J-S11024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JOHN FELIX MENDEZ, JR.

                            Appellant                       No. 1175 MDA 2014


                Appeal from the Judgment of Sentence June 9, 2014
                 In the Court of Common Pleas of Lancaster County
                Criminal Division at No(s): CP-36-CR-0005554-2012


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED FEBRUARY 18, 2015

        John Felix Mendez, Jr. appeals the judgment of sentence imposed June

9, 2014, in the Lancaster County Court of Common Pleas.                 The trial court

imposed     a    mandatory      minimum        sentence1   of   three   to   six   years’

imprisonment following Mendez’s jury conviction, in absentia, of possession

with intent to deliver cocaine and possession of drug paraphernalia. 2                On

appeal, Mendez contends the sentence imposed is unconstitutional in light of

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

133 S.Ct. 2151 (U.S. 2013). We agree.


____________________________________________


1
    See 18 Pa.C.S. § 7508(a)(3)(ii).
2
    75 Pa.C.S. §§ 780-113(a)(30) and (a)(32).
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       The charges against Mendez arose following the execution of a search

warrant at his residence on St. Joseph Street in Lancaster, Pennsylvania.

The search uncovered 24.9 grams of cocaine, as well as various items used

to cut and package cocaine for distribution. On August 26, 2013, Mendez

filed a motion to suppress the evidence recovered during the search and

statements he made later at the police station. Following a hearing, the trial

court entered an order on November 21, 2013, denying the motion to

suppress.

       After Mendez expressed his desire to proceed pro se, the trial court, on

April 28, 2014, conducted a Grazier3 hearing.      The court determined that

Mendez’s waiver of counsel was knowing and voluntarily, and provided

Mendez with personal notice of his June 9, 2014, trial date.4      On June 3,

2014, Mendez filed a second motion to suppress, pro se, “which contained

no new information that had not been previously determined by the prior

suppression motion and hearing.” Trial Court Opinion, 8/18/2014, at 2.

       On June 9, 2014, Mendez failed to appear for trial.     The trial court

denied Mendez’s second suppression motion, and proceeded to conduct his

jury trial in absentia. The jury returned a verdict of guilty on both charges,

specifically finding (1) the crime occurred within a drug free school zone,
____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4
  According to the trial court, “Court Adminstration also sent [Mendez] notice
of his time and date for trial.” Trial Court Opinion, 8/18/2014, at 2.



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and (2) the weight of the cocaine was 24.9 grams.           See Jury Verdict,

6/9/2014.      See also 18 Pa.C.S. §§ 6317 and 7508.          The trial court

proceeded immediately to sentencing, and imposed a mandatory minimum

sentence, pursuant to 18 Pa.C.S. § 7508(a)(3)(ii),5 of three to six years’

imprisonment on the charge of PWID, and a concurrent term of one year

probation for the charge of possession of paraphernalia.         Mendez was

subsequently arrested on a bench warrant,6 and this timely appeal followed.7

       Mendez’s sole issue on appeal challenges the legality of his sentence.

He argues the trial court’s imposition of the mandatory minimum sentence

set forth in Section 7508 is unconstitutional pursuant to the United States

Supreme Court’s decision in Alleyne. See Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc) (“[A] challenge to a sentence

____________________________________________


5
  See id. (mandatory minimum three year sentence for possession with
intent to deliver more than 10, but less than 100 grams of cocaine).
6
  The trial court stated in its opinion that when Mendez was “picked up on
[the] bench warrant, he told the court that he knew his trial was to begin on
June 9, but he did not appear because he had filed a motion on June 3,
2014.” Trial Court Opinion, 8/18/2014, at 5.
7
    On July 17, 2014, the trial court ordered Mendez to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Mendez complied with the court’s directive, and filed a concise statement,
pro se, on August 7, 2014. Thereafter, on September 29, 2014, Mendez
filed an application for relief in this Court requesting the appointment of
appellate counsel. By order entered September 30, 2014, this Court granted
Mendez’s application and directed the trial court to appoint counsel for direct
appeal. Counsel was subsequently appointed, and filed a substantive brief
on Mendez’s behalf.



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premised upon Alleyne … implicates the legality of the sentence and cannot

be waived on appeal.”).

     In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne,

133 S.Ct. at 2155 (emphasis supplied). Applying that mandate, this Court,

sitting en banc, concluded that Alleyne rendered the mandatory minimum

sentencing provision of 42 Pa.C.S. § 9712.1 unconstitutional.         See

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

     The Newman Court noted that Subsection (c) of that statute

permitted the trial court to determine at sentencing whether the elements

necessary to increase the mandatory minimum sentence, i.e., the defendant

possessed or was in close proximity to a firearm while selling drugs, were

proven by a preponderance of the evidence.            See 42 Pa.C.S. §

9712.1(c).   However, under the reasoning of Alleyne, the en banc Court

found that “Section 9712.1 can no longer pass constitutional muster.”

Newman, supra, 99 A.3d at 98. The Court opined:

     [Section 9712.1(c)] permits the trial court, as opposed to the
     jury, to increase a defendant’s minimum sentence based upon a
     preponderance of the evidence that the defendant was dealing
     drugs and possessed a firearm, or that a firearm was in close
     proximity to the drugs. Under Alleyne, the possession of the
     firearm 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. As
     that is not the case instantly, we are constrained to vacate


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      appellant’s sentence and remand for resentencing without regard
      for any mandatory minimum sentence prescribed by Section
      9712.1.

Id. at 98.

      Furthermore, the Newman Court rejected the Commonwealth’s

suggestion that the illegality of the statute could be remedied upon remand,

by empanelling a jury to consider the factual questions necessary to impose

the mandatory minimum. The Court held:

      We find that Subsections (a) and (c) of Section 9712.1 are
      essentially and inseparably connected.     Following Alleyne,
      Subsection (a) must be regarded as the elements of the
      aggravated crime of possessing a firearm while trafficking drugs.
      If Subsection (a) is the predicate arm of Section 9712.1, then
      Subsection (c) is the “enforcement” arm. Without Subsection
      (c), there is no mechanism in place to determine whether the
      predicate of Subsection (a) has been met.

Id. at 101. The Court concluded “it is manifestly the province of the General

Assembly to determine what new procedures must be created in order to

impose mandatory minimum sentences in Pennsylvania following Alleyne.

We cannot do so.” Id. at 102.

      Following   the   dictates   of   Newman,   an   en   banc   panel   in

Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed

December 31, 2014) (en banc), concluded that the mandatory minimum

provisions set forth in Section 7508, which are structured in the same

manner as Section 9712.1, are also constitutionally infirm. Id. at *17.

      We recognize that the trial court, in the present case, attempted to

comply with the dictates of Newman by requesting the jury to determine



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beyond a reasonable doubt whether the facts supported imposition of the

mandatory minimum sentences. See Jury Verdict, 6/9/2014. However, this

Court rejected such a procedure in Commonwealth v. Valentine, 101 A.3d

801 (Pa. Super 2014).

     In Valentine, the trial court permitted the Commonwealth to amend

the criminal information to include the allegations that the defendant

committed a crime of violence (1) while visibly possessing a firearm and (2)

in or near public transportation, facts necessary to impose mandatory

minimum sentences under 42 Pa.C.S. §§ 9712 and 9713.            Id. at 804.

Furthermore, similar to the present case, the court then included questions

on the verdict sheet which allowed the jury to determine beyond a

reasonable doubt whether the facts supported imposition of the mandatory

minimum.      Id. at 811.   In finding that the trial court performed an

“impermissible legislative function,” the Valentine Court opined:

     The trial court erroneously presupposed that only Subsections
     (c) of both 9712 and 9713 (which permit a trial judge to
     enhance the sentence based on a preponderance of the evidence
     standard) were unconstitutional under Alleyne, and that
     Subsections (a) of 9712 and 9713 survived constitutional
     muster. By asking the jury to determine whether the factual
     prerequisites set forth in § 9712(a) and § 9713(a) had been
     met, the trial court effectively determined that the
     unconstitutional provisions of § 9712(c) and § 9713(c) were
     severable. Our decision in Newman however holds that the
     unconstitutional provisions of § 9712(c) and § 9713(c) are not
     severable but “essentially and inseparably connected” and that
     the statutes are therefore unconstitutional as a whole.

     Moreover, Newman makes clear that “it is manifestly the
     province of the General Assembly to determine what new
     procedures must be created in order to impose mandatory

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       minimum sentences in Pennsylvania following Alleyne.”
       Therefore, the trial court lacked the authority to allow the jury to
       determine the factual predicates of §§ 9712 and 9713.

Id. at 811-812 (internal citations omitted).

       The same is true here. Therefore, we are constrained by Valentine,

Newman and Vargas to reverse the judgment of sentence, and remand for

resentencing     without     consideration     of    the   Section   7508   mandatory

minimum.8

       Judgment of sentence vacated.                Case remanded for resentencing

consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




____________________________________________


8
  We note that, upon remand, the trial court is also precluded from imposing
the “drug-free school zone” mandatory minimum set forth in 18 Pa.C.S. §
6317(a). That statute, too, has been found constitutionally infirm under
Alleyne. See Commonwealth v. Bizzel, ___ A.3d ___, 2014 PA Super
267 (Pa. Super. filed December 2, 2014).



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