J-S01039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES MCMICHAEL

                            Appellant                 No. 3197 EDA 2014


            Appeal from the Judgment of Sentence August 11, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005966-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                   FILED JANUARY 12, 2016

        Appellant, Charles McMichael, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for robbery, conspiracy, and possessing instruments of

crime (“PIC”).1 On March 25, 2013, codefendant Marquis Jackson’s brother

and the two victims were in the Jackson family home.                Appellant and

codefendant entered the house, and Appellant pointed a firearm at the

victims while ordering them to empty their pockets.       On May 13, 2014, a

jury convicted Appellant of two (2) counts of robbery and one (1) count each

of conspiracy and PIC. On August 6, 2014, Appellant filed a motion to bar

application of a mandatory minimum sentence, which the court granted in
____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 907(a), respectively.
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part and denied in part. The court sentenced Appellant on August 11, 2014,

to   concurrent   terms   of   five-and-a-half   (5½)   to   twelve   (12)   years’

incarceration for the robbery and conspiracy convictions, pursuant to the

mandatory minimum sentencing statute at 42 Pa.C.S.A. § 9712 (sentences

for offenses committed with firearms). The court imposed a concurrent term

of two-and-a-half (2½) to five (5) years’ incarceration for PIC.        Appellant

timely filed a post-sentence motion on August 20, 2014, which the court

denied on November 4, 2014. Appellant filed a timely notice of appeal on

November 12, 2014, and a voluntary statement per Pa.R.A.P. 1925(b).

      Section 9712 states its statutory provisions shall not be an element of

the crime, and its applicability shall be determined at sentencing by a

preponderance of the evidence.       In Alleyne v. United States, ___ U.S.

___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme

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.                See also

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

(holding 42 Pa.C.S.A. § 9712.1 can no longer pass constitutional muster as

it permits court to increase defendant’s minimum sentence based upon

preponderance of evidence). This Court extended the logic of Alleyne and

Newman to Section 9712, in Commonwealth v. Valentine, 101 A.3d 801

(Pa.Super. 2014), holding that statute is likewise unconstitutional insofar as


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it permits increase of a defendant’s sentence based on the preponderance of

the evidence standard; the court could not cure the unconstitutionality of the

statute with a verdict sheet containing specific jury interrogatories. Id. In

so doing, the court would improperly create a new sentencing procedure, as

the statute is not severable and is unconstitutional in its entirety. Id.

       Instantly, the court imposed mandatory minimum sentences for each

of Appellant’s robbery and conspiracy convictions, pursuant to 42 Pa.C.S.A.

§ 9712. The sentences were unlawful, despite the jury’s finding beyond a

reasonable doubt that Appellant possessed a firearm during the robberies.

See id.      Accordingly, we affirm Appellant’s convictions, but vacate the

judgment of sentence in its entirety and remand for resentencing on all

convictions, without imposition of a mandatory minimum term. 2              See

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

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

multi-count case requires that all sentences be vacated so court can

restructure its whole sentencing scheme).

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.



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2
  We decline the Commonwealth’s invitation to hold our decision on this
appeal pending the resolution of Alleyne challenges presently under review
by the Pennsylvania Supreme Court.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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