J-S72011-17


                                    2018 PA Super 8

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ANTOINE MOTLEY,

                            Appellant                    No. 1940 EDA 2016


         Appeal from the Judgment of Sentence Entered June 19, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003997-2007


BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.:                             FILED JANUARY 19, 2018

        Appellant, Antoine Motley, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 15 to 30 years’ incarceration, followed by

10 years’ probation, imposed after he was convicted of various offenses

including robbery and carrying a firearm without a license. Appellant solely

challenges the legality of his sentence. After careful review, we agree with

Appellant that his sentence is illegal, albeit for a different reason than he

posits herein. Accordingly, we vacate his judgment of sentence and remand

for resentencing.

        Briefly, Appellant and a cohort were arrested after they committed an

armed robbery of two employees of the United States Postal Service.

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*
    Former Justice specially assigned to the Superior Court.
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Appellant was charged with various offenses and, following a jury trial in

April of 2012, he was convicted of two counts of robbery (threatening

immediate serious bodily injury), 18 Pa.C.S. § 3701(a)(1)(ii); carrying a

firearm without a license, 18 Pa.C.S. § 6106(a)(1); and possessing an

instrument of crime (PIC), 18 Pa.C.S. § 907(a). On June 19, 2012, the court

sentenced Appellant to consecutive terms of 7½ to 15 years’ incarceration

for his two robbery convictions, and two consecutive terms of 5 years’

probation for his PIC and firearm offenses. Therefore, Appellant’s aggregate

sentence is 15 to 30 years’ incarceration, followed by 10 years’ probation.

      Appellant filed a timely direct appeal and this Court affirmed, deeming

Appellant’s two issues waived based on his failure to develop any meaningful

argument in support thereof.    See Commonwealth v. Motley, No. 1750

EDA 2012, unpublished memorandum at 2-3 (Pa. Super. filed Oct. 15,

2013).   Appellant did not file a petition for allowance of appeal with our

Supreme Court.

      Instead, on January 7, 2014, Appellant file a timely, pro se petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Counsel was appointed and filed an amended petition on Appellant’s behalf,

seeking the restoration of his direct appeal rights. The PCRA court granted

that petition, and Appellant filed the present, nunc pro tunc appeal from his

judgment of sentence. Herein, he raises one issue for our review: “Whether

Appel[l]ant’s sentence should be vacated because it is based upon an illegal

mandatory minimum [sentence?]” Appellant’s Brief at 6.

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      Appellant   contends   that   he   received   two   mandatory   minimum

sentences for his robbery convictions, and that those sentences are illegal in

light of Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding

that “facts that increase mandatory minimum sentences must be submitted

to the jury” and found beyond a reasonable doubt). Based on the following

procedural history and legal authority, we disagree with both of Appellant’s

arguments.

      First, after Appellant’s conviction and prior to his sentencing hearing,

the Commonwealth filed a notice of its intent to seek, for each of Appellant’s

two robbery convictions, the imposition of a 10-year, mandatory minimum

sentence as required by 42 Pa.C.S. § 9714 (Sentences for second and

subsequent offenses). However, as the trial court acknowledges, it did not

orally impose those mandatory minimum terms of 10 years’ incarceration at

the sentencing proceeding on June 19, 2012.          See Trial Court Opinion,

3/22/17, at 4.    Instead, the court imposed a term of 7½ to 15 years’

imprisonment for each of Appellant’s robbery convictions.       See id.    The

court’s written sentencing order filed that same day also sets forth

consecutive sentences of 7½ to 15 years’ incarceration for those crimes.

      Notwithstanding, Appellant now claims that he received mandatory

minimum sentences for his robbery convictions. His argument rests on the

fact that a court commitment form (“form DC-300B”) accompanying the

written sentencing order has the “yes” box checked under the heading

“Mandatory Sentence.”    According to Appellant, form DC-300B constitutes

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the written sentencing order, and evinces that mandatory minimum

sentences were applied in his case.      He then cursorily states that those

sentences are illegal under Alleyne.

      Appellant’s argument is wholly unconvincing.      First, form DC-300B

does not constitute part of the trial court’s sentencing order; rather, it is

simply a document generated by the Common Pleas Criminal Court Case

Management     System   that must be      provided   to the   Department   of

Corrections (DOC) upon the commitment of an inmate.       See 42 Pa.C.S. §

9764(a). The written sentencing order, signed by the trial judge, constitutes

the sentence imposed by the court.      See Commonwealth v. Borrin, 80

A.3d 1219, 1226 (Pa. 2013) (“In Pennsylvania, the text of the sentencing

order … is determinative of the court’s sentencing intentions and the

sentence imposed.”) (citations omitted).       Here, that sentencing order

unequivocally demonstrates that Appellant did not receive a mandatory

minimum of 10 years’ incarceration for either of his robbery convictions.

See Sentencing Order, 6/19/12 (stating a sentence of “a Minimum Term of 7

years and 6 months and a Maximum Term of 15 years” for both of

Appellant’s robbery convictions).

      Second, even if Appellant had received a mandatory minimum

sentence under section 9714, he is incorrect that that provision is

unconstitutional under Alleyne.        Curiously, Appellant recognizes that

mandatory minimum sentences predicated on prior convictions are an

exception to the rule announced in Alleyne.       See Appellant’s Brief at 9

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(“Subsequent to [Alleyne,] the appellate courts in this Commonwealth have

consistently held that, with the exception of mandatory minimum sentences

predicated on prior offenses, all of Pennsylvania’s mandatory minimum

sentencing provisions that require the sentencing court to ascertain the

application of the mandatory minimum provisions are unconstitutional.”)

(emphasis added); see also Alleyne, 133 S.Ct. at 2160 n.1. As this Court

has recognized, the mandatory minimum sentences set forth in section 9714

are predicated on prior convictions and, thus, that provision is not

unconstitutional under Alleyne. See Commonwealth v. Bragg, 133 A.3d

328, 333 (Pa. Super. 2016) (recognizing that 42 Pa.C.S. § 9714 “is not

unconstitutional under Alleyne as it provides for mandatory sentences

based on prior convictions”), aff’d, 169 A.3d 1024 (Pa. 2017) (per curiam

order).    Thus, Appellant’s challenge to the legality of his sentence is

meritless on this basis, as well.

       The Commonwealth, however, presents a convincing argument that

Appellant’s robbery sentences are illegal for a different reason. Specifically,

the Commonwealth maintains that “the court imposed an illegal sentence by

not   applying     [s]ection     9714    to    [Appellant’s]   robbery   convictions.”

Commonwealth’s Brief at 11 (emphasis in original).1              The Commonwealth

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1
  We recognize that the Commonwealth did not raise this sentencing claim
before the trial court, nor exercise its statutory right to appeal from the trial
court’s failure to apply the mandatory sentences. See 42 Pa.C.S. § 9714(f)
(“If a sentencing court shall refuse to apply this section where applicable,
(Footnote Continued Next Page)


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stresses that it “took all the necessary actions to invoke the mandatory

minimum sentences[,]” including filing a notice of its intent to seek those

sentences and “furnish[ing Appellant] with documentation for his prior

robbery convictions,” which were “marked and moved … into the record at

the sentencing hearing.” Id. at 9 (citing N.T. 6/19/12, at 10-11).

      The record supports the Commonwealth’s argument that it adhered to

the requirements for invoking application of section 9714. Accordingly, the

trial court was statutorily required to determine, at Appellant’s sentencing

hearing, whether section 9714 is applicable to Appellant and, if so, to impose

the mandatory terms of incarceration required by that provision.      See 42

Pa.C.S. § 9714(d) (discussing the requirements of the court for determining

the applicability of section 9714(a) at the sentencing proceeding); 42

Pa.C.S. § 9714(e) (stating that “[t]here shall be no authority in any court to

impose on an offender to which this section is applicable any lesser sentence

than provided for in subsections (a) and (a.1)”). Because the trial court did

not adhere to the dictates of section 9714, Appellant’s sentences for his two
                       _______________________
(Footnote Continued)

the Commonwealth shall have the right to appellate review of the action of
the sentencing court.”). However, our Supreme Court has held “that where
a sentencing court is required to impose a mandatory minimum sentence,
and that mandatory minimum sentence affects a trial court’s traditional
sentencing authority or the General Assembly’s intent in fashioning
punishment for criminal conduct, a defendant’s challenge thereto sounds in
legality of sentence and is therefore nonwaivable.” Commonwealth v.
Foster, 17 A.3d 332, 345 (Pa. 2011). We see no reason why this rule would
not apply in the context of the Commonwealth’s challenge to the court’s
failure to impose a mandatory sentence.



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robbery convictions are illegal and must be vacated. See Commonwealth

v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (“If no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction. … An illegal sentence must be vacated.”) (quoting

Commonwealth v. Alexander, 811 A.2d 1064, 1065, 1066 (Pa. Super.

2002)).2     As our disposition in this regard upsets the court’s overall

sentencing scheme, we vacate Appellant’s judgment of sentence in its

entirety, and remand for resentencing on all counts. See Commonwealth

v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating that if our

disposition upsets the overall sentencing scheme of the trial court, we must

remand so that the court can restructure its sentence plan).

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.




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2
  Unfortunately for Appellant, our disposition will result in the trial court’s
imposing lengthier sentences for his two robbery convictions, assuming that
it finds section 9714(a) applicable to his case. However, the trial court
clearly retains its discretion to craft a similar (or lesser) aggregate sentence
than that which it originally imposed, by running Appellant’s sentences
concurrently rather than consecutively, and/or by imposing terms of
incarceration for his other offenses. Regardless of whether outcome of
Appellant’s resentencing ultimately benefits him, we must vacate his illegal
sentences, as we have jurisdiction to do so. See Randal, 837 A.2d at 1214
(citation omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




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