J-S16045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT HENGST, JR.

                            Appellant                No. 1276 MDA 2014


           Appeal from the Judgment of Sentence February 24, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005609-2013


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 02, 2015

        Robert Hengst, Jr., appeals the judgment of sentence imposed

February 24, 2014, in the York County Court of Common Pleas.        The trial

court imposed a sentence of nine to 18 months’ imprisonment following

Hengst’s jury conviction of terroristic threats.1   On appeal, Hengst argues

the court imposed an illegal sentence under Alleyne v. United States, 133

U.S. 2151 (2013), when it applied the deadly weapon (used) enhancement

to his sentencing guideline range.2 For the reasons below, we affirm.

        The facts underlying Hengst’s conviction are as follows. On May 20,

2013, Hengst met with Harold Wire in a room at the Julius Motel in

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1
    18 Pa.C.S. § 2706(a)(1).
2
    204 Pa.Code § 303.10(a)(2).
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Strinestown, York County, to sell him crack cocaine. Wire was purchasing

the drugs for Shari Fogle, who was waiting in another room at the motel. In

exchange for the drugs, Wire gave Hengst Fogle’s food stamp Access card.

After Hengst left, Fogle smoked the crack cocaine and was unhappy with the

quality of the drugs.      Fogle then cancelled her Access card.      Shortly

thereafter, an angry Hengst called Wire and said he “wanted [Fogle] to make

up for what she did.” N.T., 1/24/2014, at 73. Hengst then returned to the

motel and threatened Fogle. Fogle explained that Hengst pulled up his shirt

to display a gun protruding from the top his pants, and stated to her, “you’re

lucky I don’t shoot your F’ing A[.]” Id. at 56, 74. Fogle then gave Hengst

two pieces of her jewelry “to calm him down.” Id. at 74. Hengst took the

jewelry as payment for the cocaine, and left. Soon thereafter, Fogle called

the police.

      Hengst was charged with one count of terroristic threats.      His case

proceeded to a jury trial, and, on January 24, 2014, the jury returned a

verdict of guilty.   The jury was also instructed that, if they found Hengst

guilty of terroristic threats, they were to determine whether he used a

deadly weapon in committing that crime.     Id. at 126. The jury answered

that question, “Yes.” Id. at 128.

      At the February 24, 2014, sentencing hearing, the trial court applied

the deadly weapon (used) sentencing enhancement to increase the

sentencing guideline range for Hengst’s conviction.        After reviewing a

presentence investigation report, the court imposed a standard range

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sentence of nine to 18 months’ imprisonment.3 Hengst filed a timely post-

sentence motion challenging the weight of the evidence and the court’s

application of the deadly weapon (used) rather than the deadly weapon

(possessed) sentencing enhancement.4              The court denied Hengst’s motion

on June 26, 2014, and this appeal followed.5

       The sole issue raised on appeal challenges the trial court’s application

of the deadly weapon sentencing enhancement in light of the United States

Supreme Court’s decision in Alleyne.             Hengst argues that the holding of

Alleyne is not limited to mandatory minimum sentences.                 Rather, he

contends:

       The Supreme Court’s holdings in [Alleyne and its predecessor,
       Apprendi v. New Jersey, 530 U.S. 466 (2000),] protect a
       defendant not just from increases the legislature decided to
       conveniently name “mandatories,” but from any “facts that
       increase the prescribed range of penalties to which a criminal
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3
  Hengst had a prior record score of one and an offense gravity score of
three. N.T., 2/24/2014, at 3, 6. Therefore, the standard range guideline
sentence for his conviction would be restorative sanctions to six months’
imprisonment. See 204 Pa.Code § 303.16(a). With the deadly weapon
(used) sentencing enhancement, his standard range sentence increased to
six to 12 months’ imprisonment. See 204 Pa.Code § 303.17(b); N.T.,
2/24/2014, at 6.
4
 Hengst also requested the trial court stay his sentence pending his appeal.
However, the court denied that request following a hearing on March 11,
2014.
5
  On July 28, 2014, the trial court ordered Hengst to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hengst
complied with the court’s directive, and filed a concise statement on August
18, 2014.



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        defendant is exposed.” See Alleyne, 133 S.Ct. at 2160 citing
        Apprendi, 530 U.S. at 490.

Hengst’s Brief at 9. Hengst asserts the sentencing enhancement applied in

his case required a finding that he “used a deadly weapon during the

commission of the current conviction offense,”6 which, pursuant to Alleyne,

should have been determined by the jury.         Accordingly, he argues his

sentence is illegal.7

        In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at

2155 (emphasis supplied). Applying that mandate, this Court has held that

Alleyne renders most of our mandatory minimum sentencing statutes

unconstitutional.       See Newman, supra (finding 42 Pa.C.S. § 9712.1

unconstitutional). See also Commonwealth v. Vargas, 108 A.3d 858 (Pa.

Super. 2014) (en banc) (applying Newman to 18 Pa.C.S. § 7508);

Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (applying

Newman to 18 Pa.C.S. § 6317); Commonwealth v. Valentine, 101 A.3d

801 (Pa. Super 2014) (applying Newman to 42 Pa.C.S. §§ 9712 and 9713).

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6
    204 Pa.Code § 303.10(a)(2).
7
  Although Hengst did not raise this claim in his post-sentence motion, this
Court has held that “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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       Hengst argues that “[e]nhancements to a defendant’s sentence, such

as the [deadly weapon enhancement], are not in form or function any

different than those mandatories conveniently laid out in one easy-to-read,

yet now unconstitutional, subsection.”           Hengst’s Brief at 10.   He further

asserts that, like the mandatory minimum statutes found unconstitutional in

Newman, application of the enhancement matrix is mandatory if a

defendant either possessed or used a deadly weapon during the commission

of crime, and the crime does not include the use of a deadly weapon as an

element of that offense.8        Id. at 11-12.     Therefore, Hengst contends the

enhancement requires the trial court to “increase the penalty for crimes that

do not intrinsically contain a deadly weapon element by adding the element

… through the enhancement.”              Id. at 13.    Accordingly, he states the

enhancement provisions violate Alleyne.

       Recently, a panel of this Court, in Commonwealth v. Ali, ___ A.3d

___, 2015 PA Super 45 (March 5, 2015), considered whether the application

of the school zone enhancement, set forth in the same statute as the deadly

weapon enhancement, violated Alleyne.9 In concluding that it did not, the


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8
   Section 303.10(a)(3) precludes application of the deadly weapon
enhancement to offenses which include the possession of a deadly weapon
as a statutory element of the crime. 204 Pa.Code § 303.10(a)(3)(i)-(ix).
9
 “The general rule followed in Pennsylvania is that we apply the law in effect
at the time of the appellate decision.” Commonwealth v. Parker, 644
(Footnote Continued Next Page)


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panel explained the critical difference between the mandatory minimum

statutes and the sentencing enhancement statute:

      Alleyne has no application to the sentencing enhancements at
      issue in this case. The parameters of Alleyne are limited to the
      imposition of mandatory minimum sentences, i.e., where a
      legislature has prescribed a mandatory baseline sentence that a
      trial court must apply if certain conditions are met.       The
      sentencing enhancements at issue impose no such floor.
      Rather, the enhancements only direct a sentencing court
      to consider a different range of potential minimum
      sentences, while preserving a trial court’s discretion to
      fashion an individual sentence. By their very character,
      sentencing enhancements do not share the attributes of a
      mandatory minimum sentence that the Supreme Court held to
      be elements of the offense that must be submitted to a jury.
      The enhancements do not bind a trial court to any
      particular sentencing floor, nor do they compel a trial
      court in any given case to impose a sentence higher than
      the court believes is warranted. They require only that a
      court consider a higher range of possible minimum
      sentences. Even then, the trial court need not sentence within
      that range; the court only must consider it. Thus, even though
      the triggering facts must be found by the judge and not the
      jury—which is one of the elements of an Apprendi or Alleyne
      analysis—the enhancements that the trial court applied in this
      case are not unconstitutional under Alleyne.

      … The enhancements do not bind the trial court to impose any
      particular sentence, nor do they compel the court to sentence
      within the specified range. Indeed, it is well-settled that the
      sentencing    guidelines   ultimately    are   only   advisory.
      Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002).
      Thus, Alleyne has no application to the enhancements.




                       _______________________
(Footnote Continued)

A.2d 1245, 1249 (Pa. Super. 1994), appeal denied, 658 A.3d 793 (Pa.
1995).




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Id. at *14-*15 (emphasis supplied).          See also Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (noting, sua

sponte that the trial court’s application of the deadly weapon enhancement

did not violate Alleyne; “If the enhancement applies, the sentencing court is

required to raise the standard guideline range; however, the court retains

the discretion to sentence outside the guideline range.”), appeal denied, 104

A.3d 1 (Pa. 2014).

      We find the same reasoning applies to the application of the deadly

weapon enhancement in the present case.           The enhancement simply

increased the “range of potential minimum sentences” the trial court could

impose. Ali, supra, at *14. The enhancement did not mandate a particular

sentence, and the court, at all times, retained the discretion to sentence

Hengst below the guidelines range. Accordingly, we conclude, like the Court

in Ali, that the trial court’s application of the deadly weapon enhancement to

Hengst’s sentencing guideline range did not violate Alleyne.       Therefore,

Hengst’s only issue on appeal fails.

      Judgment of sentence affirmed.

   Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015

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