J-S17007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN RYAN CARR,

                            Appellant                 No. 430 WDA 2015


                  Appeal from the PCRA Order February 4, 2015
                In the Court of Common Pleas of Jefferson County
    Criminal Division at No(s): CP-33-CR-0000026-2009, CP-33-CR-0000125-
           2009, CP-33-CR-0000126-2009, CP-33-CR-0000127-2009


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:
                                    FILED: APRIL 14, 2016

        I join in the learned Majority’s apt analysis of Appellant’s first issue

presented on appeal, i.e., that the revocation court abused its discretion in

resentencing Appellant outside of the bounds of his original plea agreement.

Appellant’s Brief 4. However, I am compelled to write separately to register

my dissent and concern with regard to Appellant’s second issue, i.e., that

the sentence imposed upon revocation of Appellant’s probation is illegal

pursuant to recent developments in case law involving mandatory minimum

sentences. Id.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       My review of the certified record in this matter reflects the following

history.    On February 17, 2010, Appellant pled guilty to four counts of

delivery of a controlled substance in Jefferson County. On that same date,

pursuant to a plea agreement, the trial court sentenced Appellant terms of

incarceration of fourteen months to three years, to be followed by two years

of probation for each conviction. The sentencing court directed that all four

sentences were to run concurrently.              While Appellant was released on

supervision, he committed new crimes in Clarion County.1

       On September 18, 2013, the Jefferson County Court of Common Pleas

held a Gagnon II revocation hearing relating to the four docket numbers

listed in this case. At the hearing, the revocation court took judicial notice of

Appellant’s guilty plea and sentence in Clarion County and revoked

Appellant’s probation.       At the conclusion of the Gagnon II hearing, the

revocation court sentenced Appellant to serve consecutive terms of

incarceration of five to fifteen years on each of the four counts of delivery of

a controlled substance. Thus, Appellant received an aggregate sentence of

incarceration of twenty to sixty years.          In addition, the revocation court

ordered Appellant’s new sentence to run consecutively to Appellant’s Clarion

____________________________________________


1
  Appellant pled guilty in the Clarion County Court of Common Pleas to
delivery of a controlled substance, drug delivery resulting in death, criminal
use of communication, and abuse of a corpse. In Clarion County Appellant
was sentenced to an aggregate term of incarceration of eight to sixteen
years.



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County sentence. Appellant filed a motion for reconsideration of sentence,

which was denied. Appellant took a direct appeal, and this Court affirmed

his judgment of sentence on June 16, 2014.          Commonwealth v. Carr,

1699 WDA 2013, 105 A.3d 34 (Pa. Super. filed June 16, 2014) (unpublished

memorandum).

       Appellant timely filed the instant PCRA petition, and the PCRA court

appointed counsel.       Thereafter, PCRA counsel filed a petition to withdraw

and a Turner/Finley “no-merit” letter.2 On that same date, the PCRA court

permitted counsel to withdraw and issued its Pa.R.Crim.P. 907 notice of

intent to dismiss the PCRA petition without a hearing. Appellant then filed a

pro se response. The PCRA court dismissed the PCRA petition on February

4, 2015. This timely pro se appeal followed. Both Appellant and the PCRA

court have complied with Pa.R.A.P. 1925.

       In his second issue presented to this Court on appeal, Appellant

argues that the revocation court imposed illegal mandatory minimum

sentences for his convictions of possession with intent to deliver. Appellant’s

Brief at 13-17. Specifically, Appellant contends that his minimum sentences

of five years of incarceration were mandatory minimum sentences imposed




____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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pursuant to 18 Pa.C.S. § 7508, and are in violation of Alleyne v. United

States, 133 S.Ct. 2151 (2013), and its Pennsylvania progeny.3

       In Alleyne the United States Supreme Court determined that any fact

that increases a mandatory minimum sentence is an element of the crime,

not a sentencing factor, and must be submitted to the jury to be determined

beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155, 2161, 2163. The

Court in Alleyne noted that “the essential Sixth Amendment inquiry is

whether a fact is an element of the crime. When a finding of fact alters the

legally prescribed punishment so as to aggravate it, the fact necessarily

forms a constituent part of a new offense and must be submitted to the

jury.” Id. at 2162. Alleyne was decided on June 17, 2013, three months

prior to the imposition of Appellant’s probation revocation sentence.

       Since the decision in Alleyne, and after imposition of Appellant’s

probation revocation sentence on September 18, 2013, this Court has struck

down numerous mandatory minimum sentencing statutes.             Of particular

import in this case is our en banc decision in Commonwealth v. Vargas,

(Pa. Super. 2014) (en banc), which held that, pursuant to Alleyne, as well

as this Court’s decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa.
____________________________________________


3
   It requires mention that Appellant did not raise this specific issue
challenging the legality of his sentence before the PCRA court or at any time
prior to presenting it to this Court on appeal. However, as discussed by the
Majority, “a challenge to a sentence premised upon Alleyne … implicates the
legality of the sentence and cannot be waived on appeal.” Commonwealth
v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).



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Super. 2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801

(Pa. Super. 2014), 18 Pa.C.S. § 7508 is unconstitutional and concluded that

a mandatory minimum sentence imposed under the statute is illegal. See

also Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014)

(holding that, notwithstanding the fact triggering the imposition of a

mandatory sentence under 18 Pa.C.S. 7508 was stipulated to at trial, the

statute was unconstitutional); Commonwealth v. Cardwell, 105 A.3d 748

(Pa. Super. 2014) (holding trial court erred by imposing mandatory

minimum sentence under Section 7508, even where parties stipulated to

weight of drugs; applying Newman and its progeny, and concluding that

Section 7508(b) is not severable from remainder of statute; and remanding

for resentencing without imposition of mandatory minimum sentence).

Therefore, pursuant to the current case law, a mandatory minimum

sentence imposed under 18 Pa.C.S. § 7508 is illegal.4

____________________________________________


4
  Case law authored by this Court is controlling unless the Supreme Court
rules otherwise. Indeed, we must follow the decisional law established by
our own Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa.
Super. 2009).

       Furthermore, recently in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015), our Supreme Court, in a direct appeal filed by the
Commonwealth from an order of the Court of Common Pleas, relied upon
Alleyne and struck down as unconstitutional the mandatory minimum
sentencing scheme regarding drug-free school zones set forth in 18 Pa.C.S.
§ 6317. In pertinent part, the Court in Hopkins refused to sever the
violative provisions from the statute, which was the same determination
reached by this Court in Newman.
(Footnote Continued Next Page)


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      Instantly, my concern is that the probation revocation court may have

imposed an illegal mandatory minimum sentence under section 7508 when it

sentenced Appellant to a minimum term of incarceration of five years for

each of the four counts of delivery of a controlled substance. After reviewing

the transcript of the probation revocation hearing and sentencing, it is

apparent that the revocation court did not specifically mention application of

section 7508.5    However, given the length of the revocation sentence and

the fact that we have held section 7508 to be unconstitutional, I believe that

an abundance of caution should prevail in this circumstance.                 Therefore, I

suggest that the more prudent approach would be for this Court to remand

the matter to the PCRA court for a specific determination of whether the

illegal statute was considered or utilized in fashioning Appellant’s sentence

after his probation was revoked.6

      Moreover, the probation revocation court alluded to the fact that it was

relying   upon   multiple      documents         in   fashioning   Appellant’s   sentence.

Specifically, the court made the following statement prior to imposing the

instant sentence:

                       _______________________
(Footnote Continued)


5
 Appellant has conceded that “the court did not mention a mandatory
minimum sentence under the statute. . . .” Appellant’s Brief at 13.
6
  I note that the same judge of the Court of Common Pleas of Jefferson
County imposed Appellant’s judgment of sentence following the revocation of
his probation and denied Appellant’s subsequent PCRA petition.



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     THE COURT: Well, I reviewed the presentence investigation, the
     attached original presentence by Mr. Pierce and your sentence to
     state prison, the attached criminal complaint and affidavit of
     probable cause for the new charges regarding Devan Knapp’s
     death which were filed in Clarion County, the notice of new
     charges filed by the State Board of Probation and Parole, the
     sentence given by Judge Arner regarding that case, the
     presentence investigation of Clarion County which is attached. .
     . . ultimately, the probation recommendation for me to go with
     it, if I understand it correctly, it would essentially be an
     additional 5 to 15 years beyond the sentence you received for
     Ms. Knapp’s death as a result of a drug delivery . . .

N.T., 9/18/13, at 3.     My review reflects that none of the documents

mentioned by the probation revocation court are included in the certified

record for our review. Accordingly, I respectfully dissent with regard to the

second issue and would remand for clarification.




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