J-S25004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ADRIAN JONES,

                            Appellant                    No. 332 WDA 2014


      Appeal from the Judgment of Sentence Entered September 26, 2013
               In the Court of Common Pleas of Allegheny County
                           Criminal Division at No(s):
                            CP-02-CR-0002592-2013
                            CP-02-CR-0004826-2013
                            CP-02-CR-0007435-2012


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*


MEMORANDUM BY BENDER, P.J.E.:                             FILED JUNE 09, 2015

        Appellant, Adrian Jones, appeals from the judgment of sentence of an

aggregate term of 5 to 10 years’ incarceration, imposed after he pled guilty

in three different cases to various offenses, including three counts of

possession with intent to deliver heroin (PWID) and two counts of carrying a

firearm without a license. On appeal, Appellant challenges the legality of his

sentence. His counsel has also filed with this Court a petition to withdraw

pursuant     to   Anders      v.    California,   386   U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   After careful
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*
    Retired Senior Judge assigned to the Superior Court.
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review, we deny counsel’s petition to withdraw, vacate Appellant’s judgment

of sentence, and remand for resentencing.

        The procedural history of Appellant’s case can be briefly summarized

as follows. On September 26, 2013, Appellant entered a negotiated guilty

plea to, inter alia, three counts of PWID and two counts of carrying a firearm

without a license.        In accordance with the plea agreement, the court

imposed an aggregate term of 5 to 10 years’ incarceration, which included

two mandatory terms of five to ten years’ incarceration for two of Appellant’s

PWID offenses. Those mandatory sentences were imposed under 42 Pa.C.S.

§ 9712.1.1

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1
    That provision states:

        (a) Mandatory sentence.--Any person who is convicted of a
        violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
        233, No. 64), known as The Controlled Substance, Drug, Device
        and Cosmetic Act, when at the time of the offense the person or
        the person's accomplice is in physical possession or control of a
        firearm, whether visible, concealed about the person or the
        person's accomplice or within the actor's or accomplice's reach
        or in close proximity to the controlled substance, shall likewise
        be sentenced to a minimum sentence of at least five years of
        total confinement.

        …

        (c) Proof at sentencing.--Provisions of this section shall not be
        an element of the crime, and notice thereof 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 any evidence presented at trial and shall
(Footnote Continued Next Page)


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      Appellant filed a timely notice of appeal, as well as a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On February 9, 2015,

Appellant’s counsel filed with this Court a petition to withdraw and an

Anders brief. Thus, before we may address the merits of Appellant’s issue,

we must assess counsel’s request to withdraw.       See Commonwealth v.

Garang, 9 A.3d 237, 240 (Pa. Super. 2010).          Counsel must satisfy the

following three requirements before he or she will be permitted to withdraw

from representation:

      First, counsel must petition the court for leave to withdraw and
      state that after making a conscientious examination of the
      record, he has determined that the appeal is frivolous; second,
      he must file a brief referring to any issues in the record of
      arguable merit; and third, he must furnish a copy of the brief to
      the defendant and advise him of his right to retain new counsel
      or to himself raise any additional points he deems worthy of the
      Superior Court's attention.

Id. (quoting Santiago, 978 A.2d at 351 (citation omitted)).

      In the Anders brief that accompanies court-appointed counsel's
      petition to withdraw, counsel must: (1) provide a summary of
      the procedural history and facts, with citations to the record; (2)
      refer to anything in the record that counsel believes arguably
      supports the appeal; (3) set forth counsel's conclusion that the
      appeal is frivolous; and (4) state counsel's reasons for
      concluding that the appeal is frivolous. Counsel should articulate
      the relevant facts of record, controlling case law, and/or statutes
      on point that have led to the conclusion that the appeal is
                       _______________________
(Footnote Continued)

      afford the Commonwealth and the defendant an opportunity to
      present any necessary additional evidence and shall determine,
      by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9712.1.



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      frivolous.

Santiago, 978 A.2d at 361. After confirming that counsel has satisfied his

or her obligations under Anders, this Court must “make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.” Id. at 355 n.5 (citations omitted).

      Here, counsel states in her petition to withdraw that she has

conscientiously reviewed the record and determined that Appellant’s appeal

is frivolous.   Counsel also confirms that she has forwarded a copy of her

Anders brief to Appellant, as well as a letter (which she attached to her

petition to withdraw) advising Appellant of his right to retain new counsel or

proceed pro se and raise any additional points that he deems worthy of this

Court’s consideration. In her Anders brief, counsel summarizes the factual

and procedural history of Appellant’s case with citations to the record. She

also discusses the legality of sentencing issue Appellant seeks to raise, and

refers to everything in the record that could arguably support his appeal.

She then states her reasons for concluding that Appellant’s appeal is wholly

frivolous, and articulates the relevant facts of record and controlling case law

that she believes supports that determination.       Accordingly, we conclude

that counsel has complied with the procedural dictates of Anders and

Santiago.

      Next, we must conduct our own review of the record and Appellant’s

issue to decide whether his appeal is in fact wholly frivolous.       Appellant


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seeks to argue that his two mandatory sentences of five to ten years’

imprisonment, imposed pursuant to 42 Pa.C.S. § 9712.1, are illegal in light

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

133 S.Ct. 2151 (2013) (holding that any fact that increases a mandatory

minimum sentence is an element of the crime, not a sentencing factor, that

must be submitted to the fact-finder and proven beyond a reasonable

doubt), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc) (holding that, pursuant to Alleyne, 42 Pa.C.S. § 9712.1 is

unconstitutional).

      To begin, “we note that issues pertaining to Alleyne go directly to the

legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 123

(Pa. Super. 2014).

      “A challenge to the legality of a sentence ... may be entertained
      as    long    as   the   reviewing    court    has    jurisdiction.”
      Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n. 8 (Pa.
      Super. 2011) (citation omitted). It is also well-established that
      “[i]f no statutory authorization exists for a particular sentence,
      that sentence is illegal and           subject to correction.”
      Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014)
      (citation omitted). “An illegal sentence must be vacated.” Id.
      “Issues relating 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. Akbar,
      91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted).

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014).

      Despite Newman’s holding that section 9712.1 is unconstitutional

under Alleyne, Appellant’s counsel concludes that his sentences under that

provision are not illegal because “Appellant pled guilty pursuant to a

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negotiated plea agreement rather than proceed to a jury trial.”          Anders

Brief at 18. This argument is meritless. Appellant’s sentence is necessarily

illegal because the statute under which it was imposed - 42 Pa.C.S. § 9712.1

– is unconstitutional. See Rivera, 95 A.3d at 915 (stating “[i]f no statutory

authorization exists for a particular sentence, that sentence is illegal”).

       Moreover, counsel’s argument is unconvincing in light of this Court’s

decision in Fennell. There, we addressed whether a defendant’s stipulating

to the total weight of drugs found in his possession, the fact that resulted in

the imposition of a mandatory minimum sentence, was sufficient to satisfy

the dictates of Alleyne. Concluding that it was not, we stated:

             Furthermore, we see no meaningful difference, for the
       purposes of Newman and [Commonwealth v.] Valentine[,
       101 A.3d 801 (Pa. Super. 2014),][2] between submitting the
       element to the jury and accepting a stipulation from a
       defendant. They both have the purpose of finding a method to
       impose a mandatory minimum sentence outside the statutory
       framework, but consistent with Alleyne. However, both
       Newman and Valentine unequivocally state that creating a
       new procedure in an effort to impose a mandatory minimum
       sentence is solely within the province of the legislature. See
       Newman, supra; Valentine, supra. While submission to a jury
       is a more formal and involved procedure, we decline to fracture
       Newman and Valentine further by concluding that when read
       together, they only prohibit formal mandatory minimum
       procedures, but permit informal ones. Based on these
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2
  In Valentine, we held that the trial court’s permitting the jury, on the
verdict slip, to determine facts which led to the imposition of two mandatory
minimum sentences amounted to the trial court’s performing “an
impermissible legislative function by creating a new procedure in an effort to
impose the mandatory minimum sentences in compliance with Alleyne.”
Valentine, 101 A.3d at 811.



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      considerations, we conclude that the trial court erred in imposing
      the mandatory minimum sentence in this case.

Fennell, 105 A.3d at 20.      Here, allowing the imposition of a mandatory

minimum sentence pursuant to section 9712.1 on the basis that Appellant

entered a negotiated guilty plea would impermissibly “creat[e] a new

procedure in an effort to impose a mandatory minimum sentence[, which] is

solely in the province of the legislature.” Id.

      Accordingly, we conclude that Appellant’s two mandatory minimum

sentences imposed under 42 Pa.C.S. § 9712.1 are illegal.       Therefore, we

vacate Appellant’s sentence and remand for resentencing.         Because we

disagree with counsel that Appellant’s sentencing issue is frivolous, we deny

her petition to withdraw. Our independent review of the record reveals no

other issues of arguable merit.

      Judgment of sentence vacated.         Case remanded for resentencing.

Petition to withdraw denied. Jurisdiction relinquished.

      Judge Stabile joins this memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015


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