J-S01037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :
              v.                           :
                                           :
CLARK KITCHELL,                            :
                                           :
                   Appellant               :             No. 2015 MDA 2015

             Appeal from the Judgment of Sentence January 9, 2013
                in the Court of Common Pleas of Luzerne County,
               Criminal Division, No(s): CP-40-CR-0001292-2011

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 28, 2017

     Clark Kitchell (“Kitchell”) appeals, nunc pro tunc, from the judgment of

sentence imposed following his conviction of involuntary deviate sexual

intercourse with a child under the age of 13. See 18 Pa.C.S.A. § 3123(b).

We vacate the judgment of sentence and remand for resentencing.

     On October 15, 2012, a jury found Kitchell guilty of the above-

mentioned     crime   for   acts   committed   against   Kitchell’s   six-year-old

stepdaughter. The trial court sentenced Kitchell to serve ten to twenty years

in prison.    Relevantly, the trial court imposed the mandatory minimum

sentence pursuant to 42 Pa.C.S.A. § 9718.        Kitchell filed a timely appeal,

challenging the competency of the victim. This Court affirmed the judgment

of sentence, and the Pennsylvania Supreme Court denied allowance of

appeal. See Commonwealth v. Kitchell, 100 A.3d 299 (Pa. Super. 2014)

(unpublished memorandum), appeal denied, 96 A.3d 1026 (Pa. 2014).
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        On May 8, 2015, Kitchell filed a timely Petition pursuant to the Post

Conviction Relief Act (“PCRA”),1 arguing that his appellate counsel was

ineffective for failing to raise a claim that his sentence was illegal regarding

the application of the mandatory minimum sentence in light of Alleyne v.

United States, 133 S. Ct. 2151 (2013), which was decided while Kitchell’s

direct appeal was pending. Based upon an agreement between Kitchell and

the Commonwealth, the PCRA court granted the Petition and reinstated

Kitchell’s direct appeal rights as to his judgment of sentence.2 Thereafter,

Kitchell filed a Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

        On appeal, Kitchell raises the following question for our review:

        Whether the trial court erred in imposing an illegal sentence in
        [Kitchell’s] case when it imposed the mandatory minimum
        [sentence,] despite the holding in [Alleyne], which had been
        decided during his direct appeal period, and held that the
        mandatory minimum was unconstitutional[?]

Brief for Appellant at 6 (capitalization omitted).

        “Issues relating to the legality of a sentence are questions of law….

Our standard of review over such questions is de novo and our scope of

review is plenary.”     Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa.

Super. 2015) (citation omitted).

1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
  See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015)
(noting that Alleyne may be applied to cases pending on collateral review
where the defendant’s judgment of sentence was not final when Alleyne
was decided).


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J-S01037-17


      Kitchell argues that the trial court’s imposition of the mandatory

minimum      sentence    under   section    9718   violated   Alleyne    and

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Brief for Appellant at

10-13.   As a result, Kitchell argues that his sentence is illegal, and he is

entitled to resentencing.    Id. at 13.    The Commonwealth agrees with

Kitchell’s argument, and concedes that the case must be remanded for

resentencing. See Commonwealth’s Letter, 11/29/16.

      In Alleyne, the Supreme Court held that any fact that increases the

sentence for a given crime must be submitted to the jury and found beyond

a reasonable doubt.     Alleyne, 133 S. Ct. at 2155.    The Supreme Court

reasoned that a Sixth Amendment violation occurs where these sentence-

determinative facts are not submitted to a jury. Id. at 2156.     In Wolfe,

the Supreme Court, relying on Alleyne, held that 42 Pa.C.S.A § 9718 “is

irremediably unconstitutional on its face, non-severable, and void.” Wolfe,

140 A.3d at 633.

      Thus, pursuant to the holdings in Alleyne and Wolfe, we conclude

that the mandatory minimum sentence imposed upon Kitchell under 42

Pa.C.S.A. § 9718(a) is illegal. Accordingly, we vacate Kitchell’s judgment of

sentence and remand this case to the trial court for resentencing, without

reference to the mandatory minimum sentencing statute.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



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J-S01037-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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