J-S79035-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                Appellee                :
                                        :
                    v.                  :
                                        :
ANGEL MONTES,                           :
                                        :
                Appellant               :   No. 1265 EDA 2014

      Appeal from the Judgment of Sentence Entered March 25, 2014,
            in the Court of Common Pleas of Delaware County,
               Criminal Division, at No(s): CP-23-CR-0004185

BEFORE:     ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 10, 2015

      Angel Montes (Appellant) appeals from the judgment of sentence

entered March 25, 2014 following his conviction for various drug offenses.

We vacate Appellant’s judgment of sentence and remand for resentencing.

      On March 1, 2010, Appellant pled guilty and was sentenced to two to

four years of incarceration for possession of a controlled substance with

intent to deliver at CP-23-CR-0006909-2009. Appellant was paroled in June

of 2012.    On May 27, 2013, Appellant failed to appear at a scheduled

appointment with his parole agent, Arthur Rothwell.     On June 12, 2013,

Agent Rothwell went to Appellant’s home on Wanamaker Avenue in

Essington, Pennsylvania, and left a note advising him to come to Rothwell’s

office the following day.




*Retired Senior Judge assigned to the Superior Court.
J-S79035-14


      On June 13, 2013, Appellant appeared at Agent Rothwell’s office with

his young son. When asked to submit a urine sample, Appellant informed

Agent Rothwell that he would likely test “hot,” or positive, for marijuana. In

response, Agent Rothwell informed his supervisor of Appellant’s statement,

as well as the charges for which he was on parole. After arrangements were

made for Appellant’s child, a search of his person was conducted.          This

search did not reveal any contraband. Agent Rothwell, his supervisor, and

two other parole agents then conducted a search of Appellant’s home and

vehicle.

      During the search of Appellant’s bedroom, Agent Rothwell discovered

in the top dresser drawer a box containing $610, underneath of which was a

digital scale. Another drawer contained a bag of suspected marijuana.

Additionally, a child’s book bag in the bedroom was found to contain

suspected cocaine, both loose and packaged for sale, as well as other drug

paraphernalia. Subsequently, Appellant was arrested and charged with

multiple offenses stemming from the search of his home.

      On September 24, 2013, Appellant filed a motion to suppress physical

evidence.   A hearing was held on October 17, 2013, and on November 7,

2013, the trial court denied Appellant’s motion.      On February 26, 2014,

following a jury trial, Appellant was found guilty of possession of a controlled




                                     -2-
J-S79035-14


substance with intent to deliver (cocaine), possession of a small amount of

marijuana, and possession of drug paraphernalia.

     On March 25, 2014, Appellant was sentenced to an aggregate term of

five to ten years’ incarceration.   This timely appeal followed.    Appellant

complied with the trial court’s request to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

     Appellant raises two issues on appeal. Appellant’s Brief at 5. First, he

contends that Agent Rothwell lacked the reasonable suspicion necessary to

conduct a warrantless search of his vehicle and residence. Id. at 15-17. He

also argues, pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013),

that the mandatory minimum sentence imposed in this matter is illegal and

must be vacated. Id.1

     We address Appellant’s first issue mindful of the following.

     Our analysis of this question begins with the presumption that
     where a motion to suppress has been filed, the burden is on the
     Commonwealth to establish by a preponderance of the evidence
     that the challenged evidence is admissible. If the trial court
     denies the motion, we must determine whether the record
     supports the trial court’s factual findings and whether the legal
     conclusions drawn therefrom are free from error. In so doing,
     we may consider only the evidence of the prosecution and so

1
   This claim is not contained in Appellant’s 1925(b) statement. However, we
address it “despite the appellant’s failure to preserve the issue below,
because a challenge to a sentence premised upon Alleyne... implicates the
legality of the sentence and, thus, it cannot be waived on appeal.”
Commonwealth v. Vargas, __ A.3d __, 2014 WL 7447678 (Pa. Super.
filed December 31, 2014) (en banc).




                                    -3-
J-S79035-14


      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the
      record supports the findings of the suppression court, we are
      bound by those facts and may reverse only if the court erred in
      reaching its legal conclusions based upon the facts.

Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012) (en

banc) (citations and quotations omitted).

      As noted above, at the time of the search of Appellant’s vehicle and

residence, he was serving a parole sentence.          Searches of parolees

suspected of possessing contraband are governed by 61 Pa.C.S. § 6153,

which provides, in relevant part:

      (b) Searches and seizures authorized.--

            (1) Agents may search the person and property of
            offenders in accordance with the provisions of this
            section.

            (2) Nothing in this section shall be construed to
            permit searches or seizures in violation of the
            Constitution of the United States or section 8 of
            Article I of the Constitution of Pennsylvania.

                                      ***

      (d) Grounds for personal search of offender.--

            (1) A personal search of an offender may be
            conducted by an agent:

                  (i) if there is a reasonable suspicion to
                  believe that the offender possesses
                  contraband     or    other   evidence  of
                  violations    of    the    conditions  of
                  supervision;




                                    -4-
J-S79035-14


                                      ***

            (2) A property search may be conducted by an agent
            if there is reasonable suspicion to believe that the
            real or other property in the possession of or under
            the control of the offender contains contraband or
            other evidence of violations of the conditions of
            supervision.

Id.

      Appellant argues that the search of his vehicle and home violated his

constitutional rights because (1) without inquiring further into Appellant’s

statement that his urine sample would be “hot,” Agent Rothwell did not have

reasonable suspicion to support a search of Appellant’s vehicle or residence,

and (2) the search was not reasonably related to the suspected narcotics

violation (i.e., use of marijuana). Appellant’s Brief at 16.

      As noted above, a property search may be conducted by a parole

agent “if there is reasonable suspicion to believe that the real or other

property in the possession of or under the control of the offender contains

contraband or other evidence of violations of the conditions of

supervision.” 61 Pa.C.S. § 6153(d)(2) (emphasis added).          The statute

further provides that

            (6) The existence of reasonable suspicion to search
            shall be determined in accordance with constitutional
            search and seizure provisions as applied by judicial
            decision. In accordance with such case law, the
            following factors, where applicable, may be taken
            into account:




                                      -5-
J-S79035-14


                 (i) The observations of agents.

                 (ii) Information provided by others.

                 (iii) The activities of the offender.

                 (iv)  Information      provided     by   the
                 offender.

                 (v) The experience of agents with the
                 offender.

                 (vi) The experience of agents in similar
                 circumstances.

                 (vii) The prior criminal and supervisory
                 history of the offender.

                 (viii) The need to verify compliance with
                 the conditions of supervision.

61 Pa.C.S. § 6153(d)(6).

     As this Court has stated:

     [b]ecause the very assumption of the institution of parole is that
     the parolee is more likely than the ordinary citizen to violate the
     law, the agents need not have probable cause to search a
     parolee or his property; instead, reasonable suspicion is
     sufficient to authorize a search. Essentially, parolees agree to
     endure warrantless searches based only on reasonable suspicion
     in exchange for their early release from prison.

     The search of a parolee is only reasonable, even where the
     parolee has signed a waiver ..., where the totality of the
     circumstances demonstrate that (1) the parole officer had
     reasonable suspicion to believe that the parolee committed a
     parole violation; and (2) the search was reasonably related to
     the duty of the parole officer. The determination of whether
     reasonable suspicion exists is to be considered in light of the
     totality of the circumstances.




                                     -6-
J-S79035-14


Commonwealth v. Colon, 31 A.3d 309, 315 (Pa. Super. 2011) (citations

omitted).

      The record reveals the following facts. Appellant failed to appear for a

scheduled parole meeting.      Agent Rothwell testified that he suspected

Appellant may have missed this appointment due to “possible use of illegal

substances, which is why [he] wanted to get a urine [sample] from

[Appellant.]” N.T., 10/17/2013, at 30.      When Appellant came to Agent

Rothwell’s office on June 13, 2013, he brought his young son.            Agent

Rothwell testified that it is was not unusual for parolees to bring children

with them to appointments as a way to avoid arrest. Id. at 31. Appellant

then confirmed to Agent Rothwell that his urine sample would likely test

positive for marijuana.   Agent Rothwell, knowing that Appellant’s parole-

approved residence on Wanamaker Avenue was also the location of his

underlying narcotics trafficking conviction, requested permission from his

supervisor to search Appellant’s vehicle and residence for narcotics and

related paraphernalia.

      Based on the totality of the circumstances, including a consideration of

the factors set forth in 61 Pa.C.S. § 6153(d)(6), we agree with the trial court

that Agent Rothwell had reasonable suspicion to believe that Appellant had

violated his parole and that Appellant’s vehicle and residence contained

contraband. Therefore, he was permitted to search those locations.




                                     -7-
J-S79035-14


Commonwealth v. Koehler, 914 A.2d 427 (Pa. Super. 2006) (holding

warrantless search of parolee’s residence permitted where parole agent had

reasonable suspicion to suspect residence contained evidence of a crime or

violation of condition of parole). Accordingly, we hold that the trial court did

not err in denying Appellant’s motion to suppress.

      Appellant next challenges the legality of his sentence, arguing that the

trial court unlawfully imposed a mandatory minimum sentence pursuant to

18 Pa.C.S. § 7508, which provides, in relevant part:

         (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:

            (ii) when the aggregate weight of the compound or
            mixture containing the substance involved is at least
            ten grams and less than 100 grams; three years in
            prison and a fine of $15,000 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: five
            years in prison and $30,000 or such larger amount
            as is sufficient to exhaust the assets utilized in and
            the proceeds from the illegal activity[.]

                                 ***



                                       -8-
J-S79035-14


      (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)(ii), (b).

      The United States Supreme Court, in Alleyne, held that any facts

leading to an increase in a mandatory minimum sentence are elements of

the crime and must be presented to a jury and proven beyond a reasonable

doubt.

      According to the Alleyne Court, a fact that increases the
      sentencing floor is an element of the crime. Thus, it ruled that
      facts that mandatorily increase the range of penalties for a
      defendant must be submitted to a fact-finder and proven beyond
      a reasonable doubt. The Alleyne decision, therefore, renders
      those Pennsylvania mandatory minimum sentencing statutes
      that do not pertain to prior convictions constitutionally infirm
      insofar as they permit a judge to automatically increase a
      defendant’s sentence based on a preponderance of the evidence
      standard.
Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc)

(footnote omitted).

      This Court’s recent decisions in Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v. Valentine,

101 A.3d 801, (Pa. Super. 2014) are instructive.




                                     -9-
J-S79035-14


      In Newman, we reviewed the constitutionality of 42 Pa.C.S.A.
      § 9712.1, which enhances the minimum sentence where a
      firearm is found on a drug dealer, an accomplice, or in the
      vicinity of the contraband. …

                                    [***]

      We explained in Newman that under Alleyne, the factual
      predicates for imposition of the § 9712.1 mandatory minimum
      sentence (i.e., that the firearm was found on a drug dealer, an
      accomplice or in the vicinity of the contraband) “must be pleaded
      in the indictment, and must be found by the jury beyond a
      reasonable doubt before the defendant may be subjected to an
      increase in the minimum sentence.” Concluding that the factual
      predicates for imposition of the mandatory minimum sentence
      had not been presented to a jury, we vacated the judgment of
      sentence.

Valentine, 101 A.3d at 810 (2014) (citations omitted) (quoting Newman,

99 A.3d at 98, 101-02). Thus, in Newman, this Court remanded for

resentencing without consideration of the mandatory minimum sentences

provided in Section 9712.1. Newman, 99 A.3d at 103. Applying Newman,

the Court in Valentine vacated the judgment of sentence and remanded for

resentencing without consideration of the mandatory minimum sentences at

42 Pa.C.S. §§ 9712 and 9713. Valentine, 101 A.3d at 812 & n.4.

      More recently, in Commonwealth v. Fennell, --- A.3d ---, 2014 WL

6505791 (Pa. Super. 2014), this Court, applying the rationale of Valentine

and Newman, determined that, notwithstanding the fact triggering the

imposition of a mandatory sentence under section 7508 was stipulated to at

trial, the statute was facially unconstitutional. We are bound by this holding.




                                    - 10 -
J-S79035-14


Thus, based on the foregoing, we vacate Appellant’s sentence and remand

for resentencing without consideration of the mandatory minimum sentences

provided in section 7508.

      Convictions affirmed. Judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/10/2015




                                 - 11 -
