J-S41013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TRAVIS LEE KITCHEN,

                            Appellant               No. 1626 MDA 2014


         Appeal from the Judgment of Sentence entered April 17, 2014,
              in the Court of Common Pleas of Bradford County,
             Criminal Division, at No(s): CP-08-CR-0000499-2013



BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED JULY 06, 2015

        Travis Lee Kitchen (“Appellant”) appeals from the judgment of

sentence imposed following his conviction for delivery of a controlled

substance.1 For the following reasons, we vacate the judgment of sentence

and remand for re-sentencing.

        The pertinent facts and procedural history are as follows: On October

10, 2012, Pennsylvania State Trooper Michael R. Adams received a call from

a reliable confidential informant, who informed the officer that Appellant was

selling Percocet pills. Affidavit of Probable Cause, 5/14/13. The confidential

informant arranged a meeting with Appellant to purchase 30 Percocet pills

____________________________________________


1
    35 P.S. § 780-113(a)(30).


*Retired Senior Judge assigned to the Superior Court.
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and prior to the meeting, Trooper Adams searched the confidential informant

and his vehicle, and provided him with $210.00 in pre-recorded bills.      Id.

The confidential informant then drove to meet with Appellant at a pre-

arranged location, while Trooper Adams conducted surveillance nearby. Id.

Trooper Adams observed Appellant exit his vehicle, enter the passenger side

door of the confidential informant’s vehicle, and exit a short time thereafter.

Id. The confidential informant then met with Trooper Adams and provided

him with 30 white pills later determined to be Percocet. Id.

      Appellant was subsequently arrested and charged with delivery of a

controlled substance, possession of a controlled substance, and criminal use

of a communication facility. On February 26, 2014, Appellant pled guilty to

one count of delivery of a controlled substance, and the remaining charges

against him were dismissed.

      On April 17, 2014, the trial court sentenced Appellant to 2 to 4 years

of imprisonment. Appellant filed a timely pro se motion for reconsideration

of sentence, which the trial court denied on September 2, 2014.             On

September 24, 2014, Appellant filed a notice of appeal and the trial court

directed him to comply with Pa.R.A.P. 1925(b).       After being granted two

extensions by the trial court, Appellant filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 30,

2014. The trial court did not file an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

      I.    Was 18 Pa.C.S.A. § 7508 applied to the case at issue?

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      II.    Is 18 Pa.C.S.A § 7508 unconstitutional?

      III.   Was [Appellant] prejudiced by the application of 18
             Pa.C.S.A. § 7508 to his case?

      IV.    May [Appellant] now raise the illegality of the sentence?

Appellant’s Brief at 4.

      Appellant’s issues are interrelated.      Therefore, we address them

together. Appellant argues that his sentence imposed under the mandatory

minimum sentencing provisions of 18 Pa.C.S.A. § 7508 was unconstitutional

pursuant to Alleyne v. United States, 133 S. Ct. 2151, 2153, 186 L. Ed.

2d 314 (2013), which held that any fact increasing the mandatory minimum

sentence must be determined by a jury beyond a reasonable doubt.

Appellant asserts that at the time of entry of his guilty plea, and at the time

of sentencing, the trial court and the Commonwealth made it clear that he

was to be sentenced in conformity with the mandatory minimum provisions

of 18 Pa.C.S.A. § 7508.     Appellant contends that pursuant to Alleyne, §

7508 has since been held to be unconstitutional by this Court for

impermissibly allowing a trial court to increase the prescribed range of

penalties to which a criminal defendant is exposed, under a preponderance

of the evidence standard, rather than submitting the question to a jury to

determine beyond a reasonable doubt.

      In support of his claim that he was illegally sentenced under the

mandatory minimum sentencing provisions of § 7508, Appellant directs us to



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statements made by his counsel at the sentencing hearing, informing the

trial Court that “there is an applicable mandatory minimum sentencing

statute which requires in this case that it be two (2) years, that it be at least

two (2) years, and the agreement is two (2) years [and] the guidelines

[don’t] have any real application here because there’s a mandatory

sentence, and we’ve agreed to go under the mandatory basically by saying

... the amount of grams was such that it would be a two (2) year ...

mandatory.”     N.T., 4/17/14, at 2.     Additionally, Appellant refers to the

statement of the trial court at sentencing, when the trial court commented

that Appellant’s “sentence ... meets the mandatory minimum.”          Id. at 12.

See also N.T., 2/26/14, at 2, 21, 24.       Appellant argues that because the

mandatory minimum sentencing provisions of § 7508 have been declared

unconstitutional under Alleyne, his sentence was illegal and should be

vacated. We agree.

      18 Pa.C.S.A § 7508 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:
                                    ...

       (2)   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 classified in Schedule I or Schedule
             II under section 4 of that act and is a narcotic drug shall,
             upon conviction, be sentenced to a mandatory minimum


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            term of imprisonment and a fine as set forth in this
            subsection:


            (i)      when the aggregate weight of the compound or
                     mixture containing the substance involved is at
                     least 2.0 grams and less than ten grams; two
                     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: 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.

      Very recently, the Pennsylvania Supreme Court recently explained

Alleyne's impact on the imposition of mandatory minimum sentences as

follows:   “Alleyne ... held that any fact which increases a mandatory

minimum sentence is an ‘element’ of the crime, and not a ‘sentencing

factor,’ and, thus, must be submitted to the jury pursuant to the Sixth

Amendment to the United States Constitution.”            Commonwealth v.

Hopkins, slip. op. at 4, 14 (Pa. June 15, 2015).       “As an element of the

offense, the factual determination must be specifically alleged in the

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charging document, and the defendant has a right to have that fact

determined by a jury beyond a reasonable doubt.” Id.

      In Hopkins, our Supreme Court, analyzing the constitutionality and

severability of 18 Pa.C.S.A § 6317, explained that the unconstitutional

provisions of a mandatory minimum sentencing statute that allow facts that

increase the mandatory minimum sentence to be decided by a judge under a

preponderance of the evidence standard, are not severable because “the

unoffending provisions of the statute ... standing alone, are incomplete and

incapable of being executed in accordance with legislative intent.” Hopkins

at 19. In addition, the Supreme Court reasoned that it is not the function of

the appellate courts to “judicially usurp the legislative function and rewrite”

a statute to alter its unconstitutional nature to bring it into conformity with

the requirement of Alleyne. Hopkins at 23. Thus, the offending stattue

was deemed unconstitutional in its entirety.

      In Commonwealth v. Fennell, 105 A.3d 13, 15-16 (Pa. Super.

2014), this Court employed an analysis similar to that of Hopkins to explain

that, pursuant to Alleyne, § 7508 was unconstitutional and unseverable,

and that mandatory minimum sentences imposed pursuant to § 7508 were

therefore illegal.   See also Commonwealth v. Thompson, 93 A.3d 478

(Pa. Super. 2014).

      Moreover, the Court in Fennell concluded that even if the parties

stipulated to the drug’s weight, the sentence was still illegal because it was


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imposed under an unconstitutional statute, and it was not the function of the

appellate   courts   to   alter   or   rewrite   the   statute   to   circumvent   its

unconstitutional provisions by accepting stipulations in an effort to comply

with Alleyne. Fennell, 105 A.3d at 20. Rather, we concluded in Fennell

that § 7508 was unconstitutional as a whole, and that any mandatory

minimum imposed pursuant to the statute was illegal. Commonwealth v.

Mosley, 2015 PA Super 88 (Apr. 20, 2015), citing Fennell, supra.

     Here, the fact that Appellant entered into a negotiated plea, effectively

stipulating to possession of two to ten grams of Percocet, does not remedy

the unconstitutionality of § 7508 under Alleyne, which would require the

jury to determine the weight of the drugs beyond a reasonable doubt. To

uphold the imposition of a mandatory minimum sentence pursuant to section

§ 7508 on the basis that Appellant entered a negotiated guilty plea would

impermissibly “creat[e] a new procedure in an effort to impose a mandatory

minimum sentence, [which] is solely in the province of the legislature.”

Fennell, 105 A.3d at 20.          “[W]e will not judicially usurp the legislative

function and rewrite [the statute] or create a substantive offense which the

General Assembly clearly did not desire.         Rather, we leave it to our sister

branch for an appropriate statutory response to the United States Supreme

Court’s decision in Alleyne.” Hopkins, at 23-24.

     For the foregoing reasons, we are constrained to vacate Appellant’s

judgment of sentence and remand for re-sentencing.


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      Judgment of sentence vacated.   Case remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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