J-S37022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

JAMES H. MILLS

                         Appellant                    No. 1803 MDA 2013


    Appeal from the Judgment of Sentence entered September 10, 2013
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No: CP-22-CR-0001318-2013


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 13, 2014

      James H. Mills appeals from the judgment of sentence entered for his

guilty plea to robbery. Appellant argues that the trial court’s imposition of a

mandatory minimum sentence is illegal under Alleyne v. United States,

133 S. Ct. 2151 (2013).       This case is controlled by this Court’s recent

decision in Commonwealth v. Valentine, 2014 PA Super 220, 2014 WL

4942256, 2014 Pa. Super. LEXIS 3420 (filed Oct. 2, 2014), which declared

unconstitutional the mandatory minimum sentencing statute used in this

case. Therefore, we are constrained to vacate and remand for resentencing.

      On January 23, 2013, Appellant approached a woman on a Harrisburg

street and demanded money.           When she told Appellant she had none,

Appellant placed an object against her back, said it was a gun, and forced

her toward an ATM machine.           Two nearby off-duty police officers foiled
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Appellant’s plan. After a brief foot chase, the officers apprehended Appellant

and discovered that his “gun” was a pair of wire snips.

       On September 10, 2013, Appellant pled guilty to one count of robbery,

graded as a first-degree felony, 18 Pa.C.S.A. § 3701(a)(1)(ii).     During the

guilty plea colloquy, Appellant admitted that a mandatory five-year sentence

applied because he committed a crime of violence while using a replica of a

firearm that placed the victim in reasonable fear of death or serious bodily

injury. See N.T., 9/10/13, at 4-7, 10. The trial court accepted the guilty

plea, and sentenced Appellant to five to ten years in prison, applying the

mandatory minimum sentence at 42 Pa.C.S.A. § 9712(a) requested by the

Commonwealth. This appeal followed.

       Appellant raises one issue for our review:

       Whether the trial court erred in imposing a mandatory minimum
       sentence pursuant to 42 Pa.C.S.A. § 9712, since, under the
       United States Supreme Court’s ruling in Alleyne v. United
       States, 133 S. Ct. 2151 (2013), imposing a mandatory
       minimum      sentence    under     42   Pa.C.S.A.  § 9712   is
       unconstitutional?

Appellant’s Brief at 4 (typeface altered).       Although Appellant admitted to

using wire snips to simulate a firearm, he argues that § 9712 is facially

unconstitutional.1 We agree, as Valentine, supra, is directly on-point.


____________________________________________


1
  A challenge to the legality of a sentence is a question of law, which we
review de novo. Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa.
Super. 2013).
(Footnote Continued Next Page)


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      Valentine applies Alleyne, in which the Supreme Court of the United

States held:

      [a]ny fact that, by law, increases the penalty for a crime is an
      “element” that must be submitted to the jury and found beyond
      a reasonable doubt. Mandatory minimum sentences increase the
      penalty for a crime. It follows, then, that any fact that increases
      the mandatory minimum is an “element” that must be submitted
      to the jury.

Alleyne, 133 S. Ct. at 2155 (internal citation omitted).           Alleyne is

grounded in the Sixth Amendment right to a jury trial.        Id. at 2163-64

(holding that the use of judge-found facts violated the defendant’s Sixth

Amendment rights).

      This Court has struggled to apply Alleyne, because many of

Pennsylvania’s mandatory minimum sentencing statutes include language

now found to be unconstitutional. See Commonwealth v. Watley, 81 A.3d

108, 117 (Pa. Super. 2013) (en banc) (dicta) (“[Alleyne], therefore,

renders those Pennsylvania mandatory minimum sentencing statutes that do

not pertain to prior convictions constitutionally infirm insofar as they permit
                       _______________________
(Footnote Continued)

Appellant did not challenge the legality of his sentence before the trial
court—even though his guilty plea and sentencing date occurred three
months after Alleyne was decided.            We must nevertheless address
Appellant’s contention, because a challenge to the application of a
mandatory minimum sentence—including a challenge under Alleyne—is a
non-waivable challenge to the legality of the sentence. Commonwealth v.
Thompson, 93 A.3d 478, 494 (Pa. Super. 2014). But cf. Commonwealth
v. Johnson, 93 A.3d 806, 806 (Pa. 2014) (granting allocatur to consider,
inter alia, “[w]hether challenge to a sentence pursuant to [Alleyne]
implicates the legality of the sentence and is therefore non-waivable”).



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a judge to automatically increase a defendant’s sentence based on a

preponderance of the evidence standard.”) (footnote omitted).                The

sentencing statute in this case is an example:

       (a) Mandatory sentence.--Except as provided under [42
       Pa.C.S.A. §] 9716 (relating to two or more mandatory minimum
       sentences applicable), any person who is convicted in any court
       of this Commonwealth of a crime of violence as defined in [id.
       §] 9714(g) (relating to sentences for second and subsequent
       offenses), shall, if the person visibly possessed a firearm or a
       replica of a firearm, whether or not the firearm or replica was
       loaded or functional, that placed the victim in reasonable fear of
       death or serious bodily injury, during the commission of the
       offense, be sentenced to a minimum sentence of at least five
       years of total confinement notwithstanding any other provision
       of this title or other statute to the contrary. Such persons shall
       not be eligible for parole, probation, work release or furlough.

       (b) Proof at sentencing.--Provisions of this section shall not
       be an element of the crime and notice thereof to the defendant
       shall not be required prior to conviction, but reasonable notice of
       the Commonwealth’s intention to proceed under this section
       shall be provided after conviction and before sentencing. The
       applicability of this section shall be determined at sentencing.
       The court shall consider any evidence presented at trial and shall
       afford the Commonwealth and the defendant an opportunity to
       present any necessary additional evidence and shall determine,
       by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9712 (subsections (c)-(e) omitted).

       In Commonwealth v. Newman, 2014 PA Super 178, 2014 WL

4088805, at *15, 2014 Pa. Super. LEXIS 2871, at *40 (filed Aug. 20, 2014)

(en banc), we declared 42 Pa.C.S.A. § 9712.12 wholly unconstitutional. In
____________________________________________


2
  42 Pa.C.S.A. § 9712.1 required a five-year mandatory minimum sentence
for drug trafficking crimes committed while in actual or constructive
possession of a firearm in close proximity to the drugs.



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Newman, we we found that the “enforcement arm” of the statute, 42

Pa.C.S.A. § 9712.1(c), was inseparable from the “predicate arm,” 42

Pa.C.S.A. § 9712.1(a), which delineated the facts triggering the mandatory

sentence.   Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super. LEXIS

2871, at *31-33. Thus, because the inseparable enforcement arm violated

Alleyne, we found the entire statute unconstitutional. Id., 2014 Pa. Super.

LEXIS 2871, at *31-33.

      Valentine extends Newman to the statute at issue here, 42

Pa.C.S.A. § 9712, which has an identical “enforcement arm” as § 9712.1.

Valentine, 2014 WL 4942256, at *7-8, 2014 Pa. Super. LEXIS 3420, at

*17-21. Moreover, Valentine rejects the harmless error analysis employed

in Watley that saved the imposition of a mandatory sentence in that case.

Id. at *9 n.4, 2014 Pa. Super. LEXIS 3420, at *23 n.9 (acknowledging

Watley, but adhering “to our decision in Newman which concluded that the

entirety of the mandatory minimum sentencing statute must be stricken as

unconstitutional”).

      In Valentine, the defendant received a five-year mandatory sentence

because he robbed a woman at gunpoint on a city bus. Valentine, 2014 WL

4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *2-3. At his trial, the jury,

through special interrogatories, found the facts necessary to trigger




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application of 42 Pa.C.S.A. §§ 9712 and 9173.3                 Valentine, 2014 WL

4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *3-4. Even though the jury

found beyond a reasonable doubt the triggering facts, we held that the

mandatory      sentences     could    not      be   applied.   Rather,   the   statutes

implementing the mandatory sentence were wholly unconstitutional:

       Here, the trial court permitted the jury, on the verdict slip, to
       determine beyond a reasonable doubt whether Appellant
       possessed a firearm that placed the victim in fear of immediate
       serious bodily injury in the course of committing a theft for
       purposes of the mandatory minimum sentencing provisions of 42
       Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or
       in part at or near public transportation, for purposes of the
       mandatory minimum sentencing provisions of 42 Pa.C.S.A.
       § 9713(a). The jury responded “yes” to both questions. In
       presenting those questions to the jury, however, we conclude, in
       accordance with Newman, that the trial court performed an
       impermissible legislative function by creating a new procedure in
       an effort to impose the mandatory minimum sentences in
       compliance with Alleyne.

       The trial court erroneously presupposed that only Subsections
       (c) of both 9712 and 9713 (which permit a trial judge to
       enhance the sentence based on a preponderance of the evidence
       standard) were unconstitutional under Alleyne, and that
       Subsections (a) of 9712 and 9713 survived constitutional
       muster. By asking the jury to determine whether the factual
       prerequisites set forth in § 9712(a) and § 9713(a) had been
       met, the trial court effectively determined that the
       unconstitutional provisions of § 9712(c) and § 9713(c) were
       severable. Our decision in Newman however holds that the
       unconstitutional provisions of § 9712(c) and § 9713(c) are not
       severable but “essentially and inseparably connected” and that
____________________________________________


3
  42 Pa.C.S.A. § 9713 required a five-year mandatory minimum sentence for
crimes of violence committed in or near public transportation. Section 9713
contains an identical “enforcement arm” as §§ 9712 and 9712.1.



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      the statutes are therefore unconstitutional as a whole.
      [Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super.
      LEXIS 2871, at *34-35]. (“If Subsection (a) is the predicate arm
      . . . then Subsection (c) is the enforcement arm.        Without
      Subsection (c), there is no mechanism in place to determine
      whether the predicate of Subsection (a) has been met.”).

                                        ***

      Because Alleyne and Newman render §§ 9712 and 9713
      unconstitutional, we vacate the judgment of sentence and
      remand for the re-imposition of sentence without consideration
      of any mandatory minimum sentence as provided by §§ 9712
      and 9713.

Id. at *8-9.

      Valentine applies to Appellant’s case.         First, it applies because

Appellant’s judgment of sentence is not final, and the general rule is to apply

the law in effect at the time of the appellate decision. Commonwealth v.

Housman, 986 A.2d 822, 840 (Pa. 2009).            Second, a statute declared

unconstitutional is generally void ab initio.   “An unconstitutional statute is

ineffective for any purpose since its unconstitutionality dates from the time

of its enactment and not merely from the date of the decision holding it so.”

Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa. Super. 1996)

(quoting Commonwealth v. Brown, 431 A.2d 905, 907-08 (Pa. 1981));

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

(vacating      a   conviction   under    18   Pa.C.S.A.   § 4119   (trademark

counterfeiting), because the statute was declared unconstitutional after the

date of conviction).

      Because § 9712 is void, there is no statutory authorization for the

mandatory minimum sentence imposed here. “If no statutory authorization

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exists for a particular sentence, that sentence is illegal and subject to

correction.”    Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super.

2013) (quotation omitted); see also Commonwealth v. Randal, 837 A.2d

1211, 1214 (Pa. Super. 2003) (en banc) (concluding that a Supreme Court

decision declaring unconstitutional ignition interlock law required vacation of

defendant’s     sentence,    even     though     defendant   was   sentenced   before

declaration of unconstitutionality). We recognize that Appellant admitted the

fact triggering § 9712 and conceded that it applied, but a defendant cannot

agree to serve an illegal sentence. Commonwealth v. Gentry, --- A.3d ---

, 2014 PA Super 219 2014 WL 4942271, at *4, 2014 Pa. Super. LEXIS 3421,

at *12 (filed Oct. 3, 2014) (“Our cases clearly state that a criminal

defendant cannot agree to an illegal sentence, so the fact that the illegality

was a term of his plea bargain is of no legal significance.”).

       In light of Valentine, 42 Pa.C.S.A. § 9712 is void, and no statutory

basis exists to sentence Appellant to a mandatory minimum of five years in

prison.     Accordingly, we vacate Appellant’s sentence and remand for

resentencing without consideration of § 9712.4

____________________________________________


4
  The unconstitutionality of § 9712 does not affect the trial court’s discretion
to impose any other lawful sentence. See Alleyne, 133 S. Ct. at 2163 (“We
have long recognized that broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.”); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting
that Alleyne does not affect a trial court’s ability to deviate from the
Sentencing Guidelines).



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      Judgment of sentence vacated.   Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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