J-S24012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DAESEAN BERNARD SMITH

                        Appellant                 No. 2318 EDA 2014


           Appeal from the Judgment of Sentence April 21, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0004021-2013


BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JULY 08, 2015

     Appellant, Daesean Bernard Smith, appeals from the judgment of

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

open guilty plea to burglary, conspiracy to commit burglary, two counts of

robbery, two counts of conspiracy to commit robbery, four counts of

kidnapping for ransom, four counts of conspiracy to commit kidnapping for

ransom, four counts of kidnapping to facilitate a felony, four counts of

conspiracy to commit kidnapping to facilitate a felony, criminal attempt

(theft), conspiracy to commit theft, criminal attempt (theft by extortion),

conspiracy to commit theft by extortion, four counts of false imprisonment,

four counts of conspiracy to commit false imprisonment, persons not to
J-S24012-15


possess firearms, and possessing instruments of crime.1               We affirm

Appellant’s convictions but vacate and remand for resentencing.

       In its opinion, the trial court set forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.2

       Appellant raises two issues for our review:

          WHETHER THE TRIAL COURT ERRED IN DENYING
          [APPELLANT] THE RIGHT TO WITHDRAW HIS GUILTY
          PLEA?

          WHETHER THE TRIAL COURT DENIED [APPELLANT] OF HIS
          RIGHT TO [A] FAIR TRIAL?

(Appellant’s Brief at 4).3


____________________________________________


1
  18 Pa.C.S.A. §§ 3502(a)(1); 903 (3502(a)(1) related); 3701(a)(1)(ii) and
(a)(1)(iii); 903 (3701(a)(1)(ii) and (a)(1)(iii) related); 2901(a)(1); 903
(2901(a)(1) related); 2901(a)(2); 903 (2901(a)(2) related); 901 (3921
related); 903 (3921 related); 901 (3923 related); 903 (3923 related); 2903;
903 (2903 related); 6105; 907, respectively.
2
  The correct citations for the statutes for the offenses of kidnapping of a
minor for ransom and kidnapping of a minor to facilitate a felony are 18
Pa.C.S.A. § 2901(a.1)(1) and 18 Pa.C.S.A. § 2901(a.1)(2), respectively.
The Commonwealth initially charged Appellant with these crimes at six
counts but requested the court to enter nolle prosequi as to these six counts
(not seven counts, as stated in the court’s opinion) prior to Appellant’s guilty
plea.   Additionally, the Commonwealth did not charge Appellant with
conspiracy to commit persons not to possess firearms or conspiracy to
commit possessing instruments of crime, and Appellant did not plead guilty
to those crimes.
3
  Appellant makes no separate argument as to his second issue on appeal.
Instead, Appellant contends that the court’s denial of his motion to withdraw
his guilty plea also deprived Appellant of his right to a full and fair trial.
Thus, we address Appellant’s issues together.



                                           -2-
J-S24012-15


      “At any time before the imposition of sentence, the court may, in its

discretion, permit, upon motion of the defendant, or direct, sua sponte, the

withdrawal of a plea of guilty or nolo contendere and the substitution of a

plea of not guilty.” Pa.R.Crim.P 591(A). Although there is no absolute right

to withdraw a guilty plea, properly received by the trial court, a pre-sentence

request should be liberally allowed.   Commonwealth v. Forbes, 450 Pa.

185, 190, 299 A.2d 268, 271 (1973). “If the trial court finds ‘any fair and

just reason’, withdrawal of the plea before sentence should be freely

permitted, unless the prosecution has been ‘substantially prejudiced.’” Id.

at 191, 299 A.2d at 271.    Our Supreme court recently modified what had

been increasingly interpreted as a bright-line rule regarding pre-sentence

requests to withdraw a plea:

         Presently, we are persuaded by the approach of other
         jurisdictions which require that a defendant’s innocence
         claim must be at least plausible to demonstrate, in and of
         itself, a fair and just reason for presentence withdrawal of
         a plea.       …     More broadly, the proper inquiry on
         consideration of such a withdrawal motion is whether the
         accused has made some colorable demonstration, under
         the circumstances, such that permitting withdrawal of the
         plea would promote fairness and justice. The policy of
         liberality remains extant but has its limits, consistent with
         the affordance of a degree of discretion to the common
         pleas courts.

Commonwealth v. Carrasquillo, ___ A.3d ___, 2015 WL 3684430 at *8

(Pa. June 15, 2015) (holding there is no per se rule regarding pre-sentence

requests to withdraw pleas; court should consider plausibility, sincerity,

motivation, and timing of request; courts must also consider whether

                                     -3-
J-S24012-15


allowing withdrawal of plea will prejudice Commonwealth).         Thus, the

decision to allow or deny a pre-sentence motion to withdraw a guilty plea

rests within the sound discretion of the trial court absent substantial

prejudice to the Commonwealth. See generally id.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Albert J.

Cepparulo, we conclude Appellant’s issues merit no relief.    The trial court

opinion discusses and properly disposes of the questions presented.     (See

Trial Court Opinion, filed September 5, 2014, at 10-15) (finding: Appellant’s

assertion of innocence was questionable; court believed Appellant engaged

in contrived plot to withdraw guilty plea as direct result of learning that

Commonwealth’s key witness/victim (Ms. Gasden) had died and would be

unavailable to testify at trial;4 record showed Appellant possessed ulterior

motive for request to withdraw guilty plea; further, permitting Appellant to

withdraw his plea would substantially prejudice Commonwealth; Ms. Gasden

died after Appellant had entered guilty plea and Appellant was aware of this

fact; Ms. Gasden was very cooperative with police throughout investigation,

and Commonwealth had total confidence in her testimony; defense intended

____________________________________________


4
  Appellant pled guilty on October 22, 2013. Ms. Gasden died on December
6, 2013.     On December 17, 2013, the date originally scheduled for
sentencing, Appellant made an oral motion to withdraw his guilty plea.
Appellant admitted he learned of Ms. Gasden’s death before moving to
withdraw his plea.



                                           -4-
J-S24012-15


to challenge at trial credibility of other witness/victim, Ms. Jones, as actually

having participated in hostage events (not victim of hostage events); Ms.

Gasden is now unavailable to corroborate Ms. Jones’ account of events; due

to overwhelming prejudice to Commonwealth, denial of Appellant’s motion to

withdraw plea, made for first time at initially scheduled sentencing hearing,

was proper under facts of case). Accordingly, we affirm the court’s denial of

Appellant’s pre-sentence motion to withdraw his guilty plea on the basis of

the trial court’s opinion.

      Nevertheless, we are mindful of the United States Supreme Court’s

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013), in which the Court expressly held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt. Id. Here, the court imposed a mandatory minimum ten

(10) year sentence for Appellant’s burglary conviction under 42 Pa.C.S.A. §

9714 (sentences for second and subsequent offenses), and a mandatory

minimum five (5) year sentence for one of Appellant’s first-degree robbery

convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed

with firearms). Consequently, we elect to review the legality of Appellant’s

sentence sua sponte.         See Commonwealth v. Edrington, 780 A.2d 721

(Pa.Super.   2001)    (explaining    challenge   to   application   of   mandatory

minimum sentence is non-waiveable challenge to legality of sentence, which


                                       -5-
J-S24012-15


this Court can raise sua sponte, assuming jurisdiction is proper).

        Section 9714 sets forth a mandatory minimum sentence of ten (10)

years’ imprisonment where a defendant has previously been convicted of a

crime of violence.      See 42 Pa.C.S.A. § 9714(a).     Section 9714(d) of this

statute states that its provisions shall not be an element of the crime and

applicability of the statute shall be determined by the court at sentencing by

a preponderance of the evidence.          42 Pa.C.S.A. § 9714(d).   Section 9712

sets forth a mandatory minimum sentence of five (5) years’ imprisonment

where a defendant has been convicted of a crime of violence if the person

visibly possessed a firearm or a replica of a firearm that placed the victim in

reasonable fear of death or serious bodily injury during the commission of

the offense. See 42 Pa.C.S.A. § 9712(a). Section 9712(b) of this statute

states that its provisions shall not be an element of the crime and

applicability of the statute shall be determined by the court at sentencing by

a preponderance of the evidence. 42 Pa.C.S.A. § 9712(b).

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

banc), this Court addressed the constitutionality of a mandatory minimum

sentencing statute containing language similar to Section 9714(d) and

Section 9712(b).     Relying on Alleyne, Newman held that Section 9712.1

(sentences for certain drug offenses committed with firearms) can no longer

pass constitutional muster as it “permits the trial court, as opposed to the

jury,   to   increase   a   defendant’s    minimum    sentence   based   upon   a


                                          -6-
J-S24012-15


preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at 98.             This Court further held that the subsections of

Section 9712.1       are    so   “essentially    and   inseparably   connected”   that

severance of the statute is not possible, rendering the entire statute

unconstitutional. Id. at 102. Thus, this Court vacated Newman’s sentence

for possession of a controlled substance with the intent to deliver and

remanded for resentencing without imposition of the mandatory minimum

under Section 9712.1.5 See also Commonwealth v. Valentine, 101 A.3d

801 (Pa.Super. 2014) (extending logic of Alleyne and Newman to Sections

9712 and 9713 and holding those sections are likewise unconstitutional

insofar as they permit automatic increase of defendant’s sentence based on

preponderance of evidence standard).

       The Alleyne Court carved out a narrow exception where a defendant’s

prior conviction is the “fact” triggering application of a mandatory minimum

sentence. Alleyne, supra at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at

___ n.1. See also Commonwealth v. Reid, ___ A.3d ___, 2015 PA Super

135 (filed June 9, 2015) (explaining Alleyne did not overturn prior

precedent that prior convictions are sentencing factors and not elements of
____________________________________________


5
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable only to criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
appeal, the holding in Alleyne applied.



                                           -7-
J-S24012-15


offenses; because Section 9714 provides mandatory minimum sentences

based on prior convictions, that statute is not unconstitutional under

Alleyne; court’s imposition of mandatory minimum sentence under Section

9714 was lawful); Commonwealth v. Miller, 102 A.3d 988, 995 n.5

(Pa.Super. 2014) (explaining fact of prior conviction does not need to be

submitted to fact-finder and found beyond reasonable doubt; Alleyne does

not prohibit mandatory minimum sentence based on fact of prior conviction).

      In this case, the court imposed a ten (10) year mandatory minimum

sentence for Appellant’s burglary conviction under 42 Pa.C.S.A. § 9714

(sentences for second and subsequent offenses), and a five (5) year

mandatory minimum sentence for one of Appellant’s first-degree robbery

convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed

with firearms).   With respect to Appellant’s mandatory minimum sentence

for his burglary conviction, the record shows Appellant had a prior conviction

for first-degree robbery in October 2009, for which Appellant received a

sentence of three and one-half (3½) to seven (7) years’ imprisonment, plus

four (4) years’ probation.   Because the court imposed the ten (10) year

mandatory minimum sentence based on Appellant’s prior conviction of a

crime of violence, the court’s imposition of the mandatory minimum

sentence under 42 Pa.C.S.A. § 9714 was lawful.         See Alleyne, supra;

Reid, supra; Miller, supra.     See also 42 Pa.C.S.A. § 9714(g) (defining

first-degree robbery as “crime of violence” for purposes of statute).


                                     -8-
J-S24012-15


       Regarding the mandatory minimum sentence related to Appellant’s

robbery conviction,6 the record makes clear Appellant possessed a gun

throughout the events at issue.                Specifically, Appellant and one of his

cohorts held the victims hostage at gunpoint for approximately nine hours

during the evening of April 21, 2013 into the morning of April 22, 2013; on

the morning of April 22, 2013, Appellant and his cohorts forced one of the

victims to attempt to withdraw approximately $80,000.00 from a PNC Bank.

Notwithstanding Appellant’s guilty plea to these events, based on this

Court’s decision in Newman and its progeny that Section 9712 is

unconstitutional in its entirety, the trial court’s imposition of the mandatory

minimum sentence under that statute was unlawful. See Newman, supra;

Valentine, supra.        Accordingly, we affirm Appellant’s convictions, but we

vacate the judgment of sentence and remand for resentencing without

imposition of the mandatory minimum sentence under 42 Pa.C.S.A. § 9712.

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.


____________________________________________


6
   The court imposed the mandatory minimum sentence for Appellant’s
robbery conviction at Count 3.          See 18 Pa.C.S.A. § 3701(a)(1)(ii)
(explaining person is guilty of robbery if, in course of committing theft, he
threatens another with or intentionally puts him in fear of immediate serious
bodily injury). This first-degree robbery conviction constitutes a “crime of
violence” for purposes of Section 9712.         See 42 Pa.C.S.A. § 9712(a)
(referring to Section 9714(g) for definition of crimes which constitute crimes
of violence). See also 42 Pa.C.S.A. § 9714(g).



                                           -9-
J-S24012-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




                          - 10 -
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
Circulated 06/17/2015 02:42 PM
