J-S32020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER LEWIS

                            Appellant                No. 2669 EDA 2013


             Appeal from the Judgment of Sentence August 7, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008400-2008


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                              FILED APRIL 15, 2016

        Appellant, Christopher Lewis, appeals pro se from the August 7, 2013

aggregate judgment of sentence of five to ten years’ imprisonment, imposed

after he was found guilty of one count each of possession with intent to

deliver (PWID), intentional possession of a controlled substance, criminal

conspiracy, and criminal use of a communication facility.1       After careful

review, we vacate and remand for resentencing.2

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 18 Pa.C.S.A. §§ 903(a), and
7512a), respectively.
2
 On December 22, 2015, this Court granted the Commonwealth’s motion for
an extension of time to file its brief, setting a new deadline of February 17,
2016, with which the Commonwealth did not comply. Superior Court Order,
12/22/15, at 1. On March 7, 2016, the Commonwealth filed a motion for a
(Footnote Continued Next Page)
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        We summarize the relevant procedural history of this case as follows.

On July 16, 2008, the Commonwealth filed an information, charging

Appellant with the above-mentioned offenses, as well as one count of

possession of an instrument of a crime (PIC).3         On March 11, 2011,

Appellant proceeded to a bench trial, at the conclusion of which, the trial

court found Appellant guilty of PWID, intentional possession of a controlled

substance, criminal conspiracy, and criminal use of a communication facility.

The trial court found Appellant not guilty of PIC. On June 10, 2011, the trial

court sentenced Appellant to three to eight years’ imprisonment for PWID, a

concurrent sentence of three to eight years’ imprisonment for intentional

possession of a controlled substance, and no further penalty on the

remaining charges.

        The Commonwealth filed a timely notice of appeal to this Court on

June 27, 2011. The Commonwealth argued that the trial court erred when it

did not impose the mandatory minimum sentence at Section 9712.1 of the

Sentencing Code. We agreed, and on April 23, 2013, this Court vacated the

judgment of sentence and remanded for resentencing, concluding that the

trial court erred in failing to apply the mandatory minimum sentence.
                       _______________________
(Footnote Continued)

nunc pro tunc extension of time to file its brief until March 21, 2016, which
this Court granted on March 14, 2016. Superior Court Order, 3/14/16, at 1.
Nevertheless, the Commonwealth has not filed a brief by the deadline it
requested.
3
    18 Pa.C.S.A. § 907(a).



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Commonwealth v. Lewis, 75 A.3d 560 (Pa. Super. 2013) (unpublished

memorandum at 8-9).             On remand, the trial court complied with our

mandate and sentenced Appellant, on August 7, 2013, to the mandatory

minimum sentence of five to ten years’ imprisonment for PWID, a concurrent

five to ten years’ imprisonment for intentional possession of a controlled

substance, and no further penalty on the remaining charges. On September

6, 2013, Appellant filed a timely pro se notice of appeal.4

       On appeal, Appellant raises the following four issues for our review.

              1.     Was    the    [trial c]ourt’s procedure   in
                     determining if the mandatory minimum
                     sentence applied improper as this issue must
                     go before a jury?

              2.     Did the [trial court] at re-sentencing change or
                     misapply the convictions for the imposition of
                     the mandatory minimum sentence?

              3.     Did the [Commonwealth], at trial, sentencing &
                     appeal, mislead the [trial] court as to the facts
                     of the case to apply the mandatory minimum
                     sentencing statute?

              4.     Was the evidence which was proven in court,
                     sufficient for the application of the mandatory
                     minimum sentencing statute?
____________________________________________
4
   Appellant timely filed his concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). It
appears that there is no Rule 1925(a) opinion for this appeal, as the original
trial court judge has retired. In addition, although counsel was initially
appointed for Appellant, on May 20, 2014, we remanded this case for a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
At the conclusion of the Grazier hearing, the trial court permitted
Appellant’s request to proceed pro se.



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Appellant’s Brief at 3.

       We address only Appellant’s first issue, as it is dispositive of this

appeal.    Appellant argues that the imposition of the mandatory minimum

sentence on remand violated his constitutional rights under the United

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.

2151 (2013).5 Appellant’s Brief at 10-11.

                     At the outset, we note that issues pertaining to
              Alleyne go directly to the legality of the sentence.
              Commonwealth v. Lawrence, 99 A.3d 116, 123
              (Pa. Super. 2014). With this in mind, we begin by
              noting our well-settled standard of review.          “A
              challenge to the legality of a sentence … may be
              entertained as long as the reviewing court has
              jurisdiction.” Commonwealth v. Borovichka, 18
              A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation
              omitted). It is also well-established that “[i]f no
              statutory authorization exists for a particular
              sentence, that sentence is illegal and subject to
              correction.” Commonwealth v. Rivera, 95 A.3d
              913, 915 (Pa. Super. 2014) (citation omitted). “An
              illegal sentence must be vacated.” Id. “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.”
              Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
              Super. 2014) (citations omitted).
____________________________________________
5
  We note that in the Commonwealth’s prior appeal in this case, we held that
the trial court erred in concluding the Commonwealth had not met its
statutory burden for the imposition of the mandatory minimum sentence.
Lewis, supra. At the time of our prior decision, Alleyne had not been
decided and the law at the time was that the Sixth Amendment did not
require mandatory minimum facts to be submitted to a jury and found
beyond a reasonable doubt. See generally Harris v. United States, 536
U.S. 545, 563-568 (2002).



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Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015).

     Consistent with our prior mandate, the trial court imposed mandatory

minimum sentences under Section 9712.1. N.T., 8/7/13, at 7. On June 17,

2013, 55 days after our prior memorandum in this case, the United States

Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013).

           In Alleyne, the 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.
           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.

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014).

“Although Appellant was convicted at a bench trial, under the Due Process

Clause, he was still entitled to have the extra element of the aggravated

offense found by the factfinder beyond a reasonable doubt pursuant to

Alleyne and In re Winship, 397 U.S. 358 (1970).”        Cardwell, supra at

751, citing Alleyne, supra at 2156.

     In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en

banc), this Court held that Section 9712.1 was facially unconstitutional. Id.

at 102. As Section 9712.1 is unconstitutional on its face, there is no set of

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circumstances in which the statute can be constitutionally applied. United

States v. Salerno, 481 U.S. 739, 745 (1987); accord Commonwealth v.

McKown, 79 A.3d 678, 687 (Pa. Super. 2013), appeal denied, 91 A.3d 162

(Pa.   2014).       Therefore,    because      the   trial   court   applied   a   facially

unconstitutional statute when it resentenced Appellant, the resultant

sentence was illegal.6 See Rivera, supra. As our decision upsets the trial

court’s sentencing scheme, we must vacate the entire judgment of sentence

and remand for resentencing. See generally Commonwealth v. Tanner,

61 A.3d 1043, 1048 (Pa. Super. 2013).

       Based on the foregoing, we conclude the trial court imposed an illegal

sentence when it applied Section 9712.1 to Appellant, notwithstanding our

prior judgment to the contrary. Accordingly, the trial court’s August 7, 2013

judgment of sentence is vacated, and the case is remanded for resentencing

without consideration of the mandatory minimum provision, consistent with

this memorandum.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.




____________________________________________
6
  In light of our disposition, Appellant’s remaining challenges to the
mandatory minimum sentences are moot.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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