J-S43006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSEPH ROBERT KEEFER

                            Appellant             No. 1860 MDA 2015


           Appeal from the Judgment of Sentence December 2, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0004132-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                    FILED JUNE 21, 2016

       Appellant, Joseph Robert Keefer, appeals from the judgment of

sentence entered in the York County Court of Common Pleas, following his

jury trial convictions for rape of a child, involuntary deviate sexual

intercourse (“IDSI”) with a child, aggravated indecent assault of a child,

indecent assault, incest of a minor, and corruption of minors. 1    A jury

convicted Appellant of all charges on August 12, 2014.    On December 2,

2014, the court sentenced Appellant to consecutive terms of ten (10) to

twenty (20) years’ incarceration for rape of a child and IDSI with a child,

pursuant to the mandatory minimum statute at 42 Pa.C.S.A. § 9718. The

____________________________________________


1
  18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 4302(b)(1),
6301(a)(1)(ii), respectively.
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court also sentenced Appellant to a concurrent term of five (5) to ten (10)

years’ incarceration for aggravated indecent assault of a child, and

concurrent terms of one (1) to two (2) years’ incarceration for indecent

assault, incest of a minor, and corruption of minors. Appellant filed a timely

post-sentence motion on December 11, 2014.               On February 4, 2015,

Appellant filed a motion to extend the 120-day disposition period for the

post-sentence motion. The court granted a thirty-day extension. On May 7,

2015, the court denied Appellant’s post-sentence motion.           On October 20,

2015, Appellant filed a timely petition pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-9546, seeking leave to file a direct appeal nunc

pro tunc.    The court reinstated Appellant’s direct appeal rights that same

day. Appellant timely filed a notice of appeal nunc pro tunc on October 22,

2015.     The court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied.

        Recently, this Court directly addressed the constitutionality of Section

9718 in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), where

the trial court had imposed mandatory minimum sentences for multiple IDSI

convictions, pursuant to Section 9718(a)(1).        On appeal, this Court struck

down Section 9718 as facially unconstitutional.          Id. (citing Alleyne v.

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

Alleyne     applies   to   all   criminal   cases   pending   on   direct   review.

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


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          An unconstitutional statute is ineffective for any purpose
          as its unconstitutionality dates from the time of its
          enactment and not merely from the date of the decision
          holding it so. If no statutory authorization exists for a
          particular sentence, that sentence is illegal and subject to
          correction. An illegal sentence must be vacated.

Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super. 2010)

(internal citations and quotation marked omitted).

       Instantly, a jury convicted Appellant of, inter alia, one count each of

rape of a child and IDSI with a child.             At sentencing, the court applied

Section 9718 to those convictions.2            Given this Court’s binding decision in

Wolfe, however, we must vacate the judgment of sentence in its entirety

and remand for resentencing. See Commonwealth v. Bartrug, 732 A.2d

1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999)

(holding sentencing error on one count in multi-count case generally

requires sentences for all counts to be vacated so trial court can restructure

entire sentencing scheme).         Accordingly, we affirm Appellant’s convictions

but vacate the judgment of sentence and remand for resentencing without

imposition of any mandatory minimum term(s).

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.
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2
  In its opinion, the trial court incorrectly states it also applied Section 9718
to Appellant’s conviction for aggravated indecent assault of a child, which
carries a ten (10) year mandatory minimum sentence. See 42 Pa.C.S.A.
9718(a)(3). The court, however, imposed a minimum term of only five (5)
years’ incarceration for that offense.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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