J-S11022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HERACLIO BERNAL CRUZ

                            Appellant                 No. 1807 EDA 2015


             Appeal from the Judgment of Sentence May 14, 2014
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0002602-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED MARCH 29, 2016

        Heraclio Bernal Cruz appeals, nunc pro tunc, from the judgment of

sentence imposed on May 14, 2014, in the Court of Common Pleas of

Chester County, following his open guilty plea to 37 counts of possession of

a controlled substance (cocaine) with intent to deliver (PWID) and one count

of corrupt organizations.1         Heraclio was subject to multiple mandatory

minimum sentences pursuant to 18 Pa.C.S. § 7508(a)(3)(i)-(iii).       In this

timely appeal, Heraclio argues, and both the Commonwealth and trial court

agree, that pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013),

his sentence is unconstitutional. Accordingly, Heraclio requests his sentence

be vacated and the matter remanded for resentencing.         After a thorough

____________________________________________


1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 911, respectively.
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review of the submissions by the parties, relevant law, and the certified

record, we agree, and therefore vacate the judgment of sentence and

remand for a new sentencing hearing and imposition of a new sentence.

        After pleading guilty to 37 counts of PWID, Cruz received an aggregate

sentence of 23-50 years’ incarceration. This sentence was based upon the

imposition of consecutive terms of at least five mandatory minimum

sentences pursuant to the dictates of 18 Pa.C.S. § 7508(a)(3). This section

includes mandatory minimum sentencing provisions based upon both the

weight of the contraband possessed as well as recidivist status of the

defendant. The recidivist portions of the statute are specifically dependent

on the weight of the drugs possessed.2

____________________________________________


2
    In relevant part, 18 Pa.C.S. § 7508 states:

        (3) A person who is convicted of violating section 13(a)(14),
        (30) or (37) of The Controlled Substance, Drug, Device and
        Cosmetic Act where the controlled substance is coca leaves or is
        any salt, compound, derivative or preparation of coca leaves or
        is any salt, compound, derivative or preparation which is
        chemically equivalent or identical with any of these substances
        or is any mixture containing any of these substances except
        decocainized coca leaves or extracts of coca leaves which
        (extracts) do not contain cocaine or ecgonine shall, upon
        conviction, be sentenced to a mandatory minimum term of
        imprisonment and a fine as set forth in this subsection:


           (i) when the aggregate weight of the compound or mixture
           containing the substance involved is at least 2.0 grams
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

          and less than ten grams; one year in prison and a fine of
          $5,000 or such larger amount as is sufficient to exhaust
          the assets utilized in and the proceeds from the illegal
          activity; however, if at the time of sentencing the
          defendant has been convicted of another drug trafficking
          offense: three years in prison and $10,000 or such larger
          amount as is sufficient to exhaust the assets utilized in and
          the proceeds from the illegal activity;


          (ii) when the aggregate weight of the compound or
          mixture containing the substance involved is at least ten
          grams and less than 100 grams; three years in prison and
          a fine of $15,000 or such larger amount as is sufficient to
          exhaust the assets utilized in and the proceeds from the
          illegal activity; however, if at the time of sentencing the
          defendant has been convicted of another drug trafficking
          offense: five years in prison and $30,000 or such larger
          amount as is sufficient to exhaust the assets utilized in and
          the proceeds from the illegal activity; and


          (iii) when the aggregate weight of the compound or
          mixture of the substance involved is at least 100 grams;
          four years in prison and a fine of $25,000 or such larger
          amount as is sufficient to exhaust the assets utilized in and
          the proceeds from the illegal activity; however, if at the
          time of sentencing the defendant has been convicted of
          another drug trafficking offense: seven years in prison and
          $50,000 or such larger amount as is sufficient to exhaust
          the assets utilized in and the proceeds from the illegal
          activity.


18 Pa.C.S. § 7508(a)(3)(i)-(iii).




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       In Alleyne v. United States, supra, the United States Supreme

Court held that any fact that increases the penalty for a crime is an element

that must be submitted to a jury and found beyond a reasonable doubt. In

light of Alleyne, our courts have determined that the mandatory sentencing

scheme at issue herein is unconstitutional.               See Commonwealth v.

Cardwell, 105 A.3d 748 (Pa. Super. 2014).3 Additionally, Commonwealth

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

Alleyne applied to any criminal case still pending on direct appeal.

       Therefore,     as   recognized      by    both   the   trial   court   and   the

Commonwealth, Cruz’s sentence is unconstitutional and must be vacated.

Accordingly, this matter must be remanded for a new sentencing hearing

and imposition of a new sentence.

       Judgment of sentence vacated.            This matter is remanded for a new

sentencing hearing and imposition of new sentence to be held within 45 days

of receipt of this decision. Jurisdiction relinquished.




____________________________________________


3
 Cardwell cites both Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.
Super. 2014) regarding the non-severability of the offending portions of 18
Pa.C.S. § 7508.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




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