J-A30016-14


                                  2014 PA Super 261

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CASEEN FENNELL

                            Appellant                 No. 2610 EDA 2013


            Appeal from the Judgment of Sentence August 12, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013779-2012


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

OPINION BY MUNDY, J.:                            FILED NOVEMBER 21, 2014

        Appellant, Caseen Fennell, appeals from August 12, 2013 aggregate

judgment of sentence of three to six years’ imprisonment after he was

convicted of one count each of possession with intent to deliver (PWID) and

intentional possession of a controlled substance.1    After careful review, we

vacate and remand for resentencing.

        We summarize the relevant factual and procedural history of this case

as follows. On November 29, 2012, the Commonwealth filed an information,

charging Appellant with the above-mentioned offenses.       On May 1, 2013,

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

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
J-A30016-14


court found Appellant guilty of the same.           On August 12, 2013, the trial

court sentenced Appellant to three to six years’ imprisonment for PWID, and

no further penalty for the possession charge, as the counts merged for the

purposes of sentencing. Relevant to this appeal, Appellant received a three-

year mandatory minimum sentence on the basis of the weight of the heroin,

pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i).           On August 23, 2013, Appellant

filed an untimely post-sentence motion, but the trial court did not take any

action. On September 11, 2013, Appellant filed a timely notice of appeal. 2

        On appeal, Appellant raises the following issue for our review.

              Did not the [trial] court err in applying certain
              provisions of the mandatory minimum sentencing
              statute at 18 Pa.C.S. § 7508 to [Appellant]’s case,
              and thereby sentencing [Appellant] to a term of
              incarceration of 3 to 6 years, in that portions of
              [Section] 7508 are facially unconstitutional pursuant
              to Alleyne v. United States, 133 S. Ct. 2151
              (2013), and are non-severable from the remaining
              portions of the statute?

Appellant’s Brief at 3.

        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.”


____________________________________________
2
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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J-A30016-14


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).

      In this case, Appellant was sentenced under a mandatory minimum

statute at Section 7508, which provides in relevant part as follows.

            § 7508.      Drug    trafficking   sentencing     and
            penalties

            (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:

                         (i) when the aggregate weight of the
                         compound or mixture containing the
                         heroin involved is at least 1.0 gram but
                         less than 5.0 grams the sentence shall
                         be a mandatory minimum term of two

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J-A30016-14


                       years in prison and a fine of $5,000 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 three years in prison
                       and $10,000 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.

     This Court recently explained Alleyne’s impact on the imposition of

mandatory minimum sentences as follows.

           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

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J-A30016-14


          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 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, supra at 2160-2161 (internal quotation marks
          and citations omitted).




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J-A30016-14


Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (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).                Alleyne,

supra at 2156.

      This Court has recently noted that Section 7508(a)(2)(ii) cannot be

constitutionally applied in light of Alleyne, resulting in an illegal sentence.

See Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa. Super. 2014)

(resolving an as-applied challenge to Section 7508(a)(2)(ii) in Thompson’s

favor in light of Alleyne and remanding for resentencing). However, in this

case, Appellant argues that Section 7508 is facially unconstitutional in its

entirety   and   its   subsections    cannot   be   severed   from   one   another.

Appellant’s Brief at 13-22.          The Commonwealth counters that because

Appellant stipulated to the drug weight for the purposes of trial, any error

regarding Alleyne was rendered harmless. Commonwealth’s Brief at 10-12.

Both parties cite to this Court’s recent decision in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).

      In Newman, this Court confronted the same type of challenge to the

mandatory minimum found at Section 9712.1, regarding the distance

between drugs and guns. Id. at 91. Section 9712.1 has the same format

as Section 7508 in that one subsection contains the added element of the


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J-A30016-14


aggravated offense, and another subsection states that the elements shall

be found by the trial court by a preponderance of the evidence.      See id.,

quoting   42    Pa.C.S.A.    §§   9712.1(a),    9712.1(c);    18     Pa.C.S.A.

§§ 7508(a)(7)(i), 7508(b).

     The Newman Court first concluded that the defendant’s sentence was

illegal in light of Alleyne and required this Court to vacate and remand for

resentencing. Id. at 98. However, this Court noted that Alleyne issues are

subject to harmless error analysis, but nevertheless concluded that the

Alleyne issue in Newman was not harmless. Id. at 98-100.

                 We cannot find that the error here was
           harmless, because the evidence as to the element of
           “in   close     proximity”  was      not   necessarily
           overwhelming. As previously noted, the drug
           contraband was found in a bathroom. The firearm
           was found under a mattress in a bedroom across the
           hallway, and the actual distance between the
           contraband and the firearm was six to eight feet.
           Recently, our supreme court discussed at length the
           meaning of “in close proximity” as it is used in
           Section 9712.1. See Commonwealth v. Hanson,
           82 A.3d 1023 (Pa. 2013), generally. The Hanson
           court noted that the concept of “in close proximity” is
           inherently imprecise and observed the differing
           conclusions as to its meaning both among the courts
           of this Commonwealth and among the courts of
           other jurisdictions. Hanson, 82 A.3d at 1037–1038,
           and otherwise, generally. If learned jurists cannot
           decide with precision what constitutes “in close
           proximity,” we cannot say with finality that a panel
           of lay jurors would undoubtedly conclude from the
           evidence here that the firearm was “in close
           proximity” to the drug contraband.




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J-A30016-14


Id. at 99-100. Finally, this Court rejected the Commonwealth’s argument

that if the error was not harmless, the appropriate remedy would be to

remand to the trial court to empanel a second sentencing jury. Specifically,

in rejecting this argument, the Newman Court concluded that Section

9712.1 in its entirety must be struck down as unconstitutional in light of

Alleyne, concluding that its subsections were not severable.3

                    The Commonwealth’s suggestion that we
              remand for a sentencing jury would require this
              court to manufacture whole cloth a replacement
              enforcement mechanism for Section 9712.1; in other
              words, the Commonwealth is asking us to legislate.
              We recognize that in the prosecution of capital cases
              in Pennsylvania, there is a similar, bifurcated process
              where the jury first determines guilt in the trial
              proceeding (the guilt phase) and then weighs
              aggravating and mitigating factors in the sentencing
              proceeding (the penalty phase).          However, this
              mechanism was created by the General Assembly
              and is enshrined in our statutes at 42 Pa.C.S.A. §
              9711. We find that it is manifestly the province of
              the General Assembly to determine what new
              procedures must be created in order to impose
              mandatory minimum sentences in Pennsylvania
              following Alleyne. We cannot do so.




____________________________________________
3
  The author in this case concurred in the result in Newman, disagreeing
with the majority that the subsections of Section 9712.1 could not be
severed, concluding that no special “mechanism” was required to allow a
jury to find the element of the aggravated offense beyond a reasonable
doubt. Id. at 105 (Mundy, J., concurring). The author continues to believe
Newman was wrongly decided on that point; however, it is binding on this
Court and must be applied in a principled manner in all future cases unless
reversed by our Supreme Court.



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J-A30016-14


Id. at 102.4

       In the case sub judice, during trial, Appellant stipulated to certain

laboratory reports.      N.T., 5/1/13, at 59-60.           Relevant to this appeal, one

laboratory report was for 55 clear packets of a substance, the packets were

labeled “Magnet,” and the substance was an “off-white powder.”                       N.T.,

5/1/13, Commonwealth’s Exhibit C-4, at 1.                   The report noted that one

packet was analyzed as containing heroin and weighed 37 milligrams. Id.

The report also noted that the “packaging and material … [were] consistent

in appearance.”      Id.   Therefore, the Commonwealth argues, and the trial

court concluded, that the remaining 54 packets contained at least 37

milligrams as well, which in the aggregate, would bring the total weight to

2.035 grams. Commonwealth’s Brief at 5 n.2; Trial Court Opinion, 1/16/14,

at 5-6.   Based on this, the Commonwealth argues that any Alleyne error

was harmless. Commonwealth’s Brief at 8.

       However,     we     are   mindful       of   this   Court’s   recent   decision   in

Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super.

2014).     In Valentine, the Commonwealth sought to have a mandatory

minimum sentence imposed against the defendant. The trial court allowed

the Commonwealth to amend the information to include the necessary


____________________________________________
4
  We note the Commonwealth has filed a petition for allowance of appeal
with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the
date of this decision, it is still pending.



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J-A30016-14


additional elements required by Alleyne to be found by the jury beyond a

reasonable doubt. Id. at *1. The two questions were submitted to the jury,

and it found the additional elements beyond a reasonable doubt. Id. As a

result, the trial court imposed the appropriate mandatory minimum

sentences pursuant to the appropriate statutes. Id.

     Although the trial court seemingly followed Alleyne’s requirements,

the Valentine Court held that the trial court was not permitted to allow the

jury to resolve the mandatory minimum questions absent legislative action

in accordance with Newman.

                 Here, the trial court permitted the jury, on the
           verdict slip, to determine beyond a reasonable doubt
           whether Appellant possessed a firearm that placed
           the victim in fear of immediate serious bodily injury
           in the course of committing a theft for purposes of
           the mandatory minimum sentencing provisions of 42
           Pa.C.S.A. § 9712(a), and whether the crime occurred
           in whole or in part at or near public transportation,
           for purposes of the mandatory minimum sentencing
           provisions of 42 Pa.C.S.A. § 9713(a).        The jury
           responded “yes” to both questions. In presenting
           those questions to the jury, however, we conclude,
           in accordance with Newman, that the trial court
           performed an impermissible legislative function by
           creating a new procedure in an effort to impose the
           mandatory minimum sentences in compliance with
           Alleyne.

                 The trial court erroneously presupposed that
           only Subsections (c) of both 9712 and 9713 (which
           permit a trial judge to enhance the sentence based
           on a preponderance of the evidence standard) were
           unconstitutional    under    Alleyne,    and     that
           Subsections (a) of 9712 and 9713 survived
           constitutional muster.     By asking the jury to
           determine whether the factual prerequisites set forth

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J-A30016-14


              in § 9712(a) and § 9713(a) had been met, the trial
              court effectively determined that the unconstitutional
              provisions of § 9712(c) and § 9713(c) were
              severable. Our decision in Newman however holds
              that the unconstitutional provisions of § 9712(c) and
              § 9713(c) are not severable but “essentially and
              inseparably connected” and that the statutes are
              therefore unconstitutional as a whole. Id. at 13–14.
              (“If Subsection (a) is the predicate arm … then
              Subsection (c) is the enforcement arm. Without
              Subsection (c), there is no mechanism in place to
              determine whether the predicate of Subsection (a)
              has been met.”).

                    Moreover, Newman makes clear that “it is
              manifestly the province of the General Assembly to
              determine what new procedures must be created in
              order to impose mandatory minimum sentences in
              Pennsylvania following Alleyne.” Newman at 14.
              Therefore, the trial court lacked the authority to
              allow the jury to determine the factual predicates of
              §§ 9712 and 9713.        See Newman at 14–15
              (recognizing that several trial courts of this
              Commonwealth have found Section 9712.1 as a
              whole to be no longer workable without legislative
              guidance).

Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence

and remanded for resentencing, without the applicable mandatory minimum

sentences.5 Id. at *9.


____________________________________________
5
  As noted above, Newman did acknowledge that Alleyne errors, like those
under Apprendi v. New Jersey, 530 U.S. 466 (2000), are subject to
harmless error analysis.    See generally Newman, supra at 98-100.
However, if Newman’s overriding conclusion is, as Valentine suggests, that
mandatory minimum statutes in Pennsylvania must be stricken in their
entirety as facially unconstitutional, any discussion of harmless error is
rendered moot.      This is because, once the Court concludes that the
subsections cannot be severed and must all be struck down, there is no
(Footnote Continued Next Page)


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J-A30016-14


      In the instant case, as noted above, Appellant stipulated to laboratory

reports that, at a minimum, suggest that the total weight of the heroin was

2.035 grams. N.T., 5/1/13, at 60-62, Commonwealth’s Exhibit C-4. As a

result, the trial court concluded that the Commonwealth did prove this

element to the trial court beyond a reasonable doubt, as required by

Alleyne and Winship. Trial Court Opinion, 1/16/14, at 5-6. However, the

trial court’s opinion reveals that this conclusion was solely premised on its

belief that Section 7508(b), which permits the trial court to find the

necessary elements by a preponderance of the evidence, was severable from

the rest of the statute.        Id. at 3-5.      Pursuant to this Court’s decision in

Newman, this conclusion was not correct.

      Furthermore, we see no meaningful difference, for the purposes of

Newman and Valentine between submitting the element to the jury and

accepting a stipulation from a defendant.            They both have the purpose of

finding a method to impose a mandatory minimum sentence outside the

statutory framework, but consistent with Alleyne. However, both Newman

and Valentine unequivocally state that creating a new procedure in an

effort to impose a mandatory minimum sentence is solely within the

province of the legislature.          See Newman, supra; Valentine, supra.
                       _______________________
(Footnote Continued)

statutorily authorized sentence upon which a harmless error analysis may be
applied. See, e.g., Rivera, supra (stating, “[i]f no statutory authorization
exists for a particular sentence, that sentence is illegal and subject to
correction[]”) (citation omitted).



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J-A30016-14


While submission to a jury is a more formal and involved procedure, we

decline to fracture Newman and Valentine further by concluding that when

read together, they only prohibit formal mandatory minimum procedures,

but permit informal ones. Based on these considerations, we conclude that

the trial court erred in imposing the mandatory minimum sentence in this

case. As a result, Appellant is entitled to relief.

      Based on the foregoing, we are constrained to conclude the trial court

erred in imposing the mandatory minimum sentence in light of this Court’s

recent decisions in Newman and Valentine. Accordingly, the trial court’s

August 12, 2013 judgment of sentence is vacated, and the case is remanded

for resentencing, without the mandatory minimum, consistent with this

opinion.

      Judgment of sentence vacated.            Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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