J-S46030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                       v.

FRANK BAILEY

                             Appellant              No. 2225 MDA 2013


           Appeal from the Judgment of Sentence October 11, 2013
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003342-2012


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 26, 2014

        Frank Bailey appeals from his judgment of sentence, entered in the

Court of Common Pleas of Lancaster County, after being found guilty by a

jury of delivery of cocaine.1 Bailey was sentenced to a 2-4 year2 mandatory

minimum sentence, based upon the Drug-Free School Zone statute, 18

Pa.C.S. § 6317.             After careful review, we vacate and remand for

resentencing.



confidential informant (CI) on the evening of December 6, 2011. The CI had

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
                                              -range for his offense (based
upon an offense gravity score of 6 and a prior record score of 3) under the
Sentencing Guidelines.
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been working with members of the Selective Enforcement Unit (SEU) of the
                                                                               3
                                                                     -              Instantly,

the police provided $40 in buy money to the CI, who placed a phone call to



cocaine.    A few minutes after the CI confirmed the meeting with JuJu, a

green Dodge Caravan entered the prearranged buy area where the CI

approached      the   vehicle    as   a   police   officer   stood       on   the    sidewalk

approximately 25 feet away from the minivan to clearly observe the



door, walk to the rear of the vehicle and engage in a hand-to-hand

transaction with the CI.

       Soon after the controlled buy, another officer, in full uniform and

driving a marked police cruiser, stopped the green minivan in a nearby

Turkey Hill Convenience Store parking lot, spoke to the driver and identified

the passenger of the van as Bailey. Bailey, who was positively identified by

the police officer who observed the transaction, was charged with one count

of delivery of a controlled substance. Included in the criminal complaint, bill

of information and affidavit of probable cause was the allegation that the

crime occurred within a school zone.


____________________________________________


3
             -                                                  -level drug
dealer, after which an unrecognized dealer would be stopped by the police in
a marked car and asked for identification.



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        After the first day of a two-day trial, the parties stipulated on the

record, but outside of the presence of the jury, that the drug delivery

occurred within 1,000 feet of a school. N.T. Jury Trial, 8/15/13, at 76-77.4

At the close of the second day of trial, the Commonwealth called Officer

Robert Whiteford as a witness.                 Officer Whiteford was the secondary

surveillance officer on duty at the time of the controlled buy involving Bailey.



assisting in the operation of the buy-walk detail. Officer Whiteford, sitting in

his car approximately 25 feet from the minivan during the delivery, was in

radio contact with the undercover officer standing across from the

intersection where the controlled buy occurred.           Officer Whiteford, referring

to a map entered at trial as an exhibit, testified that the controlled buy
____________________________________________


4
    In his opening statement to the jury, the assistant district attorney stated:



        Now, the elements of this crime are that the Commonwealth
        must prove that the defendant, Frank Bailey, delivered which

        handling of something to another individual          a controlled
        substance, in this case the controlled substance is cocaine, and
        that he did this within a school zone.

                       going to hear


        elements are.

N.T. Jury Trial, 8/15/13, at 30 (emphasis added).




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involving Bailey occurred within a school zone. N.T. Jury Trial, 8/16/13, at

118.

        At the close of trial, the jury found Bailey guilty of delivery of cocaine;5

the jury verdict, however, made no finding regarding whether the drugs

were delivered in a school zone. Verdict, 8/15/13. On October 11, 2013,

sentencing was held in the case; however, because Bailey did not appear at

the hearing, sentencing was conducted in absentia.6                    Prior to imposing

sentence, defense counsel objected to application of the two-year mandatory

minimum under section 6317, arguing that it was improperly applied by the

court because the jury had made no finding as to whether the offense

occurred in a school zone. The trial court imposed a 2 to 4 year sentence of

imprisonment based upon the mandatory minimum sentence under section

6317 and the guidelines, imposing a six-month aggravating factor.7 Bailey

filed unsuccessful post-sentence motions. This timely appeal followed.

        On   appeal,    Bailey   presents      the   following   two    issues   for   our

consideration:
____________________________________________


5
    The cocaine delivered weighed approximately .12 grams.
6
    Defense counsel acknowledged that notice of sentencing was sent to


7
  See
based on two things: Number one, the mandatory minimum. . . .         But
also, the guidelines. I consider this to be an aggravated offense because




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      (1)   Did the trial court illegally sentence Mr. Bailey to a

            to 18 Pa.C.S. § 6317, where the jury did not make a
            specific finding that Mr. Bailey committed the offense in a
            school zone, as require by Alleyne v. United States, 133
            S.Ct. 2151 (2013)?

      (2)   Did the trial court abuse its discretion by imposing a

            sentence at the top of the aggravated range of the
            sentencing guidelines, without legitimate basis?

      Pursuant to 18 Pa.C.S. § 6317 (Drug-free school zones):

      § 6317. Drug-free school zones.

      (a) General rule. --A person 18 years of age or older who is
      convicted in any court of this Commonwealth of a violation of
      section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233,
      No. 64), known as The Controlled Substance, Drug, Device and
      Cosmetic Act, shall, if the delivery or possession with intent to
      deliver of the controlled substance occurred within 1,000 feet of
      the real property on which is located a public, private or
      parochial school or a college or university or within 250 feet of
      the real property on which is located a recreation center or
      playground or on a school bus, be sentenced to a minimum
      sentence of at least two years of total confinement,
      notwithstanding any other provision of this title, The Controlled
      Substance, Drug, Device and Cosmetic Act or other statute to
      the contrary.

18 Pa.C.S. § 6317(a) (emphasis added). A trial court has no authority to

impose upon a defendant a lesser sentence than that provided in section

6317(a). Id. §6317(c).



Id. § 6317(b).      Rather, the Commonwealth must give a defendant

reasonable notice, after conviction and before sentencing, of its intention to

proceed under section 6317.        Id.    The court shall determine, by a


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preponderance of the evidence at sentencing, whether section 6317 applies

based upon evidence presented at trial and shall afford the Commonwealth

and the defendant an opportunity to present necessary additional evidence.

Id.



recent decision, Alleyne v. United States, 133 S.Ct. 2151 (2014), the

issue of whether Bailey delivered drugs within 1,000 feet of a school zone is

an element of the underlying offense that must be proven, beyond a

reasonable doubt, by the factfinder.    In Alleyne, a case concerning the

application of a federal mandatory minimum statute, the Supreme Court

held that any fact that triggers an increase in the mandatory minimum

sentence for a crime is necessarily an element of the offense. Id. at 2163-

64.   The Supreme Court reasoned that "the core crime and the fact

triggering the mandatory minimum sentence together constitute a new,

aggravated crime" and consequently that the Sixth Amendment requires

that every element of the crime, including any fact that triggers the

mandatory minimum, must be alleged in the charging document, submitted

to a jury, and found beyond a reasonable doubt. Id. at 2160-64.

      In Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), our

Court recently discussed the application of Alleyne

mandatory minimum statutes:

      This term, in Alleyne, the United States Supreme Court
      expressly overruled Harris, holding that any fact that increases
      the mandatory minimum sentence for a crime "is 'an element'

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     that must be submitted to the jury and found beyond a
     reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The
     Alleyne majority reasoned that "[w]hile Harris limited Apprendi
     to facts increasing the statutory maximum, the principle applied
     in Apprendi applies with equal force to facts increasing the
     mandatory minimum." Alleyne, 133 S.Ct. at 2160. This is
     because "[i]t is impossible to dissociate the floor of a sentencing
     range from the penalty affixed to the crime[,]" and "it is
     impossible to dispute that facts increasing the legally prescribed
     floor aggravate the punishment." Id. at 2161. Thus, "[t]his
     reality demonstrates that the core crime and the fact triggering
     the mandatory minimum sentence together constitute a new,
     aggravated crime, each element of which must be submitted to
     the jury." Id.

Id. at 665. In Munday, the Court held that even where a statute



                          ctor at issue still had to be determined by the

factfinder, beyond a reasonable doubt. Id. at 666. Thus, the Court found



sentence under section 9712.1 (sentences for certain drug offenses

committed with firearms), violated the Due Process Clause of the Fourteenth

Amendment and the jury trial guarantee of the Sixth Amendment.             As a



remanded for resentencing. Id. at 667.

     The principles announced in Alleyne, as interpreted by our Court in

Munday, are equally applicable to the instant issue of whether evidence that

the delivery of drugs occurred within 1,000 feet of a school zone must go

before a factfinder, and be found beyond a reasonable doubt, before the

mandatory minimum sentence under section 6317 can be applied to a


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sections 6317(c) (Drug-free school zones) and 9712.1(c) (sentences for

drug offenses committed with firearms in Munday) is identical. However,

unlike the facts in Munday, here the parties stipulated at trial that the drug

delivery occurred within 1,000 feet of a school.    Specifically, the following

exchange took place on the record, after the jury retired:

      The Court: All right. Are we going to have a stipulation on
      the school zone or is there going to be testimony and I
      need to have that part of the verdict slip?

      Assistant Public Defender:
      within 1,000 feet of a school.

      The Court: If it occurred, it occurred within a thousand feet.

      Assistant Public Defender:
      agreeing this happened, though, within 250 feet of a primary or
      secondary school, which would invoke any enhanced guidelines,
      though. I probably would refer to     whether the school zone
      mandatory

      Assistant District Attorney: I would have no problem with the
      verdict slip just saying within a thousand feet.

N.T. Jury Trial, 8/15/13, at 76 (emphasis added).




research and now believed that the issue of whether the drug delivery

occurred within 1,000 feet of a school was something that needed to be

submitted to a jury pursuant to Alleyne. N.T. Sentencing, 10/11/13, at 5.

Specifically, counsel claimed that his client never waived the right for the

jury to consider whether the drug delivery occurred within the proscribed


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distance from a school under section 6317, that the issue goes to the

                                              -waivable. We are constrained

to agree.

      A mandatory minimum sentencing claim that invokes the reasoning of

Alleyne implicates the legality of the sentence. Munday, 78 A.3d at 664;

Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en

banc).   "A challenge to the legality of the sentence may be raised as a

matter of right, is non-waivable, and may be entertained so long as the

                                   See Commonwealth v. Foster, 960 A.2d

160 (Pa. Super. 2008),         , 17 A.3d 332 (Pa. 2011).      Here, even the

Commonwealth concedes that the school zone mandatory minimum is not

applicable because the jury did not specifically find that Bailey had



Compare Commonwealth v. Matteson, 2014 PA Super 149 (Pa. Super.



imposition of mandatory minimum on conviction for aggravated indecent

assault of child less than 13 years of age did not violate Sixth Amendment

under Alleyne); Watley, 81 A.3d 108 (Pa. Super. 2013) (where jury found

defendant possessed firearms based on other convictions related to same

incident, factual predicates for determining mandatory minimum under

section 9712.1 (drug offenses committed with firearms) were proven to jury

beyond reasonable doubt; sentence was not illegal under Alleyne). Despite

the fact that the assistant district attorney stated to the jury in his closing

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N.T. Jury Trial, 8/16/13, at 143, he also indicated that there was an

agreement by the parties on this issue, and the jury was never asked to

determine that issue when rendering its verdict on the underlying drug

offense. Neither the parties, by way of stipulation, nor the trial judge, could

take this issue away from the jury, as the finder of fact, under the dictates

of Alleyne.



controlled substance occurred within 1,000 feet of the real property on which



                                                                      Munday,

78 A.3d at 666, the imposition of the mandatory sentencing provision of

section 6317 violated the rule in Apprendi as interpreted by Alleyne.

                                                                          ocess

Clause of the Fourteenth Amendment and the jury trial guarantee of the

Sixth Amendment, and must be vacated. Munday, supra.



the mandatory minimum sentence under section 6317, the sentencing

scheme has been upset. Accordingly, we must remand the case to the trial

court for resentencing.8

____________________________________________


8
    We instruct the trial court, upon remand, that it is not to consider section

(Footnote Continued Next Page)


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      Judgment of sentence vacated.9 Case remanded for resentencing,10 in

accordance with the dictates of this decision. Jurisdiction relinquished.

      SHOGAN, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




                       _______________________
(Footnote Continued)

with pre-Alleyne procedure when the Commonwealth failed to present
sufficient 6317 evidence before the trial judge at sentencing and was
permitted to put new evidence before the re-sentencing court. Compare
Commonwealth v. Wilson, 934 A.2d 1191 (Pa. 2007) (pre-Alleyne,
Commonwealth permitted to present sentence enhancement evidence at
sentencing hearing on remand after original sentence vacated due to
insufficient evidence supporting application of enhancement; no double
jeopardy concerns implicated and vacation of original sentence allows court
to treat case anew for evidentiary purposes). We do note, however, that
upon resentencing a court may look to other factors not previously
enumerated since the trial court will be free to impose an entirely new
sentence.
9
                                                                            -
113(a)(30), however, shall remain undisturbed.
10
   Having determined that the sentencing scheme is upset and we must
remand the case to the trial court for resentencing, see Commonwealth v.
Sutton
regarding the discretionary aspect of his sentence moot.



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