J-S01010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellee                 :
                                           :
           v.                              :
                                           :
CLIFFORD ANTHONY WILSON,                   :
                                           :
                  Appellant                :           No. 422 WDA 2014

    Appeal from the Judgment of Sentence entered on August 15, 2013
            in the Court of Common Pleas of Allegheny County,
              Criminal Division, No. CP-02-CR-0002854-2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 23, 2015

     Clifford Anthony Wilson (“Wilson”) appeals from the judgment of

sentence imposed following his convictions of one count each of robbery,

robbery of a motor vehicle, kidnapping for ransom, aggravated assault,

unlawful   restraint,   and   criminal   conspiracy.     See    18   Pa.C.S.A.

§§ 3701(a)(1)(ii); 3702; 2901(a)(1); 2702(a)(1); 2902(a)(1); 903.             We

vacate the sentence and remand for re-sentencing.

     The trial court set forth the relevant procedural history1 as follows:

     By criminal information filed at No. CC2012-02854[,] on April
     12, 2012, [Wilson] was charged with [the above-mentioned
     crimes].




1
  We will not discuss the relevant factual history of this case, as Wilson’s
claims on appeal relate solely to the sentence imposed by the trial court.
We note that the trial court has set forth an exhaustive recitation of the
underlying facts in its Opinion. See Trial Court Opinion, 6/30/14, at 4-10.
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        Pursuant to [a] Motion filed by the Commonwealth, this case was
        joined for trial with the cases of the two co-defendants;
        Commonwealth v. Dayton Shelton, CC2012-02856; and
        Commonwealth v. Clinton Edward Wilson, CC2012-02855.

        On May 8, 2013, [Wilson] proceeded to a non-jury trial before
        th[e trial c]ourt. At the conclusion of the trial on May 9, 2013,
        [the trial c]ourt adjudged [Wilson] guilty of all charges.

        On May 10, 2013, the Commonwealth filed a “Notice of Intent to
        Seek Mandatory Sentencing Provisions,” specifically the
        application of 42 Pa.C.S.[A.] § 9712.[2]

        On August 15, 2013, [the trial c]ourt sentenced [Wilson] as
        follows:

          At Count One, Robbery, not less than 5 years, nor more
          than 10 years of incarceration, and a consecutive 10[-]year
          period of probation; at Count Two, Robbery of a Motor
          Vehicle, not less than 5 years, nor more than 10 years of
          incarceration, and a consecutive 10[-]year period of
          probation.    The Sentence at Count Two was imposed
          concurrently to the sentence at Count One. No further
          penalty was imposed as to the remaining Counts.

        [N.T., 8/15/13, at 12-13]. [While the trial court did not orally
        mention section 9712 at sentencing, in the Sentencing Guideline

2
    Section 9712 states the following, in relevant part:

        Except as provided under section 9716 (relating to two or more
        mandatory minimum sentences applicable), any person who is
        convicted in any court of this Commonwealth of a crime of
        violence as defined in section 9714(g) (relating to sentences for
        second and subsequent offenses), shall, if the person visibly
        possessed a firearm or a replica of a firearm, whether or not the
        firearm or replica was loaded or functional, that placed the
        victim in reasonable fear of death or serious bodily injury, during
        the commission of the offense, be sentenced to a minimum
        sentence of at least five years of total confinement
        notwithstanding any other provision of this title or other statute
        to the contrary.

42 Pa.C.S.A. § 9712(a).


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      Form attached to the written Order of Sentence, the trial court
      stated that the reason for the sentence was the mandatory
      minimum sentence under section 9712.]

      On September 4, 2013, Counsel for [Wilson] … filed a Petition to
      Accept Post Sentence Motion Nunc Pro Tunc.

      By Order dated September 13, 2013, [the trial c]ourt granted
      [Wilson’s] Petition …. [The trial c]ourt further granted [Wilson]
      additional time to amend the Post Sentence Motion[], and for
      [the trial c]ourt to decide the Post Sentence Motion[].

      On October 11, 2013, [an] Amended Post Sentence Motion was
      filed on behalf of [Wilson]. The Motion contended that the
      verdict of guilt was contrary to the weight of the evidence ….

      On February 12, 2014, the Post Sentence Motion was denied by
      operation of law. …

      On March 12, 2014, [Wilson] filed a Notice of Appeal to the
      Superior Court of Pennsylvania. By Order dated March 12, 2014,
      [the trial c]ourt ordered [] Wilson to file a Statement of Errors
      Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). [Wilson
      filed a timely Concise Statement.]

Trial Court Opinion, 6/30/14, at 1-4 (quotation marks, emphasis, and some

capitalization omitted, footnote added).

      On appeal, Wilson raises the following questions for our review:

      1. Did the trial court act illegally in this case when it, after
         finding at the sentencing hearing that it was more likely than
         not that [Wilson] visibly possessed a firearm during the
         commission of the four crimes of violence of which he was
         convicted, imposed upon [Wilson] a five-year mandatory
         minimum sentence pursuant to 42 Pa.C.S.[A.] § 9712?

      2. Was the trial court’s action illegal since (A) [Wilson] was
         entitled to have a jury decide whether or not § 9712’s
         mandatory [minimum sentence] was applicable, and to do so
         employing a beyond-a-reasonable-doubt standard, unless and
         until he waived that right; and (B) [Wilson’s] waiver of his
         right to a jury trial did not constitute a waiver of his right to


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          have a jury determine if § 9712 applied beyond a reasonable
          doubt (inasmuch as that waiver consented only to allowing
          the trial court to decide his guilt or innocence of the crimes
          charged on the criminal complaint)?

Brief for Appellant at 3 (some capitalization omitted).      We will address

Wilson’s claims together.

      Wilson contends that the trial court imposed an illegal sentence by

invoking the mandatory minimum sentence provisions of 42 Pa.C.S.A.

§ 9712.   Id. at 10-11, 14-15, 19, 29-30.     Wilson argues that pursuant to

Alleyne v. United States, 133 S. Ct. 2151 (2013), any fact that increases

the mandatory minimum sentence for a crime is an element that must be

submitted to the jury and found beyond a reasonable doubt.           Brief for

Appellant at 15-16; see also id. at 16-19, 28-29 (wherein Wilson cites to

various decisions by this Court and claims that 42 Pa.C.S.A. § 9712 is

unconstitutional under the reasoning of Alleyne). Wilson asserts that a jury

must make a specific finding of whether a firearm was used in the

commission of the crimes of violence. Id. at 10-11, 19; see also id. at 10,

20, 22-27 (wherein Wilson argues that his waiver of a jury trial did not

constitute a waiver of his right to have a jury determine the applicability of

section 9712 at sentencing).    Wilson further asserts that the record belies

the trial court’s claim that it did not impose the mandatory minimum

sentence under section 9712. Id. at 27. Wilson specifically points out that

the Sentencing Guideline Form indicates that the trial court imposed the

mandatory minimum sentence under section 9712. Id. Wilson claims that


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because a sentence imposed under section 9712 is unconstitutional, his

sentence was illegal and, accordingly, the case should be remanded for re-

sentencing. Id. at 30.

      Initially, we note that a mandatory minimum sentencing claim that

invokes the reasoning of Alleyne implicates the legality of the sentence.

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).                 “A

challenge to the legality of the sentence may be raised as a matter of right,

is non-waivable, and may be entertained so long as the reviewing court has

jurisdiction.”   Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.

Super. 2007) (en banc).

      Prior to Wilson’s sentencing in this case, the Supreme Court of the

United States decided Alleyne, and 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 jury and found beyond a reasonable doubt.

Alleyne, 133 S. Ct. at 2155-56, 2163.      “The Alleyne decision, therefore,

renders those Pennsylvania mandatory minimum sentencing statutes that do

not pertain to prior convictions constitutionally infirm insofar as they permit

a judge to automatically increase a defendant’s sentence based on a

preponderance of the evidence standard.” Commonwealth v. Watley, 81

A.3d 108, 117 (Pa. Super. 2013) (en banc) (footnote omitted). Thus, based

upon the Alleyne decision, section 9712 has been deemed unconstitutional.

See Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa. Super.



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2014) (declaring that the unconstitutional provisions of section 9712(c) are

not severable from the remainder of the statute, but are “essentially and

inseparably connected,” and therefore the statute is unconstitutional as a

whole).3

      Instantly, at sentencing, the trial court stated that it would not impose

the mandatory minimum sentence, and instead, imposed a sentence of 5 to

10 years in prison, in light of the prior record score, the nature and gravity

of the offenses, and Wilson’s background and rehabilitative needs. See Trial

Court Opinion, 6/30/14, at 11-12 (citing N.T., 8/15/13, at 4, 7-12).

However, the Sentencing Guideline Form attached to the written Order of

Sentence, which imposed the sentence of 5 to 10 years in prison, includes a

written notation stating that the reason for the sentence is the mandatory



3
  We recognize that, since the Alleyne decision, this Court has upheld
sentences imposed under various mandatory minimum sentencing provisions
rendered unconstitutional by the Alleyne decision, where the facts
necessary to establish application of the mandatory minimum sentence were
determined by the jury beyond a reasonable doubt. See Watley, 81 A.3d
at 121; see also Commonwealth v. Matteson, 96 A.3d 1064, 1066-67
(Pa. Super. 2014). However, as related to section 9712, an en banc panel of
this Court concluded that “the entirety of the mandatory minimum
sentencing statute must be stricken as unconstitutional because ‘[w]ithout
Subsection (c), there is no mechanism in place to determine whether the
predicate of Subsection (a) has been met[,]’ and that it is for the legislature
to create new mandatory minimum sentencing procedures in conformity with
Alleyne.” Valentine, 101 A.3d at 812 n.4 (citing Commonwealth v.
Newman, 99 A.3d 86, 101, 105 (Pa. Super. 2014) (en banc)); see also
Commonwealth v. Wolfe, 2014 PA Super 288 *6 (Pa. Super. 2014)
(abrogating the Matteson decision based upon the reasoning in Valentine
and Newman).



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minimum sentence under 42 Pa.C.S.A. § 9712.4 Sentencing Guideline Form,

8/15/13.

      While the trial court did not cite to section 9712 at sentencing, the

Sentencing Guideline Form indicates that the trial court utilized section 9712

in crafting its sentence, as stated in the written Order of Sentence.    See

Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa. Super. 2013) (stating

that “where there is a discrepancy between the sentence as written and

orally pronounced, the written sentence generally controls.”); see also id.

(stating that “[o]ral statements made by the sentencing court, but not

incorporated into the written sentence signed by the court, are not part of

the judgment of sentence.”).     Because section 9712 has been ruled to be

unconstitutional pursuant to Alleyne and Valentine, and the written

sentence indicates that the trial court applied section 9712, the sentence

imposed upon Wilson is illegal.     Thus, we must vacate the sentence and

remand for re-sentencing without consideration of the section 9712

mandatory minimum sentence.

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

Jurisdiction relinquished.

      Gantman, P.J., joins the memorandum.

      Jenkins, J., files a dissenting statement.



4
  The Sentencing Guideline Form also states that the mitigated range for the
robbery conviction was 60 months in prison.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2015




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