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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ALEXANDER DIAZ,                        :          No. 2505 EDA 2014
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, April 25, 2012,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0000992-2011


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 16, 2017

     Alexander Diaz appeals from the judgment of sentence of April 25,

2012, following reinstatement of his direct appeal rights nunc pro tunc.

We vacate the judgment of sentence and remand for resentencing.

     The trial court summarized the history of this case as follows:

                 Appellant/Defendant was tried and convicted
           for possession with intent to deliver [(“PWID”)]
           heroin and related crimes, after the undercover
           purchase of heroin on September 23, 2010 in
           Chester, Delaware County, Commonwealth of
           Pennsylvania.[Footnote 1]

                 [Footnote 1] Two prior undercover heroin
                 purchases occurred on September 17,
                 2010 and September 21, 2010 involving
                 the defendant’s co-defendant, Alexander
                 Santo.

                Appellant, Alexander Diaz, appeals from the
           judgment of sentence imposed on April 25, 2012,
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          following his conviction for [PWID], Conspiracy to
          delivery   []   of   heroin   and   possession  of
          paraphernalia.[Footnote 2]

               [Footnote 2] On December 8, 2011 the
               defendant was found guilty after a Jury
               Trial on the merits.        Sentencing
               proceeded thereafter on April 25, 2012
               together with a Post-Sentence Rights
               colloquy. A counseled Motion to Modify
               and    Reduce    Sentence   was    filed
               thereafter on May 7, 2012 which was
               denied by order of court dated June 1,
               2012.    No direct appeal was filed or
               preserved.

                     On September 26, 2012 a Pro Se
               PCRA Petition was filed averring,
               inter alia, ineffectiveness for failure to
               file or preserve the defendant’s direct
               appeal rights.

                      After appointment of collateral
               counsel the defendant was granted leave
               and     continuances    to   file  multiple
               amendments        to   defendant’s   PCRA
               Petition.    There appearing [to be] no
               dispute the Defendant’s rights on direct
               appeal were not properly protected by
               trial counsel and thus extinguished, this
               court on July 28, 2014 granted the nunc
               pro      tunc    reinstatement    of    the
               Defendant’s right to direct appeal.

                      The Office of the Delaware County
               Public Defender[,] consistent with such
               time constraints [as] this court directed
               via its July 28, 2014[] order reinstating
               nunc pro tunc direct appellate rights[,]
               lodged on August 29, 2014[] an appeal
               notice from the Defendant’s sentencing
               judgment.




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                  On Appeal, Appellant challenges his convictions
            for lack of sufficient evidence. Appellant/Defendant
            also attacks his sentence contending the Trial Court
            impermissibly and unconstitutionally imposed a
            mandatory minimum sentence in violation of
            Alleyne v. United States, 133 S.Ct. 2151, 186
            L.Ed.2d 314 (2013).

                   Appellant proceeded to a two-day jury trial on
            December 7-8, 2010. Appellant was found guilty of
            the aforementioned charges.       Subsequently, on
            April 25, 2012, with the benefit of a presentence
            investigation and report, this Court imposed the
            following sentence. On the PWID heroin conviction,
            this Court imposed a sentence of 48 months to
            96 months imprisonment with a 10 year consecutive
            probation for the criminal conspiracy conviction and
            an additional 1 year probation consecutive to the
            conspiracy conviction for the possession of
            paraphernalia conviction.     (Sentencing, 4/25/12,
            pp. 54-62).

Trial court opinion, 6/28/16 at 1-2 (emphasis added and deleted).

      On January 9, 2015, the trial court ordered appellant to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b), and appellant timely complied on January 28, 2015. On

June 28, 2016, the trial court filed a Rule 1925(a) opinion.1

      Appellant has raised the following issue for this court’s review:

                  Whether the mandatory minimum sentence
                  imposed in this matter on the charge of
                  [PWID] is illegal and must be vacated since the
                  statutory provisions utilized have been ruled
                  unconstitutional[?]


1
 The reasons for the nearly two-year delay between when appellant filed his
notice of appeal on August 29, 2014, and receipt of the record in this court
on July 1, 2016, are unclear.


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Appellant’s brief at 7 (capitalization deleted).2

      Here, appellant was subject to a mandatory minimum sentence of

2-4 years’ imprisonment for PWID under 18 Pa.C.S.A. § 6317 (drug-free

school zones). (Trial court opinion, 6/28/16 at 5.) In Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court concluded that the

United States Supreme Court’s decision in Alleyne rendered Section 6317

unconstitutional in its entirety.   See also Commonwealth v. Wolfe, 140

A.3d 651, 653 (Pa. 2016) (“The effect of Alleyne’s new rule was to

invalidate   a   range   of   Pennsylvania    sentencing    statutes   predicating

mandatory minimum penalties upon non-elemental facts and requiring such

facts to be determined by a preponderance of the evidence at sentencing.”).

      The Commonwealth argues that the trial court imposed a sentence of

4-8 years, twice the mandatory minimum.             (Commonwealth’s brief at 6.)

Therefore, according to the Commonwealth, the 2-year mandatory did not

affect appellant’s sentence. (Id. at 7.) However, the trial court specifically

determined that Section 6317 applied.        (Appellant’s brief at 14; trial court

opinion, 6/28/16 at 5.)       See Commonwealth v. Barnes,               A.3d     ,

2016 WL 7449232 at *5 (Pa. 2016) (rejecting the Commonwealth’s

argument that the sentencing court was not without authority to enter the

appellant’s sentence because it possessed separate discretionary authority



2
  Appellant’s sufficiency of the evidence claim has been abandoned on
appeal.


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under which he could have received the same sentence).       We vacate

appellant’s judgment of sentence and remand to the trial court for

resentencing without application of 18 Pa.C.S.A. § 6317.

      Judgment of sentence vacated.         Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2017




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