J-S40034-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
JUAN CARIDAD ARGUDIN,                    :
                                         :
                    Appellant            :     No. 84 WDA 2015

          Appeal from the PCRA Order Entered December 11, 2014,
                in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-CR-0003414-2013

BEFORE:     FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 16, 2015

     Juan Caridad Argudin (Appellant) appeals from an order which denied

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We reverse the order, vacate Appellant’s judgment

of sentence, and remand for resentencing.

     The background underlying this matter can be summarized as follows.

Appellant entered an open guilty plea to one count of delivering 3.5 grams of

cocaine, in violation of 35 P.S. § 780-113(a)(30). On July 2, 2014, the trial

court sentenced Appellant to 3 to 6 years of incarceration pursuant to the

mandatory     minimum    sentencing    provision   found     at   18   Pa.C.S.

§ 7508(a)(3)(i). Appellant did not pursue a direct appeal.

     On September 18, 2014, Appellant, pro se, timely filed his PCRA

petition. The PCRA court appointed counsel to represent Appellant. Counsel



*Retired Senior Judge assigned to the Superior Court.
J-S40034-15

later filed an amended PCRA petition wherein counsel contended that

Appellant’s mandatory minimum sentence is illegal under Alleyne v. United

State, 133 S.Ct. 2151 (2013).

       On November 19, 2014, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907 that it intended to dismiss the petition without holding an

evidentiary hearing.   The court then denied the petition on December 11,

2014. Appellant timely filed a notice of appeal.

       In his brief to this Court, Appellant asks us to consider one question,

namely, “[Whether] the [PCRA] court erred in failing to find that the

mandatory minimum sentence in the instant case constituted an illegal

sentence under Alleyne?”           Appellant’s Brief at unnumbered page 4

(unnecessary capitalization omitted).

       On appeal, Appellant renews his argument that his sentence is illegal

pursuant to Alleyne.    The Commonwealth agrees with Appellant and asks

this Court to remand the matter for resentencing.

       Alleyne was the law when Appellant was sentenced.1 We have held

that   Alleyne   renders   18   Pa.C.S.   §   7508   facially   unconstitutional.

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). Accordingly,

Appellant’s sentence is illegal.    For these reasons, we reverse the PCRA



1
 Because Alleyne was the law when Appellant was sentenced, we need not
engage in any analysis regarding whether Alleyne applies retroactively to
Appellant’s sentence.


                                      -2-
J-S40034-15

court’s order, vacate Appellant’s judgment of sentence, and remand the case

for resentencing without the application of the mandatory minimum.

      Order reversed. Judgment of sentence vacated. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/16/2015




                                     -3-
