J-S84019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRELL JONES                              :
                                               :
                       Appellant               :   No. 2581 EDA 2017

            Appeal from the Judgment of Sentence August 29, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014589-2012


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 22, 2019

       Terrell Jones appeals nunc pro tunc from the judgment of sentence

imposed on August 29, 2013, in the Court of Common Pleas of Philadelphia

County.     Jones seeks relief from the judgment of sentence to serve an

aggregate term of six and one-half to 13 years’ imprisonment, followed by

four years of probation, after he entered an open plea to robbery – threaten

serious bodily injury, conspiracy, burglary, and carrying a firearm without a

license.1 Jones challenges both the legality and discretionary aspects of his

sentence. Based upon the following, we vacate the judgment of sentence and

remand for resentencing.




____________________________________________


1  18 Pa.C.S. §§ 3701(a)(1)(ii), 3502(c)(1), 903(c), and 6101(a)(1),
respectively.
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       The convictions in this case stem from Jones’s robbery of the victim in

her home, at gunpoint, with a co-conspirator. The procedural background of

this case has been summarized by the trial court, as follows:

             On November 7, 2012, Terrell Jones was arrested for
       numerous charges including Robbery - Threaten Immediate
       Serious Injury, Burglary, Conspiracy to Commit Robbery, and
       VUFA- Firearm Not to be Carried Without a License. On December
       11, 2012, Mr. Jones appeared for a preliminary hearing before the
       Honorable Charles Hayden. Mr. Jones was held for court on the
       charges.

             On July 2, 2013, Mr. Jones entered an open guilty plea to
       the charges of conspiracy to commit robbery, robbery that
       threatened immediate serious injury, burglary, and carrying a
       firearm without a license before the Honorable Sean F. Kennedy.
       On August 28, 2013, the Honorable Sean F. Kennedy sentenced
       Mr. Jones to be confined for a period of five to ten years for the
       robbery offense; one year and six months to three years
       confinement for the burglary consecutive to the robbery; one year
       and six months to three years confinement for the conspiracy
       concurrent with the burglary; and four years probation
       consecutive to the confinement for the carrying a firearm without
       a license. On September 9, 2013, Mr. Jones filed a Motion for
       Reconsideration of Sentence. Following a hearing, the Motion for
       Reconsideration of Sentence was denied on October 3, 2013.

              On June 30, 2014, Mr. Jones filed a timely pro se PCRA
       petition. On July 20, 2017, following a hearing, the Defendant’s
       appellate rights were restored nunc pro tunc. On August 11, 2017,
       [Jones] filed a timely Notice of Appeal to the Pennsylvania
       Superior Court.

Trial Court Opinion, 2/27/2018, at 4 (record citations omitted).2

       We begin with Jones’s challenge to the legality of the sentence. As the

Commonwealth concedes, the mandatory minimum sentencing provision for
____________________________________________


2We add that Jones timely complied with the order of the trial court to file a
Pa.R.A.P. 1925(b) concise statement.

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offenses committed with firearms, 42 Pa.C.S. § 9712, which was applied to

Jones’s robbery conviction, has been declared unconstitutional and illegal in

light of Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (holding that

facts that increase mandatory minimum sentences must be submitted to the

jury and must be found beyond a reasonable doubt). In Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super. 2014), this Court held Section 9712

unconstitutional in light of Alleyne.            Therefore, the mandatory minimum

sentence imposed on Jones’s robbery conviction is illegal.

       Both the Commonwealth and the trial court take the position Jones is

entitled to be resentenced on his robbery conviction only.             However, as

vacating Jones’s sentence for robbery may upset the overall sentencing

scheme as to Jones’s other convictions, we conclude it is proper for this Court

to   vacate    the   sentence     in   its     entirety.   See   Commonwealth    v.

Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986) (stating generally if appellate

court disturbs overall sentencing scheme, then remand for resentencing is

proper). Accordingly, we vacate the judgment of sentence and remand for

resentencing.3

       Judgment of sentence vacated.                  Case remanded.    Jurisdiction

relinquished.



____________________________________________


3 In light of our disposition, we decline to address Jones’s claim regarding the
discretionary aspects of his sentence.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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