J-S14007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
BERNARDINO REYES-GUITIERREZ,               :
                                           :
                   Appellant               : No. 3096 EDA 2013

              Appeal from the Judgment of Sentence July 8, 2013,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0000366-2012

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED MARCH 16, 2015

        Bernardino Reyes-Guitierrez (“Reyes-Guitierrez”) appeals from the

judgment of sentence entered following his convictions of possession of a

controlled substance, possession of a controlled substance with intent to

deliver (“PWID”), possession of drug paraphernalia, and conspiracy.1 Upon

review, we must conclude that the sentence imposed by the trial court is

illegal.   Therefore, we vacate the judgment of sentence and remand for

resentencing.

        The trial court summarized the facts underlying Reyes-Guitierrez’s

convictions as follows:

                   At a waiver trial before this court, the
              Commonwealth presented testimony from Agents
              Timothy Riley, Avril Eklund, Jeffrey Smith, and Isaac
              Carraway, all members of the Attorney General's


1
    35 P.S. §§ 780-113(a)(16), (30), (32); 18 Pa.C.S.A. § 903.
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          Bureau of Narcotics. Both parties stipulated that all
          drugs recovered from the confidential informant (CI)
          and from [Reyes-Guitierrez’s] home and vehicle
          tested positive for heroin. Additionally, both parties
          stipulated that Reyes-Guitierrez’s brother, had he
          been called to testify, would have testified that
          Reyes-Guitierrez had a reputation for being a law
          abiding citizen.

                The Attorney General's Bureau of Narcotics,
          with assistance from a CI, conducted an
          investigation of Reyes-Guitierrez from October 15
          through October 24, 2011. (Notes of Testimony from
          5/3/13 (hereinafter N.T.) at 9). On the first day of
          the investigation (dates were not given during
          testimony to protect the identity of the CI), the CI
          learned that “George” could secure bundles of heroin
          in the area of Schiller Street in the City and County
          of Philadelphia. Agents provided the CI with
          prerecorded buy money and instructed him to order
          20 bundles of heroin from George. (N.T. at 10-11)
          After placing an order, the CI picked up George in
          the area of F and Allegheny Streets. The pair then
          drove the intersection of I and Schiller Streets where
          agents set up surveillance. (N.T. at 10) George
          entered a barbershop at the intersection and exited
          with Reyes-Guitierrez. The two men walked to a
          parked black Mazda, and engaged in a brief
          conversation. Reyes-Guitierrez then opened the
          trunk and rummaged around inside before closing
          the trunk. George and Reyes-Guitierrez then entered
          the vehicle and drove up the street. They returned in
          less than a minute and parked in the same spot, at
          which point George went back to the CI's vehicle and
          Reyes-Guitierrez returned to the barbershop. (N.T.
          at 28) George and the CI returned to F and
          Alleghany [sic], where they parted company. The CI
          then met Agent Riley at a predetermined location
          and turned over 20 bundles with the word “Shazam”
          printed on the packets. (N.T. at 11) All of the
          packets field tested positive for heroin. (N.T. at 13)




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            Agent Riley instructed the CI to call George and ask
            for twenty more packets of heroine [sic]. The CI was
            informed that it would take about an hour. (N.T. at
            13) The CI was provided $1,300 prerecorded buy
            money and met with George at I and Schiller Streets
            again. (N.T. at 14) George left the vehicle and
            returned after a short period of time. The CI
            proceeded to F and Allegheny Streets where he
            dropped off George. (N.T. at 15) The CI then met
            with Agent Riley and provided him with twenty
            packets of heroin stamped with the word “Shazam”.
            (N.T. at 15-16)

                   Agents determined that the black Mazda was
            registered to 7212 Walker Street in Philadelphia.
            (N.T. at 16) On October 24, 2011, agents executed a
            search warrant on that location, as well as the black
            Mazda and a blue Toyota minivan that had been
            observed at the property. (N.T. at 16, 34) Agents
            found Reyes-Guitierrez on the first floor of the
            property with Ms. Tanya Torres and a minor child. In
            the bedroom, agents found a clear bag with 29.9
            grams of heroin, $1,370 United States Currency
            (USC), 2 forms of identification for Reyes-Guitierrez
            and Ms. Torres, and four cell phones. In a locked
            closet in the basement, agents found 1,686 packets
            of heroin stamped with “Shazam”, numerous empty
            clear baggies with heroin residue, a grinder with
            heroin residue, as well as a straw, spoon, credit card
            and toothbrush with heroin residue. (N.T. at 18) Also
            in the basement were numerous boxes with blue
            glassine inserts, numerous clear plastic bags, and six
            stamps and stamp pads consistent with packaging
            stamps, including one stamp that said “Shazam[.]”
            (N.T. at 18-19) Agents recovered one packet of
            heroin stamped “Shazam” from the Mazda. All of the
            packets bought by the CI and those recovered from
            the property were identical in size, shape, content,
            color, and stamping. (N.T. at 20)

Trial Court Opinion, 9/4/14, at 1-2.




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      Reyes-Guitierrez was convicted of the above-mentioned offenses and

sentenced to a term of six to twelve years of imprisonment. A timely post-

sentence motion was filed and later denied. This timely appeal followed.

      Reyes-Guitierrez presents a single issue for our review:

            Did the lower court err in applying certain provisions
            of the mandatory minimum sentencing statute at 18
            Pa.C.S.[A.] § 7508 to [Reyes-Guitierrez’s] case
            because    portions   of    §   7508    are    facially
            unconstitutional pursuant to Alleyne v. United
            States, 133 S.Ct. 2151 (2013), and are non-
            severable from the remaining provisions of the
            statute?

Reyes-Guitierrez’s Brief at 2.

      As pointed out by the Commonwealth, Reyes-Guitierrez did not raise

this issue in his post-sentence motion, or at any other time, before the trial

court. While the general rule provides that issues cannot be raised for the

first time on appeal, there is a well-established exception for claims

challenging the legality of a sentence. See Commonwealth v. Conaway,

105 A.3d 755, 761 (Pa. Super. 2014). (“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 reviewing court has jurisdiction.”). This Court has

previously held that “issues pertaining to Alleyne go directly to the legality

of the sentence.”     Commonwealth v. Cardwell, 105 A.3d 748, 750

(Pa. Super. 2014). As such, despite Reyes-Guitierrez’s failure to raise this




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issue before the trial court, we will address it on appeal. 2 We do so mindful

that “[a] claim that the trial court erroneously imposed an illegal sentence is

a question of law and, as such, our scope of review is plenary and our

standard of review is de novo.” Commonwealth v. Childs, 63 A.3d 323,

325 (Pa. Super. 2013).

      Reyes-Guitierrez   argues   that    the   mandatory-minimum    sentence

statute that the    trial court applied when formulating his sentence,

18 Pa.C.S.A. § 7508, runs afoul of the United States Supreme Court’s

decision in Alleyne v. United States, __ U.S.__, 133 S.Ct. 2151 (2013).3

The relevant portion of this statute provides as follows:

            (a) General rule.--Notwithstanding any other
            provisions of this or any other act to the contrary,
            the following provisions shall apply:

                                    ***

            (7) A person who is convicted of violating section
            13(a)(14), (30) or (37) of The Controlled Substance,
            Drug, Device and Cosmetic Act where the controlled
            substance or a mixture containing it is heroin shall,
            upon conviction, be sentenced as set forth in this
            paragraph:



2
  The Pennsylvania Supreme Court has accepted allowance of appeal on the
issue of whether a challenge to a sentence pursuant to Alleyne relates to
the legality of the sentence. See Commonwealth v. Johnson, 93 A.3d 806
(Pa. 2014). As of the time of the decision in the present appeal, the
Supreme Court had not yet pronounced its decision on this issue.
3
  In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and that they must be
found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163.


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                                        ***

             (iii) when the aggregate weight of the compound or
             mixture containing the heroin involved is 50 grams
             or greater: a mandatory minimum term of five years
             in prison and a fine of $25,000 or such larger
             amount as is sufficient to exhaust the assets utilized
             in and the proceeds from the illegal activity;
             however, if at the time of sentencing the defendant
             has been convicted of another drug trafficking
             offense: a mandatory minimum term of seven years
             in prison and $50,000 or such larger amount as is
             sufficient to exhaust the assets utilized in and the
             proceeds from the illegal activity.

                                        ***

             (b) Proof of sentencing.--Provisions of this section
             shall not be an element of the crime. Notice of the
             applicability of this section 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 evidence presented at trial, shall afford the
             Commonwealth and the defendant an opportunity to
             present necessary additional evidence and shall
             determine, by a preponderance of the evidence, if
             this section is applicable.

18 Pa.C.S.A. § 7508(a)(7)(iii), (b).

      This   Court   has   previously    determined   that   §   7508   is   wholly

unconstitutional, in that it violates the holding of Alleyne, and therefore,

cannot be enforced. Cardwell, 105 A.3d at 754-55. We note that in that

opinion we reiterated that this is the case – and the statute remains

unenforceable - even where the relevant fact (i.e, the quantity of illegal




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drug) is found by the trier of fact, as it is not for the courts to create ad hoc

remedies, but the job of the legislature to revise the law. Id. at 753-55

(discussing Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014)). Accordingly, we vacate the judgment of sentence and remand for

resentencing without consideration of § 7508.

      Judgment of sentence vacated.            Case remanded.        Jurisdiction

relinquished.

      Musmanno, J. joins the Memorandum.

      Olson, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2015




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