J-S11026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CONDE LUIS SANTIAGO

                            Appellant              No. 934 MDA 2014


           Appeal from the Judgment of Sentence January 22, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005050-2012


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

MEMORANDUM BY OTT, J.:                         FILED FEBRUARY 18, 2015

       Conde Luis Santiago appeals the judgment of sentence imposed

January 22, 2014,1 in the Lancaster County Court of Common Pleas.      The

trial court imposed a mandatory minimum sentence2 of six and one-half to

15 years’ imprisonment, following Santiago’s jury conviction of possession


____________________________________________


1
  We note that, on his notice of appeal, Santiago purported to appeal the
May 1, 2014, order of the trial court denying his post-sentence motion.
However, an appeal in a criminal matter lies from the judgment of sentence,
made final following the denial of post-sentence motions.              See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003)
(en banc). Therefore, we have corrected the caption accordingly.
2
 See 42 Pa.C.S. § 9712.1 (mandatory minimum five years’ incarceration for
possession of a firearm while selling controlled substances); 18 Pa.C.S. §
7508(a)(7)(ii) (mandatory minimum three years’ incarceration for
possession of five to 50 grams of heroin).
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with intent to deliver (“PWID”) heroin.3 On appeal, Santiago contends the

sentence imposed is illegal in light of the United States Supreme Court’s

decision in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).         We

agree.

        The charges against Santiago arose following the execution of a search

warrant at a storage unit leased by Santiago in Lancaster, Pennsylvania.

The search uncovered 675 bags of heroin and a stolen .40 caliber handgun.

Santiago was charged with PWID, receiving stolen property (“RSP”),4 and

persons not to possess firearms.5 He filed a pretrial motion to suppress the

evidence recovered during the execution of the warrant, which was denied

prior to the start of trial. On October 25, 2013, a jury returned a verdict of

guilty on the sole charge presented to them, PWID,6 specifically finding (1)

the weight of the heroin was 15.8 grams, and (2) Santiago was “in physical

possession or control of a firearm … in close proximity to the controlled

substance.” Jury Verdict, 10/25/2013 (footnote omitted). On January 22,
____________________________________________


3
    35 P.S. § 780-113(a)(30).
4
    18 Pa.C.S. § 3925.
5
    18 Pa.C.S. § 6105(a).
6
  The charge of RSP was withdrawn prior to trial, and the firearms charge
was severed from the drug charge. On February 7, 2014, Santiago entered
a plea of nolo contendere to the firearms charge, and was sentenced to a
term of three to six years’ imprisonment, to be served concurrently to the
sentence on the PWID charge.




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2014, the trial court imposed a mandatory minimum sentence of six and

one-half to 15 years’ imprisonment. Santiago filed a timely post sentence

motion7 to modify his sentence, challenging both the legality and the

discretionary aspects of his sentence. The trial court denied Santiago’s post-

sentence motion on May 1, 2014, and this timely appeal follows.8

       Santiago’s sole issue on appeal challenges the legality of his sentence.

He argues the trial court’s imposition of the mandatory minimum sentences

set forth in both 42 Pa.C.S. § 9712.1(a) and 18 Pa.C.S. § 75089 is

____________________________________________


7
   Santiago filed a post-sentence motion on February 4, 2014, thirteen days
after the trial court imposed sentence on January 22, 2014. A post-sentence
motion must filed within 10 days after the imposition of sentence to toll the
appeal period. Pa.R.Crim.P. 720; Dreves, supra. On July 18, 2014, this
Court issued a show cause order on Santiago to explain why his appeal
should not be quashed as untimely. Santiago filed a reply, explaining that
the 10th day after imposition of his sentence, February 1, 2014, fell on a
Saturday, and that the next business day, Monday, February 3, 2014, the
Lancaster County Court of Common Pleas was closed due to inclement
weather. See 1 Pa.C.S. § 1908. Therefore, the first business day he could
file the motion was on Tuesday, February 4, 2014. Santiago attached to his
reply a letter from the Lancaster County Clerk of Courts confirming that the
courthouse was closed on Monday, February 3, 2014, due to inclement
weather. Therefore, we find Santiago’s post-sentence motion was timely
filed on February 4, 2014, and tolled the appeal period until after the trial
court disposed of the motion on May 1, 2014.
8
  On June 24, 2014, the trial court ordered Santiago to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Santiago complied with the trial court’s directive, and filed a concise
statement on July 15, 2014.
9
  We note that a trial court may impose both the mandatory minimum set
forth in Section 7508 (weight of drugs) and the mandatory minimum set
forth in Section 9712.1 (firearm in close proximity) to one charge of PWID so
(Footnote Continued Next Page)


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unconstitutional pursuant to the United States Supreme Court’s decision in

Alleyne.    The trial court, however, opined that the mandatory minimum

terms were properly imposed because the facts that increased Santiago’s

minimum sentence – i.e., the weight of the heroin and Santiago’s possession

of a firearm in close proximity to the heroin - were submitted to the jury as

questions on the verdict sheet, and determined by the jury beyond a

reasonable doubt. See Trial Court Opinion, 8/7/2014, at 3. See also Jury

Verdict, 10/25/2013.

      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,

sitting en banc, concluded that Alleyne rendered the mandatory minimum

sentencing provision of 42 Pa.C.S. § 9712.1 unconstitutional.            See

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

      The Newman Court noted that Subsection (c) of that statute

permitted the trial court to determine at sentencing whether the elements

                       _______________________
(Footnote Continued)

long as “the combined minimum sentence [does] not exceed the statutory
maximum sentence of imprisonment allowable under The Controlled
Substance, Drug, Device and Cosmetic Act.” 42 Pa.C.S. § 9712.1(b). See
Commonwealth v. Hopkins, 67 A.3d 817, 822 (Pa. Super. 2013) appeal
denied, 78 A.3d 1090 (Pa. 2013).




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necessary to increase the mandatory minimum sentence, i.e., the defendant

possessed or was in close proximity to a firearm while selling drugs, were

proven by a preponderance of the evidence.              See 42 Pa.C.S. §

9712.1(c).   However, under the reasoning of Alleyne, the en banc Court

found that “Section 9712.1 can no longer pass constitutional muster.”

Newman, supra, 99 A.3d at 98. The Court opined:

      [Section 9712.1(c)] permits the trial court, as opposed to the
      jury, to increase a defendant’s minimum sentence based upon a
      preponderance of the evidence that the defendant was dealing
      drugs and possessed a firearm, or that a firearm was in close
      proximity to the drugs. Under Alleyne, the possession of the
      firearm must be pleaded in the indictment, and must be found
      by the jury beyond a reasonable doubt before the defendant
      may be subjected to an increase in the minimum sentence. As
      that is not the case instantly, we are constrained to vacate
      appellant’s sentence and remand for resentencing without regard
      for any mandatory minimum sentence prescribed by Section
      9712.1.

Id. at 98.

      Furthermore, the Newman Court rejected the Commonwealth’s

suggestion that the illegality of the statute could be remedied upon remand,

by empanelling a jury to consider the factual questions necessary to impose

the mandatory minimum. The Court held:

      We find that Subsections (a) and (c) of Section 9712.1 are
      essentially and inseparably connected.     Following Alleyne,
      Subsection (a) must be regarded as the elements of the
      aggravated crime of possessing a firearm while trafficking drugs.
      If Subsection (a) is the predicate arm of Section 9712.1, 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.



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Id. at 101. The Court concluded “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.” Id. at 102.

     Following   the   dictates   of   Newman,    an   en   banc   panel   in

Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed

December 31, 2014) (en banc), concluded that the mandatory minimum

provisions set forth in Section 7508, which are structured in the same

manner as Section 9712.1, were also constitutionally infirm. Id. at *17.

     We recognize that the trial court, in the present case, attempted to

comply with the dictates of Newman by requesting the jury to determine

beyond a reasonable doubt whether the facts supported imposition of the

mandatory minimum sentences. See Jury Verdict, 10/25/2013. However,

this Court rejected such a procedure in Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super 2014).

     In Valentine, the trial court permitted the Commonwealth to amend

the criminal information to include the allegations that the defendant

committed a crime of violence (1) while visibly possessing a firearm and (2)

in or near public transportation, facts necessary to impose mandatory

minimum sentences under 42 Pa.C.S. §§ 9712 and 9713.            Id. at 804.

Furthermore, similar to the present case, the court then included questions

on the verdict sheet which allowed the jury too determine beyond a

reasonable doubt whether the facts supported imposition of the mandatory

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minimum.      Id. at 811.    In finding that the trial court performed an

“impermissible legislative function,” the Valentine Court opined:

      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 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.

      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.”
      Therefore, the trial court lacked the authority to allow the jury to
      determine the factual predicates of §§ 9712 and 9713.

Id. at 811-812 (internal citations omitted).

      The same is true here. Therefore, we are constrained by Valentine,

Newman and Vargas to reverse the judgment of sentence, and remand for

resentencing without consideration of the Section 9712.1 and Section 7508

mandatory minimums.




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     Judgment of sentence vacated.       Case remanded for resentencing

consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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