J-S63027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ANDRE LAMONT SPANGLER

                            Appellant                      No. 277 MDA 2014


             Appeal from the Judgment of Sentence March 15, 2011
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0002280-2009


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                  FILED APRIL 29, 2015

        Appellant, Andre Lamont Spangler, appeals from the judgment of

sentence entered March 15, 2011.               After careful review, we vacate the

judgment of sentence and remand for resentencing.

        Spangler pled guilty to various drug related offenses based upon

allegations of multiple sales of cocaine.         The trial court initially sentenced

Spangler to a term of incarceration of 10 to 20 years.             After considering

Spangler’s post-sentence motions, however, the trial court resentenced

Spangler to an aggregate term of imprisonment of 7 to 14 years.

        Spangler subsequently filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), through which his direct appeal rights were reinstated
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S63027-14


nunc pro tunc by PCRA court order dated January 10, 2014.            This timely

appeal followed.

      On appeal, Spangler raises the following issues for our review:

      1. Should Mr. Spangler be resentenced due to sentencing
         entrapment and/or sentencing manipulation?
            a. Did law enforcement engage in sentencing entrapment
               and/or sentencing manipulation in the course of its
               investigation?
            b. Is Appellant entitled to a new sentence due to
               sentencing        entrapment      and/or      sentencing
               manipulation?
      2. Is 18 Pa.C.S.A. § 7508 unconstitutionally vague?
      3. Does 18 Pa.C.S.A. § 7508 violate the equal protection
         clauses?
      4. Is 18 Pa.C.S.A. § 7508 unconstitutional as applied in this case
         since it constitutes cruel and unusual punishment?

Appellant’s Brief, at 7.

      We need not address any of the issues raised by Spangler as the

parties now recognize that while the instant appeal was pending this Court,

sitting en banc, held that section 7508 is facially invalid pursuant to the

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

___   U.S.   ___,   133    S.Ct.   2151,   186   L.Ed.2d   314   (2013).    See

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).

Furthermore, this issue cannot be waived.            See Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (holding that

violations of Alleyne could not be waived).       The Commonwealth concedes

that Spangler is entitled to re-sentencing. We therefore vacate Spangler’s




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J-S63027-14


judgment of sentence and remand for re-sentencing pursuant to the dictates

of Newman and Alleyne.

     Judgment of sentence vacated. Case remanded for re-sentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2015




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