J-S42017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DIANA CANAVIN

                            Appellant                 No. 1690 EDA 2014


           Appeal from the Judgment of Sentence November 15, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009466-2012

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

JUDGMENT ORDER BY MUNDY, J.:                            FILED JULY 23, 2015

        Appellant, Diana Canavin, appeals from the November 15, 2013

aggregate judgment of sentence of five to ten years’ imprisonment, followed

by three years’ probation, imposed after she was found guilty of one count

each of robbery, aggravated assault, criminal conspiracy, theft by unlawful

taking, and possession of an instrument of crime.1 After careful review, we

vacate and remand for resentencing.

        Appellant challenges the five-year mandatory minimum sentence she

received under 42 Pa.C.S.A. § 9713. Appellant’s Brief at 5, 7-8. The trial


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*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2702(a)(1), 903(c), 3921(a), and 907(a),
respectively.
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court acknowledges it sentenced Appellant to the mandatory minimum

pursuant Section 9713. Trial Court Opinion, 11/14/14, at 9.

       In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

this Court, applying Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc), concluded that Section 9713 is facially unconstitutional.

Id. at 811-812.       Recently, our Supreme Court agreed with Newman and

Valentine’s conclusions.        See Commonwealth v. Hopkins, --- A.3d ---,

2015 WL ------- (Pa. 2015) (slip op. at 2, 19, 22, 23) (concluding that 18

Pa.C.S.A. § 6317 is facially unconstitutional because its various subsections

could not be severed from each other under 1 Pa.C.S.A. § 1925). As Section

9713 is unconstitutional on its face, there is no set of circumstances in which

the statute can be constitutionally applied. United States v. Salerno, 481

U.S. 739, 745 (1987); accord Commonwealth v. McKown, 79 A.3d 678,

687 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014). Therefore,

because the trial court applied a facially unconstitutional statute in

sentencing Appellant, the resultant sentence is illegal.2     As our decision

upsets the trial court’s sentencing scheme, we must vacate the entire

judgment of sentence and remand for resentencing.             See generally

Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013).


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2
  In light of our disposition, Appellant’s remaining challenge to the
mandatory minimum sentence is moot.



                                           -2-
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      Based on the foregoing, we conclude the trial court imposed an illegal

sentence when it applied Section 9713 to Appellant. Accordingly, the trial

court’s November 15, 2013 judgment of sentence is vacated, and the case is

remanded    for   resentencing,   without   consideration   of   the   mandatory

minimum provisions, consistent with this judgment order.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2015




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