J-S26025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANDRE MAURICE ADAMS

                            Appellant                No. 808 MDA 2014


         Appeal from the Judgment of Sentence of February 22, 2013
               In the Court of Common Pleas of Centre County
             Criminal Division at No: CP-14-CR-0000355-2012
                                      CP-14-CR-0001228-2012


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                              FILED JUNE 17, 2015

       Andre Maurice Adams challenges the judgment of sentence that was

entered on February 12, 2013. Adams contends that the sentence that he

received is illegal pursuant to the United States Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).1 We agree. Thus,

we vacate Adams’ judgment of sentence, and we remand for resentencing.




____________________________________________


1
       The trial court, in its Pa.R.A.P. 1925(a) opinion, notes that Adams
failed to preserve this issue in his direct appeal; however, a challenge to the
legality of a sentence premised upon Alleyne cannot be waived. See
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (holding
that Alleyne challenges implicate the legality of the sentence and cannot be
waived).
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       On January 10, 2013, following a jury trial, Adams was found guilty of

thirty-eight charges in two separate dockets.2              At CP-14-CR-1228-2012

(“1228-2012”), Adams was convicted of sixteen counts of possession of a

controlled substance with intent to deliver (“PWID”),3 one count of criminal

conspiracy,4 and one count of criminal use of a communication facility

(“CUCF”).5     At CP-14-CR-355-2012 (“355-2012”), Adams was convicted of

fourteen counts of PWID, and six counts of CUCF.

       On February 12, 2013, the trial court sentenced Adams to an

aggregate sentence of seventy-nine to one hundred fifty-eight years’

imprisonment on the two dockets.               With respect to docket 355-2012, the

trial court issued the following sentences: two to four years’ imprisonment

on the first PWID count and a sentence of guilt with no further penalty on

the second PWID count; two to four years’ imprisonment for the third PWID

count to run consecutively to the first PWID count and a sentence of guilt

with no further penalty on the fourth PWID count; nine to eighteen months’

imprisonment for the first CUCF count to run consecutively to the third PWID

____________________________________________


2
      The factual background of the case sub judice is immaterial to Adams’
challenge to the illegality of his sentence. Thus, we will not summarize the
facts underlying Adams’ convictions.
3
       35 P.S. § 780-113(a)(30).
4
       18 Pa.C.S. § 903.
5
       18 Pa.C.S. § 7512.



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count; two to four years’ imprisonment for the fifth PWID count to run

consecutively to the third PWID count and a sentence of guilt with no further

penalty on the sixth PWID count; nine to eighteen months’ imprisonment for

the second CUCF count to run concurrently with the fifth PWID count; two to

four years’ imprisonment for the seventh PWID count to run consecutively to

the fifth PWID count and a sentence of guilt with no further penalty on the

eighth PWID count; nine to eighteen months’ imprisonment for the third

CUCF count to run concurrently with the seventh PWID count; two to four

years’ imprisonment for the ninth PWID count to run consecutively to the

seventh PWID count and a judgment of guilt with no further penalty on the

tenth PWID count; nine to eighteen months’ imprisonment for the fourth

CUCF count to run concurrently with the ninth PWID count; two to four

years’ imprisonment for the eleventh PWID count to run consecutively to the

ninth PWID count and a judgment of guilt with no further penalty on the

twelfth PWID count; nine to eighteen months’ imprisonment for the fifth

CUCF count to run concurrently with the eleventh PWID count; four to eight

years’ imprisonment for the thirteenth PWID count to run consecutively to

the eleventh PWID count and a sentence of guilt with no further judgment

on the fourteenth PWID count; and nine to eighteen months’ imprisonment

for the sixth CUCF count to run concurrently with the thirteenth PWID count.

The trial court applied standard range sentences for all of the counts at

docket 355-2012. In the aggregate, the sentence for docket 355-2012 was

seventeen and one half to thirty-five years’ imprisonment.

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      With respect to docket 1228-2012, the trial court imposed the

mandatory minimum sentencing provisions set forth in 18 Pa.C.S. § 7508

(setting forth mandatory minimum sentences associated with the weight of

narcotics possessed by a drug dealer), which resulted in the following

sentences: three to six years’ imprisonment for the first PWID count to run

consecutively to the final sentence in docket 355-2012; one to two years’

imprisonment for the second PWID count to run consecutively to the first

PWID count; three to six years’ imprisonment for the third PWID count to

run consecutively to the second PWID count; five to ten years’ imprisonment

for the fourth PWID count to run consecutively to the third PWID count; five

to ten years’ imprisonment for the fifth PWID count to run consecutively to

the fourth PWID count; five to ten years’ imprisonment for the sixth PWID

count to run consecutively to the fifth PWID count; five to ten years’

imprisonment on the seventh PWID count to run consecutively the sixth

PWID count; three to six years’ imprisonment on the eighth PWID count to

run   consecutively   to   the   seventh   PWID   count;   five   to   ten   years’

imprisonment for the ninth PWID count to run consecutively to the eighth

PWID count; five to ten years’ imprisonment for the tenth PWID count to run

consecutively to the ninth PWID count; five to ten years’ imprisonment for

the eleventh PWID count to run consecutively to the tenth PWID count;

three to six years’ imprisonment for the twelfth PWID count to run

consecutively to the eleventh PWID count; three to six years’ imprisonment

for the thirteenth PWID count to run consecutively to the twelfth PWID

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count; three to six years’ imprisonment for the fourteenth PWID count to run

consecutively to the thirteenth PWID count; nine to eighteen months’

imprisonment for the fifteenth PWID count to run consecutively to the

fourteenth PWID count; seven to fourteen years’ imprisonment for the

sixteenth PWID count to run consecutively to the fifteenth PWID count; five

to ten years’ imprisonment for the first conspiracy count to run concurrently

with the sixteenth PWID count; and nine to eighteen months for the first

CUCF count to run concurrently to the sixteenth PWID count.            In the

aggregate, the sentence for docket 1228-2012 was sixty-one and one half to

one hundred twenty-three years’ imprisonment. The trial court also imposed

aggregate fines totaling $320,000.00 in accordance with the mandatory

minimum sentencing provisions.     In total, between both dockets, the trial

court sentenced Adams to seventy-nine to one hundred fifty-eight years’

imprisonment.

      On March 14, 2013, Adams filed a notice of appeal.       On March 21,

2013, the trial court directed Adams to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Adams timely

filed on April 10, 2013. In response to Adams’ concise statement, the trial

court filed three separate opinions pursuant to Pa.R.A.P. 1925(a) on May 7,

May 13, and June 25, 2013. On April 2, 2014, this Court dismissed Adams’

appeal for failure to submit a brief. On April 23, 2014, Adams’ filed a motion

for leave to file an appeal nunc pro tunc, which the trial court granted on

April 25, 2014.

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        On May 6, 2014, Adams filed a second notice of appeal. On May 12,

2014, the trial court directed Adams to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Adams timely

filed on June 2, 2014. In response to Adams’ concise statement, the trial

court filed three separate opinions pursuant to Pa.R.A.P. 1925(a) on July 3,

July 15, and July 16, 2014.          Adams included six issues in his concise

statement; however, he raises only one issue in this appeal: “Whether the

trial   court’s   imposition   of   the   mandatory   minimum   sentences    was

unconstitutional in light of Alleyne v. United States?” Brief for Adams at 5

(capitalization omitted).

        In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

must be found beyond a reasonable doubt.          Alleyne, supra at 2163.     In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), we presented

the relevant portion of the Alleyne Court’s rationale as follows:

        Alleyne is an extension of the Supreme Court’s line of cases
        beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000).
        In Alleyne, the Court overruled Harris v. United States, 536
        U.S. 545 (2002), in which the Court had reached the opposite
        conclusion, explaining that there is no constitutional distinction
        between judicial fact[-]finding which raises the minimum
        sentence and that which raises the maximum sentence.

          It is impossible to dissociate the floor of a sentencing
          range from the penalty affixed to the crime. Indeed,
          criminal statutes have long specified both the floor and
          ceiling of sentence ranges, which is evidence that both
          define the legally prescribed penalty.     This historical
          practice allowed those who violated the law to know, ex
          ante, the contours of the penalty that the legislature

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        affixed to the crime—and comports with the obvious truth
        that the floor of a mandatory range is as relevant to
        wrongdoers as the ceiling.       A fact that increases a
        sentencing floor, thus, forms an essential ingredient of the
        offense.

        Moreover, it is impossible to dispute that facts increasing
        the legally prescribed floor aggravate the punishment.
        Elevating the low-end of a sentencing range heightens the
        loss of liberty associated with the crime: the defendant’s
        expected punishment has increased as a result of the
        narrowed range and the prosecution is empowered, by
        invoking the mandatory minimum, to require the judge to
        impose a higher punishment than he might wish. Why
        else would Congress link an increased mandatory
        minimum to a particular aggravating fact other than to
        heighten the consequences for that behavior? This 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.

     Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and
     citations omitted).

Miller, 102 A.3d at 994-95 (citations modified).

     In light of the constitutional pronouncement in Alleyne, we have

systematically   been   declaring   unconstitutional   each   of   Pennsylvania’s

mandatory minimum sentencing statutes that permit a trial court, rather

than a jury, to make the critical factual findings, see Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712.1,

which imposes a mandatory minimum sentence for possessing a firearm in

close proximity to narcotics, unconstitutional), and Commonwealth v.

Valentino, 101 A.3d 801 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712,

pertaining to mandatory minimum sentencing provisions associated with the


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commission of certain crimes with a firearm, unconstitutional), including the

mandatory provisions set forth in 18 Pa.C.S. § 7508. See Commonwealth

v. Cardwell, 105 A.3d 748, 751 (Pa. Super. 2014) (applying Alleyne and

recognizing that the mandatory minimum sentences associated with the

weight of narcotics possessed by a drug dealer pursuant to 18 Pa.C.S. §

7508 are unconstitutional).

       Here, the trial court applied the mandatory minimum sentencing

provisions at the sentencing hearing for the counts contained within docket

1228-2012 pursuant to 18 Pa.C.S. § 7508.         Accordingly, Adams’ sentence

was unconstitutional, and illegal, pursuant to Alleyne.6

       Because we hold that the sentences at docket 1228-2012 are illegal,

we must remand for resentencing. Before doing so, we first must determine

whether we can remand on just that docket, or if we also must remand for

resentencing on docket 355-2012.

       In its brief,7 the Commonwealth argues that Adams’ sentences should

be viewed separately, and that remand on both dockets is not necessary

because the trial court imposed the standard range of sentences on counts

____________________________________________


6
      The Commonwealth concedes that the sentence was illegal. See Brief
for Commonwealth at 14.
7
      On May 7, 2015, the Commonwealth filed an application to submit a
post-submission pleading pursuant to Pa.R.A.P 2501(a), which we accept.
Accordingly, our review of the Commonwealth’s brief and the applicable case
law reflects that submission.



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contained within docket 355-2012 and mandatory minimum sentences on

counts contained within docket 1228-2012. Brief for Commonwealth at 9.

However, when a disposition by an appellate court alters the sentencing

scheme, the entire sentence should be vacated and the matter remanded for

resentencing.     Commonwealth         v.   Goldhammer,       517    A.2d    1280

(Pa. 1986), Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002),

see   also     Commonwealth      v.   Ferguson,     107    A.3d     206,    213-14

(Pa. Super. 2015) (vacating an appellant’s entire judgment of sentence

which contained both counts subjected to mandatory minimum sentencing

provisions and counts not subjected to mandatory minimum sentencing

provisions).

      In reviewing the record in its entirety, it is clear that the trial court’s

overall general sentencing scheme was based upon mandatory minimum

sentencing provisions. Although there exist some inconsistencies regarding

individual sentences, the totality of Adams’ sentence was based upon the

applicability of, and pursuant to, mandatory minimum sentencing provisions.

In fact, at the conclusion of the sentencing hearing, the trial court explained

the reasoning behind Adams’ overall sentence:

      I believe that the overall sentence, although I don’t have it
      added up, is consistent with the gravity of the surrounding
      circumstances and the level of the drug trade that was going on,
      and I believe it is appropriate under the circumstances to run
      each of these delivery counts as a separate sentence, running
      consecutively to each other and every one.

Notes of Testimony, Sentencing Hearing, 2/12/2013, at 49-50.

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      The trial court also considered aspects of the mandatory minimum

sentencing provisions when imposing sentences subject to the standard

range of sentencing. Specifically, the trial court acknowledged the required

fines associated with the mandatory minimum sentencing provisions when

imposing standard range sentences: “I believe there’s enough fines

associated with the mandatory minimums that I’m not going to add any

fines [to the counts subject to the standard range of sentencing].”   Id. at

25. Accordingly, remanding any of Adams’ sentences would surely alter the

trial court’s overall sentencing scheme.    Thus, since we have already held

that the sentences at docket 1228-2012 are illegal, Adams’ entire sentence

should be vacated and remanded for resentencing. See Farone, supra.

      For the foregoing reasons, we must vacate the entire sentence

imposed upon Adams and remand for resentencing.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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