J-A30003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
TERRY LEE LIPINSKI                        :
                                          :
                   Appellant              :   No. 358 WDA 2017

          Appeal from the Judgment of Sentence December 3, 2014
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0008958-2013


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY BOWES, J.:                          FILED JANUARY 22, 2018

      Terry Lee Lipinski appeals from the aggregate judgment of sentence of

forty to eighty years imposed following his convictions for twenty-three

sexual crimes, including, inter alia, rape and involuntary deviate sexual

intercourse. Appellant’s sole claim on appeal challenges the legality of his

mandatory minimum sentences imposed at six of these counts. We agree

that his sentence is illegal, and we therefore vacate and remand for

resentencing.

      The   Commonwealth       sought   application    of    mandatory    minimum

sentences pursuant to 42 Pa.C.S. § 9781, for three counts of rape, and three

counts of involuntary deviate sexual intercourse.           That sentencing statute

reads, in pertinent part:
J-A30003-17




       (a) Mandatory sentence.--

       (1) A person convicted of the following offenses when the victim
       is less than 16 years of age shall be sentenced to a mandatory
       term of imprisonment as follows:

       ....

       18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating to rape)-
       -not less than ten years.

       18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
       intercourse)--not less than ten years.

       ....

42 Pa.C.S. § 9718.         However, § 9718(c) provides that the court “shall

determine, by a preponderance of the evidence, if this section is applicable.”

42 Pa.C.S. § 9718(c).

       The trial court imposed six mandatory sentences pursuant to that

statute. Following sentencing, our Supreme Court decided Commonwealth

v. Wolfe, 140 A.3d 651 (Pa. 2016), and affirmed our sua sponte

determination that 42 Pa.C.S. § 9718(a)(1) was facially unconstitutional

under Alleyne v. United States, 570 U.S. 99 (2013) (any fact that, by law,

increases the penalty for a crime must be treated as an element of the

offense, and found beyond a reasonable doubt by a jury). 1            Therein,

____________________________________________


1
  Appellant’s direct appeal rights were reinstated following a timely PCRA
petition.



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Matthew Wolfe was convicted of, inter alia, two counts of involuntary deviate

sexual intercourse.   As an element of that crime, the Commonwealth was

required to prove that the victim was under sixteen years of age.           Id. at

653. Wolfe was then sentenced to the mandatory sentence set forth at §

9718(a)(1), which stated, “A person convicted of [involuntary deviate sexual

intercourse] when the victim is less than 16 years of age shall be sentenced

to a mandatory term of imprisonment[.]”        Therefore, no “additional” fact

needed to be determined by the trial court for imposition of the mandatory

sentence, since the jury had necessarily determined that the victim was

under sixteen in rendering a verdict of guilty at the underlying offense.

      Wolfe nevertheless concluded that the statute was unconstitutional,

since the trial court was required to make a factual determination

notwithstanding the jury’s verdict. “[T]he sentencing court was bound to

make its own determination at sentencing, see 42 Pa.C.S. § 9718(c), but it

could not do so in a manner consistent with the Sixth Amendment to the

United States Constitution, on account of Alleyne.”       Furthermore, Wolfe

held that the statute was “unconstitutional on its own non-severable terms”

and therefore rejected the notion that the error was harmless in light of the

jury’s verdict.

      The trial court, while recognizing Wolfe, maintains that Appellant’s

claim is meritless as his circumstances are distinguishable. The trial court,

citing a case from this Court that predates Wolfe, stated that “the factor


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which gave rise to the mandatory minimum sentence was an element of the

offense” and therefore the jury had already made the requisite finding

beyond a reasonable doubt. However, the same was true in Wolfe, and as

a result Appellant is serving an illegal sentence.   Since vacating these

sentences would upset the sentencing scheme, we remand for resentencing

without application of the mandatory minimums.

     Judgment of sentence vacated.       Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2018




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