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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
ISRAEL RODRIGUEZ,                           :
                                            :
                            Appellant       :     No. 691 EDA 2014


          Appeal from the Judgment of Sentence September 30, 2013
             In the Court of Common Pleas of Montgomery County
               Criminal Division No(s).: CP-46-CR-0001615-2012

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 09, 2015

        Appellant, Israel Rodriguez, appeals from the judgment of sentence

entered in the Court of Common Pleas of Montgomery County after pleading

guilty to ten counts of Possession with Intent to Deliver (“PWID”) cocaine 1

and one count each of Corrupt Organizations,2 Criminal Conspiracy,3 and

Criminal Use of Communication Facility.4 Appellant argues his sentences on



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 911(b)(4).
3
    18 Pa.C.S. § 903(a)(1).
4
    18 Pa.C.S. § 7512(a).
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the PWID counts are illegal under Alleyne,5 the court erred in denying

eligibility for the Recidivism Risk Reduction Incentive program, and his

sentence was excessive. The Commonwealth agrees Appellant’s sentences

on the PWID counts are illegal.6 Commonwealth’s Brief, 1/5/15, at 4. We

vacate the judgment of sentence and remand for resentencing.

        The trial court summarized the facts, as relevant, as follows:

              On December 21, 2011, Appellant was arrested for his
           role in a multi-county drug trafficking operation. . . .

              On February 5, 2013, Appellant entered into an open
           guilty plea before this Court . . . . In exchange for his
           guilty pleas to these thirteen counts, the Commonwealth
           nol[le] prossed the remaining counts. . . .

              At the hearing, there was an oral guilty plea colloquy as
           well as a written guilty plea colloquy that was reviewed
           and signed by Appellant. [N.T., Open Guilty Plea, 2/5/13,
           4-21; Ex. D-1, Guilty Plea Colloquy].

Trial Ct. Op., 4/4/14, at 1-2.

        On September 30, 2013, the trial court held a sentencing hearing.

The court found that Appellant possessed more than 100 grams of cocaine

on each PWID count, and it applied the mandatory minimum sentencing

provisions of 18 Pa.C.S. § 7508.      N.T., Sentencing Hr’g, 9/30/13, at 8-9.

The court sentenced Appellant to an aggregate sixteen to forty years’



5
    Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).
6
  The Commonwealth preserved an objection that our case law applying
Alleyne should be overruled. Commonwealth’s Brief at 4-5.




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imprisonment for the ten PWID counts,7 and ordered him to serve

probationary terms on the counts of Corrupt Organizations, Criminal

Conspiracy, and Criminal Use of Communication Facility. Id. at 70-72.

     Appellant filed a timely post-sentence motion on October 9, 2013,

seeking to withdraw his plea.    Trial Ct. Op. at 4.   Appellant then filed a

premature notice of appeal on October 29, 2013, and a court-ordered

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal on

November 19, 2013.     Id. at 4 n.3.   This Court quashed this interlocutory

appeal on February 24, 2014, pending the resolution of Appellant’s post-

sentence motion.    Id.   The trial court denied Appellant’s post-sentence

motion on February 4, 2014, and Appellant timely filed a notice of appeal on

February 28, 2014.     Id. at 4.    On March 4, 2014, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement, but he did not respond.8

     Generally, “issues not raised in a Rule 1925(b) statement will be

deemed waived.”     Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.

Super. 2009).      However, “[c]hallenges to a court’s application of a

mandatory sentencing provision implicate the legality of the sentence,” and



7
  Specifically, the trial court sentenced Appellant to four to ten years’
imprisonment on each PWID count but ordered four of those sentences to
run consecutively and the remaining six to run concurrently.
8
  The trial court, on April 4, 2014, authored a Pa.R.A.P. 1925(a) opinion
responding to Appellant’s previous Rule 1925(b) statement.




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cannot be waived.      Id. at 241.     Therefore, we will address Appellant’s

challenge to the legality of the sentences on the PWID charges.

      Our standard of review is well established:

         If no statutory authority exists for a particular sentence,
         that sentence is illegal and subject to correction. An illegal
         sentence must be vacated. Issues related 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. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and punctuation omitted).

      This Court has held that the mandatory sentencing provisions in

Section 7508(a) and (b) are facially unconstitutional under Alleyne. Id. at

754 (applying, inter alia, Commonwealth v. Newman, 99 A.3d 86, 91 (Pa.

Super. 2014) (en banc)). Moreover, the unconstitutional provisions are not

severable.9 Id. We therefore agree with the parties that the sentences on

Appellant’s PWID convictions cannot stand, vacate the sentences, and

remand for resentencing.10

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.

9
  We note that Appellant’s plea in this matter did not involve specific
admissions to weights of cocaine over 100 grams. Therefore, the trial court
was required to engage in unconstitutional findings of fact when applying
Section 7508.
10
   Appellant’s remaining claims were not properly preserved and, in any
event, are moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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