J-S45007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

VIKRAM YAMBA,

                             Appellant                  No. 890 WDA 2015


                  Appeal from the PCRA Order of May 21, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001536-2012


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 4, 2016

       Appellant, Vikram Yamba, appeals from the order entered on May 21,

2015, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.             We vacate the order of the PCRA

court, vacate the judgment of sentence, and remand for resentencing.

       On January 8, 2013, a jury found Appellant guilty of two counts of

robbery, two counts of aggravated assault, and one count each of simple

assault, recklessly endangering another person, and attempt to commit theft

by unlawful taking.1        See N.T. Trial, 1/8/13, at 131-134.   The convictions

arose out of Appellant’s armed entry into a convenience store, in an attempt

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1
 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 2702(a)(1) and (4), 2701(a)(3),
2705, and 901(a), respectively.



*Retired Senior Judge assigned to the Superior Court.
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to take money from the register. Upon learning that there was no cash in

the register, Appellant fired two shots in random directions before fleeing

through the front door. An employee heard a third gunshot and watched the

glass in the door shatter after they left.

      After conviction and prior to sentencing, the Commonwealth filed a

“Notice of the Commonwealth’s Intention to Proceed Under the Mandatory

Sentencing Provision of 42 Pa.C.S.A. [§] 9712.”       Within the notice, the

Commonwealth informed Appellant that, in accordance with 42 Pa.C.S.A.

§ 9712, it intended to seek the mandatory minimum sentence of five years

in prison, as Appellant “visibly possessed a firearm . . . that placed the

victim in reasonable fear of death or serious bodily injury during the

commission of the offense.”      Commonwealth’s Notice, 1/10/13, at 1; see

also 42 Pa.C.S.A. § 9712(a).

      On February 12, 2013, the trial court held a sentencing hearing and,

during the hearing, the trial court specifically held the elements of Section

9712 were satisfied.    See N.T. Sentencing, 2/12/13, at 10.     Thus, at this

point, the trial court was statutorily required to sentence Appellant to the

mandatory minimum sentence of five years in prison.         See 42 Pa.C.S.A.

§ 9712(a) (“any person who is convicted in any court of this Commonwealth

of a crime of violence as defined in section 9714(g) . . . shall, if the person

visibly possessed a firearm . . . that placed the victim in reasonable fear of

death or serious bodily injury, during the commission of the offense, be


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sentenced to    a minimum sentence        of at least five years of total

confinement”); 42 Pa.C.S.A. § 9712(c) (“[t]here shall be no authority in any

court to impose on an offender to which this section is applicable any lesser

sentence than provided for in subsection (a)”). Moreover, the trial court did,

in fact, sentence Appellant to a term of five to 12 years in prison for

Appellant’s aggravated assault conviction – which satisfied Section 9712, as

the trial court sentenced Appellant “to a minimum sentence of at least five

years of total confinement.” 42 Pa.C.S.A. § 9712(a). Further, the trial court

signed a “Guideline Sentence Form,” where the trial court specifically noted

that it sentenced Appellant to the mandatory minimum sentence of 60

months in prison, under Section 9712, for visibly possessing a firearm.

Guideline Sentence Form, 2/13/13, at 1.           Nevertheless, during the

sentencing hearing, the trial court attempted to justify its sentence on a

number of different grounds. During the sentencing hearing, the trial court

declared:

        The [trial] court notes for the record that this sentence may
        be justified in a number of fashions[.] First, the sentence
        would fall in the aggravated range of the sentencing
        guidelines should the deadly weapon enhancement
        provision not be applied. And the court feels justified in
        sentencing in the aggravated range of the sentencing
        guidelines because the offense occurred while on active
        supervision, serving two sentences in the federal district
        court[.]

        Furthermore, should the deadly weapon provision be
        applied, this would fall in the standard range if the deadly
        weapon enhancement provision were used.            We have
        listened to [Appellant’s] argument that there is insufficient

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        evidence to sustain the deadly weapon enhancement
        provision; however, we disagree and believe there is
        sufficient evidence in the record to sustain the use of the
        deadly weapon enhancement provision[.]

        Finally, the sentence could be justified pursuant to the
        mandatory sentencing provisions of 42 Pa.C.S.A. § 9712.
        Again, we’ve listened to [Appellant’s] argument that the
        victim was not actually in fear at the time of the incident.
        However, we having heard her testimony we believe the
        interpretation is, and inferences from that testimony, also
        would support a conclusion that while perhaps in shock at
        the initial happening of the incident, within seconds and
        upon realization that the glass door had been shot/broken
        by a bullet, that that fear set in and was recognizable by the
        alleged victim[.]

        Accordingly, under any of the three aforementioned
        theories, the sentence of not less than five [] to [no] more
        than [12] years [for aggravated assault] is justified by the
        sentencing guidelines.

N.T. Sentencing Hearing, 2/12/13, at 9-10 (some internal capitalization

omitted).

      The trial court imposed no further penalty for Appellant’s remaining

convictions. Id. at 10.

      A prior panel of this Court summarized the procedural history of this

case as follows:

        Appellant filed a post-sentence motion on February 26,
        2013, which the trial court denied. Appellant filed a notice
        of appeal with this Court on May 16, 2013. . . . On
        December 27, 2013, this [C]ourt dismissed the notice of
        appeal for failure of counsel to file a brief on Appellant’s
        behalf. On January 21, 2014, Appellant filed a pro se
        petition pursuant to the [PCRA]. The trial court appointed
        counsel, who filed an amended PCRA petition on March 6,
        2014, seeking reinstatement of Appellant’s direct appeal
        rights.   The trial court granted the PCRA petition and

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           Appellant filed a nunc pro tunc notice of appeal on March
           27, 2014.

Commonwealth v. Yamba, 106 A.3d 157 (Pa. Super. 2014) (unpublished

memorandum) at 3-4. This Court affirmed Appellant’s judgment of sentence

on August 11, 2014.          Id. at 1-12.      Appellant did not file a petition for

allowance of appeal to our Supreme Court.

       On November 7, 2014, Appellant filed a timely, pro se PCRA petition.

The PCRA court appointed counsel to represent Appellant and counsel filed

an amended PCRA petition on Appellant’s behalf.               Within the amended

petition, Appellant claimed that his sentence was illegal, as he was

sentenced to a mandatory minimum term of incarceration under 42

Pa.C.S.A. § 9712 and, in Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151 (2013), the United States Supreme Court effectively rendered

Section 9712 unconstitutional.2          Amended PCRA Petition, 1/15/15, at 1-3;

see also Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)

(holding     that     Alleyne      rendered      42    Pa.C.S.A.   § 9712    wholly

unconstitutional).

       On May 21, 2015, the PCRA court held a hearing on Appellant’s PCRA

petition and, at the conclusion of the hearing, the PCRA court denied

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2
  We note that the United States Supreme Court decided Alleyne on June
17, 2013, which was after Appellant was sentenced but while Appellant’s
direct appeal was pending before this Court.




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Appellant’s petition on the record. N.T. PCRA Hearing, 5/21/15, at 10. As

the PCRA court later explained in its opinion:

        Review of the sentencing proceedings transcript dated
        February 12, 2013 clearly establishes that, while
        acknowledging both the deadly weapon enhancement and
        the mandatory sentencing requirement of [Section] 9712 in
        existence at the time, [the trial court] expressly did not rely
        on either of those provisions in determining [Appellant’s]
        sentence. . . .

        The sentence imposed was within the statutory sentencing
        guidelines, albeit in the aggravated range, and the reasons
        for that sentence appear on the record as required.

PCRA Court Opinion, 6/17/15, at 1 (some internal capitalization omitted).

      Appellant filed a timely notice of appeal.      Appellant presents the

following issue for our review:

        Whether the PCRA court erred in denying [Appellant’s]
        petition when [Appellant] was sentenced according to the
        mandatory sentencing provisions of 42 Pa.C.S.A. § 9712?

Appellant’s Brief at 3.

      We observe our well-established standard of review: “In reviewing the

denial of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotations and citations omitted).

        Alleyne challenges implicate the legality of a sentence. A
        challenge to the legality of a sentence may be entertained
        as long as the reviewing court has jurisdiction. An illegal
        sentence must be vacated. 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.


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Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal

citations, quotations, and corrections omitted).

       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States

Supreme Court expanded “Apprendi’s basic jury-determination rule to

mandatory minimum sentences.”             Alleyne, ___ U.S. at ___, 133 S.Ct. at

2167 (Breyer, J., concurring).          Specifically, the Alleyne court held that,

where an “aggravating fact” increases a mandatory minimum sentence, “the

fact is an element of a distinct and aggravated crime.           [The fact] must,

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

Alleyne, 133 S.Ct. at 2162-2163.

       As this Court has held, Alleyne rendered 42 Pa.C.S.A. § 9712 wholly

unconstitutional.     Valentine, 101 A.3d at 812.        However, Appellant was

sentenced on February 12, 2013 and Alleyne was not decided until June 17,

2013. Therefore, at the time Appellant was sentenced, 42 Pa.C.S.A. § 9712

was still in force.3 The relevant portions of the statute read:

         § 9712. Sentences for offenses committed with firearms
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3
  Again, the United States Supreme Court decided Alleyne while Appellant’s
direct appeal was pending before this Court.



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       (a) Mandatory sentence.-- . . . any person who is
       convicted in any court of this Commonwealth of a crime of
       violence as defined in section 9714(g) . . . shall, if the
       person visibly possessed a firearm or a replica of a firearm,
       whether or not the firearm or replica was loaded or
       functional, that placed the victim in reasonable fear of death
       or serious bodily injury, during the commission of the
       offense, be sentenced to a minimum sentence of at least
       five years of total confinement notwithstanding any other
       provision of this title or other statute to the contrary. Such
       persons shall not be eligible for parole, probation, work
       release or furlough.

       (b) 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 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.

       (c) Authority of court in sentencing.--There shall be no
       authority in any court to impose on an offender to which
       this section is applicable any lesser sentence than provided
       for in subsection (a) or to place such offender on probation
       or to suspend sentence. Nothing in this section shall prevent
       the sentencing court from imposing a sentence greater than
       that provided in this section. Sentencing guidelines
       promulgated      by   the   Pennsylvania Commission        on
       Sentencing shall not supersede the mandatory sentences
       provided in this section.

       (d) Appeal by Commonwealth.--If a sentencing court
       refuses to apply this section where applicable, the
       Commonwealth shall have the right to appellate review of
       the action of the sentencing court. The appellate court shall
       vacate the sentence and remand the case to the sentencing
       court for imposition of a sentence in accordance with this

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        section if it finds that the sentence was imposed in violation
        of this section.

42 Pa.C.S.A. § 9712.

     Thus, under the law that existed at the time Appellant was sentenced,

where the Commonwealth filed notice that it intended to proceed under

Section 9712, and where the trial court found that the elements of Section

9712 were established by a preponderance of the evidence, the trial court

had no authority but to impose a sentence in accordance with the

provisions of that section. 42 Pa.C.S.A. § 9712(c). In other words, when

triggered by the Commonwealth’s notice, Section 9712 automatically limited

the trial court’s discretion in sentencing enumerated felonies committed with

a firearm.    Commonwealth v. Foster, 17 A.3d 332, 347 (Pa. 2011);

Commonwealth v. Pittman, 528 A.2d 138, 143 (Pa. 1987).

     Prior to sentencing in this case, the Commonwealth filed notice that, in

accordance with 42 Pa.C.S.A. § 9712, it intended to seek the mandatory

minimum sentence of five years in prison, as Appellant “visibly possessed a

firearm . . . that placed the victim in reasonable fear of death or serious

bodily injury during the commission of the offense.”         Commonwealth’s

Notice, 1/10/13, at 1; see also 42 Pa.C.S.A. § 9712(a). Aggravated assault

is an enumerated crime of violence to which Section 9712 applies.         42

Pa.C.S.A. § 9714(g). Further, during the sentencing hearing, the trial court

determined that:       Appellant visibly possessed a firearm; Appellant’s

possession of the firearm placed another in reasonable fear of death or

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serious bodily injury; and, such possession took place during the commission

of the offense. See N.T. Sentencing, 2/12/13, at 9-10. Therefore, the only

sentencing authority vested in the trial court was to sentence Appellant “to a

minimum sentence of at least five years of total confinement.” 42 Pa.C.S.A.

§ 9712(a). As such, the trial court had no discretion to alter the “floor” of

Appellant’s sentence, and any other justification it may have offered for

Appellant’s sentence is immaterial.4 Moreover, and as was explained above,

the trial court signed a “Guideline Sentence Form,” where the trial court

specifically noted that it sentenced Appellant to the mandatory minimum

sentence of 60 months in prison, under Section 9712, for visibly possessing

a firearm. Guideline Sentence Form, 2/13/13, at 1.

       Therefore, in this case, the trial court sentenced Appellant to the

mandatory minimum sentence under Section 9712, and Appellant’s sentence

is clearly illegal.     As such, we vacate the PCRA court’s order, vacate

Appellant’s judgment of sentence, and remand this case for resentencing.

       Order vacated.      Judgment of sentence vacated.   Case remanded for

resentencing. Jurisdiction relinquished.
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4
   Further, it does not follow that, by sentencing Appellant to a term of five
to 12 years in prison (as opposed to a term of five to ten years in prison),
the trial court was exercising its own discretion without regard for the
mandatory sentence under Section 9712. See N.T. PCRA Hearing, 5/21/15,
at 6. Section 9712 expressly permits sentences greater than the mandatory
minimum and does not set an upward boundary on the term of years. 42
Pa.C.S.A. § 9712(c) (“Nothing in this section shall prevent the sentencing
court from imposing a sentence greater than that provided in this section”).



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     Judge Dubow joins this Memorandum.

     Judge Platt concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




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