J-S33012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IRA L. FISHER, III,

                            Appellant                  No. 1747 MDA 2016


       Appeal from the Judgment of Sentence Entered October 28, 2015
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001672-2014


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED NOVEMBER 07, 2017

        Appellant, Ira L. Fisher, III, appeals nunc pro tunc from the judgment

of sentence imposed on October 28, 2015, after a jury convicted him of

aggravated indecent assault, statutory sexual assault, indecent assault, and

corruption of minors.          Appellant solely challenges the legality of two

mandatory minimum sentences imposed in his case pursuant to 42 Pa.C.S. §

9718.2. After careful review, we affirm.

        A detailed recitation of the facts of Appellant’s case is not necessary to

our disposition of his appeal. We only note that Appellant was convicted of

the above-stated charges based on “an anal rape that he perpetrated upon a



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*   Retired Senior Judge assigned to the Superior Court.
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fourteen-year-old girl who was in his care.”         Trial Court Opinion (TCO),

12/23/16, at 2. As the trial court explains,

        [t]wo of [Appellant’s] offenses – aggravated indecent assault
        and statutory sexual assault – are listed as Tier III sexual
        offenses under 42 Pa.C.S.[] § 9799.14. They are also included
        within the ambit of 42 Pa.C.S.[] § 9718.2, which governs
        mandatory sentences applicable to offenders who had previously
        been convicted of a Tier III sexual offense. See 42 Pa.C.S.[] §
        9718.2([a])(1).[1]

               On [October 28,] 2015, [Appellant] appeared before [the
        trial] [c]ourt for sentencing. Given the mandatory sentence
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1   Section 9718.2(a)(1) states:

        (a) Mandatory sentence.--

           (1) Any person who is convicted in any court of this
           Commonwealth of an offense set forth in section 9799.14
           (relating to sexual offenses and tier system) shall, if at the
           time of the commission of the current offense the person
           had previously been convicted of an offense set forth in
           section 9799.14 or an equivalent crime under the laws of
           this Commonwealth in effect at the time of the commission
           of that offense or an equivalent crime in another
           jurisdiction, be sentenced to a minimum sentence of at
           least 25 years of total confinement, notwithstanding any
           other provision of this title or other statute to the contrary.
           Upon such conviction, the court shall give the person oral
           and written notice of the penalties under paragraph (2) for
           a third conviction. Failure to provide such notice shall not
           render the offender ineligible to be sentenced under
           paragraph (2).

42 Pa.C.S. § 9718.2(a)(1). Here, Appellant had been previously convicted,
in 1996, of aggravated indecent assault and statutory sexual assault, both of
which are Tier III offenses under 42 Pa.C.S. § 9799.14. See Sentencing
Order, 11/2/15, at 1; 42 Pa.C.S. § 9799.14(d)(3), (d)(7).




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J-S33012-17


       required by 42 Pa.C.S.[] § 9718.2, [the court] imposed a
       sentence of 25 to 50 years[’ incarceration] on Counts I and [I]II.
       In addition, [the court] also imposed sentences on Counts IV and
       V of 16 months[’] to 5 years[’ incarceration].[2] No appeal was
       immediately filed by [Appellant].

TCO at 2.

       Appellant subsequently filed a petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his direct

appeal rights.      The court granted that petition, and Appellant filed the

present notice of appeal nunc pro tunc.              He timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant raises

the following single issue for our review:

       A. Did the trial court err in sentencing Appellant when they
          sentenced him to a mandatory minimum sentence of twenty-
          five (25) to fifty (50) years for counts I and III of the criminal
          information when they were not legally permitted to do so?

Appellant’s Brief at 6.

       Appellant contends that his mandatory minimum sentences, imposed

pursuant to 42 Pa.C.S. § 9718.2, are illegal under Alleyne v. United

States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt).          We disagree.       The application of mandatory

sentences     under    section    9718.2       was   triggered   by   Appellant's   prior
____________________________________________


2 Appellant’s sentences at counts I and III were imposed to run concurrently,
while his sentences at counts IV and V were imposed to run consecutively.
Thus, his aggregate sentence is 27 years’ and 8 months’ to 60 years’
incarceration.



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convictions for offenses set forth in section 9799.14. See 42 Pa.C.S. §

9718.2(a)(1).

     Prior convictions are the remaining exception to Apprendi v.
     New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
     (2000), and Alleyne..., insofar as a factfinder is not required to
     determine disputed convictions beyond a reasonable doubt to
     comport with the Sixth Amendment jury trial right. See
     Almendarez–Torres v. United States, 523 U.S. 224, 118
     S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014). Thus,

because Appellant’s mandatory minimum sentences under section 9718.2

are premised on his prior convictions, Alleyne does not render those

sentences unconstitutional. Accordingly, we affirm Appellant’s judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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