J-S58015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CEDRIC LAMONT DANIELS,

                            Appellant                 No. 192 MDA 2016


             Appeal from the Judgment of Sentence June 17, 2014
             in the Court of Common Pleas of Cumberland County
              Criminal Division at Nos.: CP-21-CR-0001420-2013
                           CP-21-CR-0001430-2013


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 22, 2016

        Appellant, Cedric Lamont Daniels, appeals from the judgment of

sentence imposed June 17, 2014,1 following a jury conviction of four counts

of possession with intent to deliver (PWID) and one count of criminal

conspiracy.2     He contends that he was sentenced to an unconstitutional

mandatory minimum sentence imposed under 18 Pa.C.S.A. § 7508(a)(7).

The Commonwealth concedes that this matter should be remanded for

resentencing because the sentence imposed was based on a sentencing

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The dockets in this matter reflect that Appellant’s sentences were imposed
on June 17, 2014. We have amended the caption accordingly.
2
    See 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(c), respectively.
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guideline form, which was part of the presentence investigation report (PSI),

and which reflected an unconstitutional mandatory minimum. We vacate the

judgment of sentence and remand for resentencing.

        We take the factual and procedural history in this matter from our

review of the certified record. On May 14, 2014, a jury convicted Appellant

of three counts of PWID and one count of criminal conspiracy to commit

PWID at Docket No. 1420-2013, and one count of PWID at Docket No. 1430-

2013.    The jury also determined that the amount of heroin that Appellant

possessed with the intent to deliver was one gram or greater.       (See N.T.

Trial, 5/12/14, at 314, 328-29).

        On June 17, 2014, the court conducted a sentencing hearing. At the

beginning of the hearing, Appellant’s counsel explained that he had an

opportunity to review the PSI and found that it was accurate.       (See N.T.

Sentencing, 6/17/14, at 2).         The PSI noted that the Commonwealth filed

mandatory notices for Counts 1, 2, and 3; and listed the sentencing

guidelines for Count 3 as “Mitigated: 36 Standard: 36-36 Aggravated: 36”.

(PSI, 6/13/14, at unnumbered page 2). Attached to the PSI were guideline

sentence forms, which indicated that there was a mandatory minimum

sentence of thirty-six months on Count 3.3 (See id. at unnumbered page


____________________________________________


3
  At times Count 3 at Docket No. 1420 is listed as Count 1C. (See, e.g.,
PSI, at unnumbered page 11). We have referred to it as Count 3 throughout
this memorandum.



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11). Prior to the court imposing sentence, the Commonwealth argued that

Appellant “was convicted of being a heroin dealer. There are mandatories.

And Count 3 at 1420, the standard range is three years.” (N.T. Sentencing,

at 3-4).

       The court sentenced Appellant, at Docket No. 1420, to a term of not

less than twenty-seven months nor more than five years’ incarceration, and

a fine of $500.00 for Count 1, PWID; not less than twenty months nor more

than five years of incarceration for Count 2, PWID, to run concurrent to

Count 1; not less than three nor more than six years’ incarceration for Count

3, PWID, to run concurrent to Counts 1 and 2; and not less than two nor

more than five years’ incarceration, and a fine of $500.00 for Count 4,

criminal conspiracy.   (See N.T. Sentencing, at 4-5).        The trial court

sentenced Appellant, at Docket No. 1430, to a sentence of not less than

twenty-seven months nor more than five years of incarceration and imposed

a $500.00 fine.   (See id. at 4).   The sentence at Docket No. 1420 was

consecutive to the one imposed at Docket No. 1430. (See id. at 5). After

imposing sentence, the court explained: “These are the standard range or

mandatory minimum sentences in this case.” (Id. at 5).

      On June 22, 2014, Appellant timely filed a pro se notice of appeal,

which the court docketed on June 25, 2014, and forwarded to Appellant’s




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trial counsel.4     On November 10, 2015, the court appointed counsel to

represent Appellant on his direct appeal, and directed him to file a counseled

concise statement of errors complained of on appeal.           See Pa.R.A.P.

1925(b).     Appellant filed a timely statement of errors on December 15,

2015.    See id.     The court entered its opinion on January 12, 2016.   See

Pa.R.A.P. 1925(a).


____________________________________________


4
  Appellant’s initial notice of appeal created a procedural quagmire, which a
prior panel of this Court summarized as follows:

        [O]n June 20, 2014, the court docketed Appellant’s pro se PCRA
        petition. Although trial counsel had not withdrawn, the court
        appointed PCRA counsel for Appellant on June 25, 2014—the
        same day the court docketed Appellant’s notice of appeal. On
        September 22, 2014, PCRA counsel filed a Turner/Finley
        petition to withdraw. On September 24, 2014, the court issued
        a Pa.R.Crim.P. 907 notice and also granted PCRA counsel’s
        petition to withdraw. On October 23, 2014, the PCRA court
        dismissed Appellant’s PCRA petition. Four days later, the court
        docketed Appellant’s pro se response to the Rule 907 notice. On
        November 10, 2014, the PCRA court, after reviewing Appellant’s
        response, again dismissed his PCRA petition; the order was also
        mailed the same day.

              That same day, November 10, 2014, Appellant filed a
        second, pro se notice of appeal. The notice of appeal did not
        state [whether] Appellant was appealing from the October 23rd
        or November 10th orders. Appellant timely filed a court-ordered
        Pa.R.A.P. 1925(b) statement.

(Commonwealth v. Daniels, 1969 MDA 2014, unpublished memorandum
at *2-3 (Pa. Super. filed Aug. 5, 2015) (footnotes omitted)). Because
Appellant’s direct appeal was still pending, this Court found that the trial
court lacked jurisdiction to act on Appellant’s PCRA petition and quashed the
appeal. (See id. at *1).



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       Appellant raises one question on appeal.

       (1) Did the [trial] court err in applying the mandatory minimum
       sentencing statute of 18 Pa.C.S.[A.] § 7508 in violation of
       Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014)[,
       appeal denied, 121 A.3d 494 (Pa. 2015)]?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

       Appellant claims that the trial court’s sentence of not less than three

nor more than six years on Count 3 was a mandatory minimum sentence

pursuant to section 7508, which this Court concluded was unconstitutional in

Fennell, supra.      (See Appellant’s Brief, at 6-8).     The Commonwealth

argues that, technically, the court did not sentence Appellant to a mandatory

minimum, but alleges that the court erred when it relied on a PSI that

contained guidelines based on a mandatory minimum sentence.                 (See

Commonwealth’s Brief, at 3). The trial court maintains that Appellant was

not sentenced to a mandatory minimum sentence, and that the three years

imposed on Count 3 was the standard range sentence as indicated in the

PSI.   (See Trial Court Opinion, 1/12/16, at 15) (explaining sentence for

Count 3 “was a standard range sentence according to the guidelines filed in

the clerk’s office, and not a mandatory minimum sentence.”) (footnote

omitted). Upon review, we are constrained to agree with Appellant that the

sentence imposed was an unconstitutional mandatory minimum.

       Our standard of review is well-settled.

       A challenge to the legality of a sentence . . . may be entertained
       as long as the reviewing court has jurisdiction. It is also well-
       established that [i]f no statutory authorization exists for a
       particular sentence, that sentence is illegal and subject to

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     correction. An illegal sentence must be vacated. 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.

Fennell, supra at 15 (citations and quotation marks omitted).

     Here, Appellant alleges that the court imposed a mandatory minimum

sentence pursuant to section 7508, which provides, inter alia:

     (7) 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 heroin shall, upon conviction, be sentenced as set
     forth in this paragraph:

        (i)    when the aggregate weight of the compound or
        mixture containing the heroin involved is at least 1.0 gram
        but less than 5.0 grams the sentence shall be a mandatory
        minimum term of two years 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: a
        mandatory minimum term of 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[.]

18 Pa.C.S.A. § 7508(a)(7)(i).

     In Fennell, supra, this Court considered whether the appellant’s

sentence imposed under section 7508(a) was constitutional under Alleyne

v. United States, 133 S.Ct. 2151 (2013), given that the appellant

stipulated to the weight of the drugs for the purpose of the mandatory

minimum. See Fennell, supra at 20. The Court reasoned that any method

to impose a mandatory minimum sentence outside the statutory framework

was inconsistent with Alleyne. See id. Therefore, the Court held that the

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appellant was entitled to relief because his mandatory minimum sentence

imposed under section 7508 was unconstitutional. See id.

      In Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015), this

Court considered whether the trial court’s imposition of a mandatory

minimum sentence pursuant to section 7508 was constitutional where,

rather than a stipulation to the amount of drugs, the jury, as factfinder,

determined the weight of the drugs.         See Mosley, supra at 1090.        It

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.

      Similarly, in the instant matter, the court created a verdict slip wherein

the jury determined that the amount of heroin possessed for Count 3 was

greater than one gram.      (See N.T. Trial, 5/12/14, at 314, 328-29).      The

Commonwealth gave notice that it was seeking the mandatory minimum for

that count.   (See PSI, at unnumbered page 2).       The PSI prepared by the

probation office and provided to the trial court included a guideline sentence

form that stated that Count 3 had a mandatory minimum sentence of thirty-

six months.    (See id.).       The sentencing recommendation for Count 3

included sentencing guidelines which read: “Mitigated: 36 Standard: 36-36

Aggravated: 36[.]”     (Id.).    Thus, it appears that the probation officer

considered the thirty-six month mandatory minimum when preparing the

guideline amounts for the PSI.




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      Thereafter, at sentencing, the Commonwealth argued:         “There are

mandatories.    And Count 3 at 1420, the standard range is three years.”

(N.T. Sentencing, at 3-4). The court then imposed a period of incarceration

for Count 3 of “not less than three years or more than six years.” (Id. at 5).

After imposing sentence the court explained: “These are all standard range

or mandatory minimum sentences in this case.” (Id.).

      Thus, upon review, we are constrained to conclude that the trial court

sentenced Appellant on Count 3 to an unconstitutional three-year mandatory

minimum sentence imposed under section 7508.         See Mosley, supra at

1091; Fennell, supra at 15, 20. Accordingly, we must vacate the judgment

of sentence and remand for resentencing.

      Judgment of sentence vacated.       Case remanded for re-sentencing.

Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




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