

of PWID.      The court sentenced Appellant to five (5) to ten (10) years’

incarceration, the mandatory minimum sentence under Section 9712.1.4

The possession of crack cocaine conviction merged with the PWID conviction

for sentencing purposes. The court also imposed a concurrent sentence of

three (3) months to two (2) years’ incarceration for possession of heroin,

and an adjudication of guilt without further penalty for possession of drug

paraphernalia.

        On August 22, 2012, Appellant filed untimely post-sentence motions,

which the court denied.        On October 19, 2012, Appellant filed a notice of

appeal.    On December 14, 2012, this Court quashed Appellant’s notice of

appeal as untimely.         On December 13, 2013, Appellant filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”),5 alleging his counsel

was ineffective for failing to timely file a notice of appeal.

        On February 5, 2014, the court granted Appellant’s PCRA petition and

reinstated Appellant’s appellate rights nunc pro tunc. Appellant then timely

filed a notice of appeal on March 4, 2014.       On March 10, 2014, the court


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4
  The court did not impose any mandatory minimum sentence under Section
7508, presumably because its mandatory minimum sentence of 3-6 years’
incarceration is lower than the mandatory minimum under Section 9712.1.
5
    42 Pa.C.S. §§ 9541-9546.



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ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on March

17, 2014.6

       Appellant raises the following issue on appeal:

            WHETHER APPELLANT’S MANDATORY MINIMUM SENTENCE
            OF FIVE (5) YEARS IMPOSED PURSUANT TO 42 [PA.C.S. §]
            9712.1(A) CONSTITUTED A VIOLATION OF DUE PROCESS
            WHERE THE COMMONWEALTH FAILED TO PROVE TO A
            JURY BEYOND A REASONABLE DOUBT THE FACT(S) THAT
            SUPPORT THE MANDATORY MINIMUM SENTENCE?

(Appellant’s brief at 6).

       Appellant argues the court erred in imposing the mandatory minimum

sentence for PWID under Section 9712.1.                  Appellant contends that the

question of whether he possessed a firearm should have been submitted to a

jury and proved beyond a reasonable doubt, and that, because the

sentencing court found that he possessed a firearm only by a preponderance

of the evidence, the imposition of the mandatory minimum sentence based

on   this    factor   violated   the   Due     Process   Clause   of   the   Fourteenth

Amendment. We agree.

       Our standard of review regarding the imposition of a mandatory

sentence is as follows:

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6
  In lieu of filing a separate Rule 1925(a) opinion, the trial court submitted
its September 20, 2012 order and opinion denying Appellant’s post-sentence
motions.



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     Generally, a challenge to the application of a mandatory
     minimum sentence is a non-waiveable challenge to the legality
     of the sentence. Issues relating to the legality of a sentence are
     questions of law, as are claims raising a court's interpretation of
     a statute. Our standard of review over such questions is de
     novo and our scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super.2012).

     The sentencing code provides, in relevant part:

        § 7508. Drug trafficking sentencing and penalties

          (a)    General     rule.--Notwithstanding   any    other
          provisions of this or any other act to the contrary, the
          following provisions shall apply:

                                  *    *    *

              (3) 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 is coca leaves or is any salt, compound,
              derivative or preparation of coca leaves or is any salt,
              compound, derivative or preparation which is
              chemically equivalent or identical with any of these
              substances or is any mixture containing any of these
              substances except decocainized coca leaves or
              extracts of coca leaves which (extracts) do not
              contain cocaine or ecgonine 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; one year in prison and a fine of $5,000 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: three years in prison and
                $10,000 or such larger amount as is sufficient to


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               exhaust the assets utilized in and the proceeds
               from the illegal activity;

                                    *     *   *

          (b)    Proof of sentencing.--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. § 7508 (a)(3)(i). The Sentencing Code further provides:

        § 9712.1.   Sentences for certain drug offenses
        committed with firearms


        (a)       Mandatory sentence.–Any person who is
        convicted of violation of section [1]13(a)(30) of [] 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

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        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. § 9712.1.

     In Alleyne v. United States, __ U.S. __,133 S.Ct 2151, 2163, 186

L.Ed 2d 341 (2013), the Supreme Court of the United States held that the

Due Process Clause of the Federal Constitution requires each factor that

increases a mandatory minimum sentence to be submitted to a jury and

found beyond a reasonable doubt.            Id.   Based upon Alleyne, this Court

stated in dicta in Commonwealth v. Watley, that Sections 7508 and

9712.1 are unconstitutional insofar as they permit a judge to automatically

increase a defendant’s sentence based on a preponderance of the evidence

standard for factors other than a prior conviction.           Watley, 81 A.3d 108,

117 n. 4 (Pa.Super.2013) (en banc).

     More     recently,    in   Commonwealth        v.    Newman,       99   A.3d   86

(Pa.Super.2014) (en banc), following our dicta in Watley, we held that the

preponderance     of      the   evidence    standard     in   section   9712.1(c)   is

unconstitutional under Alleyne. We then addressed whether it was possible

to continue enforcing the remaining subsections of section 9712.1 after

severing subsection (c). We held that section 9712.1, as a whole, was no

longer workable, because subsection (c) was “essentially and inseparably

connected” with the mandatory minimum sentencing provision in subsection

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(a). Id., 99 A.3d at 101. We cited with approval several trial court opinions

on this subject, most notably the following analysis by the Montgomery

County Court of Common Pleas:

           While the Commonwealth clearly is correct that
           unconstitutional provisions of a statute may be severed in
           order to effectuate the legislature’s intent in enacting that
           statute, the undersigned believes that this simply is not
           possible in the instant situation, where the constitutional
           and unconstitutional provisions of the mandatory minimum
           statutes are inextricably interwoven. In order to effectuate
           the legislature’s intent for the imposition of mandatory
           minimum sentences, the Commonwealth would have us
           ignore the legislature’s clear intent: that the factors
           triggering such sentences be found by a judge and not a
           jury; that the defendant need not be informed of the
           applicability of the mandatory sentence prior to
           sentencing; and that the applicable standard be one of
           preponderance of the evidence. The undersigned believes
           it is for the legislature, and not this court, to make such
           determinations. Further, and crucially, rather than asking
           this court simply to ‘sever’ unconstitutional provisions
           within the statutes, the Commonwealth is essentially
           asking this court to rewrite them, by imposing different
           burdens of proof and notification than the legislature
           imposed.

Id.   at   103   (citing   Commonwealth      v.   Brockington,    et   al.   (CCP

Montgomery Cty., March 21, 2014)) (emphasis in original). Accordingly, we

vacated the defendant’s judgment of sentence and remanded for re-

imposition of sentence “without consideration of any mandatory minimum

sentence provided by section 9712.1.” Id. at 103.

      Based on Brockington and other Common Pleas Court opinions,

Newman suggested, in dicta, that 18 Pa.C.S. § 7508, as a whole, is no

longer workable in the wake of Alleyne.           Newman, supra, at 102-03.


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Newman did not, however, issue a definitive ruling on Section 7508,

because Section 7508 was not implicated in the Newman defendant’s

sentence.     Likewise, Section 7508 was not ultimately implicated in

Appellant’s sentence.

      In this case, utilizing the preponderance of the evidence standard, the

trial court found that Appellant was in possession of a firearm during the

commission of his PWID felony and sentenced him to the mandatory

minimum according to Section 9712.1.          Whether or not Appellant was in

possession of a firearm is a fact that alters the legally prescribed punishment

so as to aggravate it, and it was never submitted to a jury. Therefore, we

hold that the trial court must resentence Appellant without consideration of

any mandatory minimum sentence provided by section 9712.1.

      Judgment     of   sentence   vacated;     case   remanded   for   further

proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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