J-S34039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

MARQUIS DEMONE WILLIAMS

                       Appellant                No. 1888 WDA 2013


         Appeal from the Judgment of Sentence October 28, 2013
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0000365-2013

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

MARQUIS DEMONE WILLIAMS

                       Appellant                No. 1889 WDA 2013


         Appeal from the Judgment of Sentence October 28, 2013
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003345-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                  FILED JANUARY 29, 2015

     Appellant, Marquis Demone Williams, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

open guilty pleas to possession of a controlled substance with intent to

deliver (“PWID”), delivery of a controlled substance, and criminal use of
J-S34039-14


communication facility.1 We affirm the convictions, vacate the judgment of

sentence, remand for resentencing, and deny counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

In July 2012, the Pennsylvania Office of Attorney General utilized a

confidential informant (“CI”) to conduct three controlled purchases of heroin

from Appellant. For each transaction, the CI made telephone contact with

Appellant and arranged to purchase $150.00 worth of heroin.            Thereafter,

the CI met with Appellant and exchanged pre-recorded U.S. currency for the

heroin.     On each occasion, Appellant wrapped the heroin in pieces of

aluminum foil. On August 2, 2012, an undercover agent contacted Appellant

and conducted another controlled purchase of $150.00 worth of heroin.

        On August 3, 2012, police executed a search warrant at 2125 E. 10 th

Street in Erie.       Appellant and another individual were present at the

residence during the search.           Inside the residence, police discovered a

firearm, four pieces of aluminum foil containing heroin, drug paraphernalia,

and loose and packaged marijuana.              Police also found $1,441.00 in U.S.

currency on Appellant’s person.         Appellant later told police that the heroin

belonged to him, and he possessed it for personal use.

        On January 22, 2013, the Commonwealth filed a criminal information

at No. 3345 of 2012, charging Appellant with offenses related to the

____________________________________________


1
    35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512.



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execution of the search warrant.       On March 12, 2013, the Commonwealth

filed a criminal information at No. 365 of 2013, charging Appellant with

offenses related to the controlled purchases of heroin.            At both docket

numbers, Appellant filed omnibus pretrial motions.       Appellant claimed the

Commonwealth failed to provide proper notice of the charges, and it failed to

provide a copy of the affidavit of probable cause for the search warrant.

Appellant also asserted that the court should suppress all physical evidence

and statements, due to the Commonwealth’s allegedly illegal investigation.

On June 19, 2013, the court denied Appellant’s pretrial motions.

     On    September     10,   2013,    Appellant   executed   a    statement   of

understanding of rights prior to his guilty pleas.    The statement explained

that Appellant had entered into the following plea bargain:

          The only plea bargain in my case is [Appellant] will plead
          guilty as charged at Docket No. 3345 of 2012 to [PWID],
          and in exchange, the Commonwealth will nolle [prosequi]
          Counts Two, Three and Four, and guilty at Docket No. 365
          of 2013 to [delivery of a controlled substance and criminal
          use of communication facility], and in exchange the
          Commonwealth will nolle [prosequi] Counts Two, Three,
          Four, Five, Six, Seven and Eight, with costs on [Appellant].

(Statement of Understanding of Rights, filed 9/10/13, at 1). The statement

indicated that Appellant faced a mandatory minimum sentence for the

offense of PWID, but the parties had not negotiated a specific sentence.

     That same day, the court conducted a hearing; and Appellant pled

guilty at both docket numbers. At the hearing, the Commonwealth provided

the factual basis for the pleas. For the PWID charge at No. 3345 of 2012,

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Appellant admitted that the amount of heroin at issue was two (2) grams

and that he knew he would be subject to a mandatory minimum sentence,

due to the weight of the heroin. At the conclusion of the hearing, the court

accepted the guilty pleas and scheduled the matter for sentencing.

       On October 28, 2013, the court conducted Appellant’s sentencing

hearing. At No. 3345 of 2012, the court sentenced Appellant to two (2) to

four (4) years’ imprisonment for PWID, which included a mandatory

minimum term, pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i).             At No. 365 of

2013, the court sentenced Appellant at the low end of the standard

guidelines range to twenty-one (21) to forty-two (42) months’ imprisonment

for delivery of a controlled substance, consecutive to the sentence imposed

at No. 3345 of 2012. The court also sentenced Appellant to three (3) years’

probation for criminal use of communication facility, consecutive to the

sentence imposed for delivery of a controlled substance.2 Appellant did not

object   at   sentencing     or   file   post-sentence   motions   challenging   the

discretionary aspects of sentencing or seek to withdraw his guilty pleas.

       Appellant timely filed notices of appeal at both docket numbers on

November 27, 2013. That same day, counsel filed statements of intent to

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2
  With a prior record score (“PRS”) of five (5) and an offense gravity score
(“OGS”) of six (6), the standard range for Appellant’s delivery conviction was
twenty-one (21) to twenty-seven (27) months. With a PRS of five (5) and
an OGS of five (5), the standard range for Appellant’s criminal use of
communication facility conviction was twelve (12) to eighteen (18) months.



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file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967). This Court consolidated the appeals sua sponte on

January 27, 2014.     On June 27, 2014, this Court remanded the matter,

directing the trial court to order the transcription of all notes of testimony.

Further, we ordered appellate counsel to file a brief in full compliance with

Anders or a proper advocate’s brief. Appellate counsel subsequently filed

an Anders brief and petition for leave to withdraw.

      As a preliminary matter, appellate counsel again seeks to withdraw

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.     Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.


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2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
          summary of the procedural history and facts, with citations
          to the record; (2) refer to anything in the record that
          counsel believes arguably supports the appeal; (3) set
          forth counsel’s conclusion that the appeal is frivolous; and
          (4) state counsel’s reasons for concluding that the appeal
          is frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.


____________________________________________


3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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     Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel reviewed the record and concluded the appeal would

be wholly frivolous.    Counsel also supplied Appellant with a copy of the

withdrawal petition, the brief, and a letter explaining Appellant’s right to

proceed pro se or with new privately retained counsel to raise any additional

points or arguments Appellant deems worthy of this Court’s consideration.

In her Anders brief, counsel provides a summary of the procedural history

of the case.     Counsel refers to facts in the record that might arguably

support the issue raised on appeal and offers citations to relevant law. The

brief also provides counsel’s reasons for her conclusion that the appeal is

wholly frivolous.      Thus, counsel has substantially complied with the

requirements of Anders and Santiago.

     As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issue raised in the Anders brief:

        WAS THE SENTENCE IN THIS CASE MANIFESTLY
        EXCESSIVE AND CLEARLY UNREASONABLE, AND NOT
        INDIVIDUALIZED AS REQUIRED BY LAW, PARTICULARLY
        IN ITS FAILURE TO CONSIDER MITIGATING FACTORS AND
        THE FACT THAT [APPELLANT] HAD NOT BEEN IN TROUBLE
        WITH THE LAW FOR OVER A DECADE?

(Anders Brief at 1).

     Appellant      contends   the   court   violated   the   fundamental   norms

underlying the sentencing process, because it imposed a sentence that was

not individualized. Appellant emphasizes he had not been arrested “for quite

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some time” prior to committing the offenses at issue. (Anders Brief at 4).

Appellant argues a less restrictive punishment, such as probation or a

shorter term of incarceration, would have better served his rehabilitative

needs.    Appellant concludes the court abused its discretion by imposing a

manifestly excessive and clearly unreasonable sentence.                     Appellant’s

challenge    is   to   the   discretionary      aspects   of   his   sentence.4   See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim

that sentence is manifestly excessive challenges discretionary aspects of

sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
____________________________________________


4
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
plea was “open” as to sentencing at No. 365 of 2013. At No. 3345 of 2012,
the parties agreed that Appellant faced a mandatory minimum sentence,
with no further negotiated sentence. Thus, Appellant can challenge the
discretionary aspects of his sentence.



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          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. 720; (3) whether
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the
          sentence appealed from is not appropriate under the
          Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal ‘furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’”     Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

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were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

       A claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement sufficiently

articulates the manner in which the sentence imposed violates a specific

provision of the Sentencing Code or the norms underlying the sentencing

process.    Mouzon, supra at 435, 812 A.2d at 627.             A claim that the

sentencing court abused its discretion by failing to impose an individualized

sentence raises a substantial question.            Commonwealth v. Ahmad, 961

A.2d 884, 887 (Pa.Super. 2008).

       In the instant case, Appellant’s Rule 2119(f) statement preserved his

claim regarding the court’s purported error at sentencing.5          Appellant’s

challenge appears to raise a substantial question as to the discretionary

aspects of his sentence. See id.

       Our standard of review concerning the discretionary aspects of

____________________________________________


5
   Appellant did not object at sentencing or file a post-sentence motion
raising the claim advanced in his Rule 2119(f) statement. Nevertheless, in
light of counsel’s motion to withdraw, we will address Appellant’s contention.
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009)
(explaining Anders requires review of issues otherwise waived on appeal).



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sentencing is as follows:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish,
         by reference to the record, that the sentencing court
         ignored or misapplied the law, exercised its judgment for
         reasons of partiality, prejudice, bias or ill will, or arrived at
         a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

      “When imposing a sentence, a court is required to consider the

particular circumstances of the offense and the character of the defendant.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (quoting

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), cert. denied,

545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005)).

         In particular, the court should refer to the defendant’s
         prior criminal record, his age, personal characteristics and
         his potential for rehabilitation. Where the sentencing court
         had the benefit of a presentence investigation report
         (“PSI”), we can assume the sentencing court was aware of
         relevant information regarding the defendant’s character
         and weighed those considerations along with mitigating
         statutory factors. Further, where a sentence is within the
         standard range of the guidelines, Pennsylvania law views
         the sentence as appropriate under the Sentencing Code.

Moury, supra at 171 (internal citations and quotation marks omitted).

      Instantly, the court had the benefit of a PSI report.             (See N.T.

Sentencing Hearing, 10/28/13, at 13-14, 17.) Therefore, we can presume

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the court considered the relevant sentencing factors.     See Moury, supra.

At No. 3345 of 2012, the court imposed a mandatory minimum sentence. At

No. 365 of 2013, the court imposed a standard range sentence for

Appellant’s delivery conviction. The court also imposed only a probationary

sentence for Appellant’s criminal use of communication facility conviction.

Under these circumstances, Appellant’s sentences were appropriate. Id.

       Moreover, the court provided the following on-the-record statement in

support of the sentences imposed:

           Well, I’ve read the [PSI] report as I’ve indicated and the
           Sentencing Guidelines have been reviewed. And I am
           concerned with your criminal history. I recognize a lot of
           it’s from the [1990’s] and there hasn’t been anything since
           then. But I don’t think you were here to mow grass or to
           work.[6] And that somehow you got involved in the heroin
           trade here to the point where the Attorney General’s
           Office, through a confidential informant, was able to buy
           heroin from you on July 13, 2012. And when you were
           arrested a couple weeks later you had more heroin and
           more money on you. And heroin is a real, real problem in
           this community, as it is in a lot of communities.

(See N.T. Sentencing Hearing at 17-18.) Contrary to Appellant’s argument,

the court’s statement demonstrated that it was aware of Appellant’s criminal

history.   Thus, the court did not abuse its discretion, and Appellant is not

entitled to relief for his challenge to the discretionary aspects of sentencing.

____________________________________________


6
  At the sentencing hearing, the parties noted that Appellant was thirty-nine
(39) years old at the time of the offenses, he runs his own lawn care
business, he resides in the state of Michigan, and he was visiting an
acquaintance in Erie at the time of the offenses.



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See Hyland, supra.

      Regarding the imposition of a mandatory minimum sentence at No.

3345 of 2012, we are mindful of the United States Supreme Court’s decision

in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d

314 (2013), in which the Court expressly held that any fact increasing the

mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the fact-finder and found beyond a reasonable

doubt (or admitted in the case of a guilty plea). Here, the court imposed a

mandatory minimum sentence per Section 7508 for Appellant’s PWID

conviction.   Consequently, we elect sua sponte to review the legality of

Appellant’s PWID sentence. See Commonwealth v. Edrington, 780 A.2d

721 (Pa.Super. 2001) (explaining challenge to application of mandatory

minimum sentence is non-waiveable challenge to legality of sentence, which

this Court can raise sua sponte).

      Section 7508(a)(7)(i) sets forth a mandatory minimum sentence of

two (2) years’ imprisonment where a defendant is convicted of PWID

involving at least one (1) gram of heroin but less than five (5) grams. 18

Pa.C.S.A. § 7508(a)(7)(i).     Section 7508(b) states that the statutory

provisions shall not be an element of the crime and applicability of the

statute shall be determined at sentencing by a preponderance of the

evidence.     18 Pa.C.S.A. § 7508(b).        Recently, in Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), this Court addressed the


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constitutionality of a similar statute, 42 Pa.C.S.A. § 9712.1, in light of the

Alleyne decision.7 Relying on Alleyne, Newman held that Section 9712.1

can no longer pass constitutional muster as it “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.” Newman, supra at 98. Thus, this Court vacated Newman’s PWID

sentence     and   remanded       for   resentencing   without   imposition   of   the

mandatory minimum under Section 9712.1. See also Commonwealth v.

Valentine, 101 A.3d 801 (Pa.Super. 2014) (extending logic of Alleyne and

Newman to Sections 42 Pa.C.S.A. §§ 9712, 9713 and holding those

sections are likewise unconstitutional insofar as they permit automatic

increase of defendant’s sentence based on preponderance of evidence

standard).

       Subsequently, this Court directly addressed the constitutionality of

Section 7508 in Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super

289 (filed December 31, 2014) (en banc). In Vargas, the court convicted

the defendant of PWID and related offenses following a bench trial. At trial,

____________________________________________


7
  The Newman Court also made clear that Alleyne is subject to limited
retroactivity; in other words, Alleyne is applicable to all criminal cases still
pending on direct review. Newman, supra at 90. Because Newman’s case
was still pending on direct appeal, the holding in Alleyne applied to
Newman’s case, as it does here in this direct appeal.



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the defendant stipulated that the heroin at issue weighed 377.73 grams. At

sentencing, the court imposed a mandatory minimum term for the PWID

conviction, pursuant to Section 7508(a)(7)(iii).      On appeal, this Court

emphasized that Section 7508 “is structured in the same manner as the

statutes that were at issue in Newman and Valentine….” Id. at *17. This

Court concluded that Section 7508 is also unconstitutional. Moreover, even

though the defendant stipulated to the weight of the heroin at trial, this

Court maintained: “[T]he trial court erred in imposing the mandatory

minimum sentence as Section 7508 is unconstitutional in its entirety.” Id.

      Instantly, the court accepted Appellant’s guilty pleas following the

hearing on September 10, 2013. For the PWID charge at No. 3345 of 2012,

Appellant admitted possessing two (2) grams of heroin. At sentencing, the

court applied Section 7508 to Appellant’s PWID conviction.          Given this

Court’s decisions in Newman, Valentine, and Vargas, however, we must

vacate the judgment of sentence in its entirety and remand for resentencing.

See Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal

denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one

count in multi-count case generally requires all sentences for all counts to be

vacated so court can restructure entire sentencing scheme).         See also

Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517 A.2d 1280, 1283

(1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987))

(stating if appellate court alters overall sentencing scheme, then remand for


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re-sentencing is proper).    Accordingly, we affirm Appellant’s convictions,

vacate   the   judgment of sentence,      remand for     resentencing without

imposition of a mandatory minimum sentence, and deny counsel’s petition to

withdraw.

      Judgment of sentence vacated; case remanded for resentencing;

counsel’s petition to withdraw is denied. Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2015




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