J-S14006-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
TITO GARCIA,                             :
                                         :
                 Appellant               : No. 2844 EDA 2013

           Appeal from the Judgment of Sentence June 4, 2013,
              Court of Common Pleas, Philadelphia County,
            Criminal Division at No. CP-51-CR-0003693-2011

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED MAY 15, 2015

     Tito Garcia (“Garcia”) appeals from the June 4, 2013 judgment of

sentence entered by the Philadelphia County Court of Common Pleas.        On

appeal, he challenges the trial court’s application of the mandatory minimum

sentence contained in 18 Pa.C.S.A. § 7508 as unconstitutional. After careful

review, we vacate the sentence and remand for resentencing.

     The record reflects the following relevant facts and procedural history.

On March 12, 2011, police observed Garcia sell marijuana and/or cocaine to

three separate people.       The marijuana was contained in small plastic

containers and the cocaine was packaged in small clear packets. As marked

police cars approached Garcia, he ran and the police gave chase. Following

his arrest, police recovered thirteen plastic containers containing marijuana

approximately ten feet from the location of Garcia’s arrest and a plastic bag
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containing clear packets of cocaine from a location where police observed

Garcia discard something during the chase.

       On April 8, 2013, Garcia filed a precautionary motion to bar the

application of the mandatory minimum sentencing statute, 18 Pa.C.S.A.

§ 7508, in anticipation of the United States Supreme Court’s decision in

Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013).1 See Motion to Bar

Application of Mandatory Minimum Sentence, 4/8/13, ¶¶ 1, 8, 10. Following

argument on April 8, 2013, the trial court denied the motion.

       On April 16, 2013, a jury convicted Garcia of two counts of possession

of a controlled substance with intent to deliver (“PWID”).2 On June 4, 2013,

the trial court sentenced Garcia on the drug convictions to four to eight

years of incarceration followed by three years of probation.        As Garcia’s

conviction resulted in a violation of his probation, the trial court revoked his

probation and resentenced him to two to four years of incarceration followed

by three years of probation, to run consecutive to the sentence for his drug

convictions.

       Garcia filed a timely post-sentence motion seeking reconsideration of

his sentence, alleging that the sentence was “manifestly excessive, clearly

unreasonable and disproportionate under the facts and circumstances of the




1
    The United States Supreme Court decided Alleyne on June 17, 2013.
2
    35 P.S. § 780-113(a)(30).


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case.”   Motion to Reconsider Sentence, 6/12/13, ¶ 6.         The motion was

denied by operation of law on October 10, 2013.

      Garcia filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal. Thereafter, the trial

court issued a responsive opinion pursuant to Pa.R.A.P. 1925(a).

      On appeal, Garcia raises three issues for our review:

         1. Is not 18 Pa.C.S.A. §7508, which establishes
            mandatory minimum sentences for various drug
            trafficking offenses, unconstitutional under Alleyne v.
            United States, 133 S.Ct. 2151 (2013), as it requires
            imposition of aggravated sentences based on a
            judge’s finding at sentencing of certain predicate
            facts by a preponderance of the evidence?

         2. Is not 18 Pa.C.S.A. §7508 wholly void and
            unenforceable under Commonwealth v. Newman, [99
            A.3d 86 (Pa. Super. 2014) (en banc)], as the
            statute’s unconstitutional procedural provisions
            cannot be severed from the remaining provisions of
            the statute?

         3. Even assuming arguendo that §7508 were severable,
            is not the Commonwealth barred by state and
            federal constitutional double jeopardy protections
            from invoking that statute again at resentencing,
            where at the original sentencing it introduced
            insufficient evidence, even by a preponderance
            standard, to prove the aggravated offense set out in
            §7508, that is, possession with intent to deliver
            between two and ten grams of cocaine?

Garcia’s Brief at 3.3




3
  Based upon our disposition of the first two issues raised by Garcia, we
need not address the third issue.


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        The first two interrelated issues Garcia raises on appeal challenge the

legality of his sentence. See Commonwealth v. Cardwell, 105 A.3d 748,

750 (Pa. Super. 2014) (“issues pertaining to Alleyne go directly to the

legality of the sentence”). “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.” Id. (citation and formatting omitted).

        We begin with a brief discussion of the law underlying the issues

raised. The sentencing statute in question, section 7508, states, in relevant

part:

             (a) General rule.--Notwithstanding any other
             provisions of this or any other act to the contrary,
             the following provisions shall apply:

                                     *    *  *
                (2) A person who is convicted of violating section
                13(a)(14), (30) or (37) of The Controlled
                Substance, Drug, Device and Cosmetic Act where
                the controlled substance or a mixture containing it
                is classified in Schedule I or Schedule II under
                section 4 of that act and is a narcotic drug shall,
                upon conviction, be sentenced to a mandatory
                minimum term of imprisonment and a fine as set
                forth in this subsection:

                   (i) when the aggregate weight of the
                   compound or mixture containing the substance
                   involved is at least 2.0 grams and less than ten
                   grams; two years in prison and a fine of
                   $5,000 or such larger amount as is sufficient to
                   exhaust the assets utilized in and the proceeds
                   from the illegal activity; however, if at the time
                   of sentencing the defendant has been
                   convicted of another drug trafficking offense:
                   three years in prison and $10,000 or such



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                     larger amount as is sufficient to exhaust the
                     assets utilized in and the proceeds from the
                     illegal activity[.]

                                          * *      *
               (b) Proof of sentencing.--Provisions of this section
               shall not be an element of the crime. Notice of the
               applicability of this section 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 evidence presented at trial, shall afford the
               Commonwealth and the defendant an opportunity to
               present necessary additional evidence and shall
               determine, by a preponderance of the evidence, if
               this section is applicable.

18 Pa.C.S.A. § 7508(a)(2)(i), (b).

          On June 17, 2013, the United States Supreme Court decided Alleyne

v. U.S., wherein it held that “facts that increase mandatory minimum

sentences must be submitted to the jury.” Alleyne, 133 S.Ct. at 2163. On

November 25, 2014, in Commonwealth v. Cardwell this Court held that

pursuant to Alleyne, section 7508 was facially unconstitutional in its

entirety. Cardwell, 105 A.3d at 754-55.

          Turning to the case at bar, the trial court states that Garcia did not

receive a mandatory minimum sentence, and thus, Garcia is not entitled to

relief:

               [T]his was not a mandatory minimum sentence that
               was influenced by the weight of narcotics. Had this
               been a mandatory minimum sentence, [Garcia]
               would have been subject to [three] to [six] years



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           rather than the [four] to [eight] years he actually
           received.    This court aggravated the sentence
           because of [Garcia]’s prior record and complete lack
           of remorse. Since the mandatory minimum sentence
           was not even implemented, it cannot be argued that
           this court determined an element in order to reach
           the mandatory minimum. Instead, this court went
           above that minimum because of several other
           factors.

Trial Court Opinion, 6/13/14, at 8.        The trial court further asserts that

Alleyne is inapplicable because Garcia stipulated that all of the cocaine

recovered by police tested positive for narcotics. This evidence included the

weight of the narcotics recovered, and the jury found beyond a reasonable

doubt that Garcia possessed the cocaine with the intent to deliver it. Id. at

9.   As such, the trial court concluded that because it did not make a

determination regarding the weight of the cocaine – the jury made this

determination beyond a reasonable doubt – the sentence should not be

disturbed. Id.

      Garcia   contends   that   the   trial   court   absolutely   employed   the

mandatory minimum sentence in section 7508 when fashioning his sentence.

Garcia states that the court used it “as its starting point,” and then

sentenced Garcia to additional time in excess of the minimum sentence

based on other considerations.     Garcia’s Reply Brief at 2.       Garcia further

denies that he stipulated to the weight of the drugs or that the

Commonwealth presented any evidence of the weight of the drugs

recovered. Garcia’s Brief at 13 & n.6.



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      Although the trial court did not specify that it was utilizing the

mandatory    minimum     sentence   contained    in   section   7508(a)(2)(i)   in

fashioning Garcia’s sentence, the record reflects that it did.     Prior to trial,

Garcia filed a motion seeking to bar consideration of section 7508 at

sentencing, which the trial court denied. N.T., 4/8/13, at 8. At sentencing,

it is clear that both parties were operating under the assumption that the

mandatory minimum sentence was in play – the Commonwealth presented

evidence that the cocaine seized weighed over two grams and Garcia

requested that the trial court not go above the mandatory minimum

sentence of three to six years. N.T., 6/4/13, at 6-7. The trial court did not

make a specific finding at sentencing regarding the weight of the cocaine in

Garcia’s possession, but, as it states in its written opinion, it did not believe

it needed to because of its conclusion that the weight of the cocaine was

proven at trial. See Trial Court Opinion, 6/13/14, at 9.

      The law requires the trial court to consider the sentencing guidelines

when sentencing a criminal defendant. 42 Pa.C.S.A. § 9721(b); see 204 Pa.

Code § 303.16(a).     If the trial court imposes a sentence outside of the

guidelines, it must “provide a contemporaneous written statement of the

reason or reasons for the deviation from the guidelines[.]” 42 Pa.C.S.A. §

9721(b). However, “[w]hen the guideline range is lower than that required

by a mandatory sentencing statute, the mandatory minimum requirement

supersedes the sentence recommendation.” Commonwealth v. Diamond,



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945 A.2d 252, 260 n.10 (Pa. Super. 2008) (quoting 204 Pa. Code §

303.9(h)). The record reflects that at sentencing, the trial court made no

mention of the sentencing guidelines, and despite sentencing Garcia in

excess   of   the   guideline   range,4    the   trial   court   did   not   provide   a

contemporaneous written statement for its reason for deviating from the

sentencing guidelines in the record.

       Moreover, at the time of Garcia’s sentencing, Garcia’s sentence would

have been illegal if the trial court had not sentenced Garcia pursuant to

section 7508:

              (c) Mandatory sentencing.--There shall be no
              authority in any court to impose on an offender to
              which this section is applicable a lesser sentence
              than provided for herein or to place the offender on
              probation, parole or work release or to suspend
              sentence. Nothing in this section shall prevent the
              sentencing court from imposing a sentence greater
              than    provided   herein.    Sentencing   guidelines
              promulgated by the Pennsylvania Commission on
              Sentencing shall not supersede the mandatory
              sentences provided herein. Disposition under section
              17 or 18 of The Controlled Substance, Drug, Device
              and Cosmetic Act shall not be available to a
              defendant to which this section applies.

              (d) Appellate review.--If a sentencing court
              refuses to apply this section where applicable, the
              Commonwealth shall have the right to appellate
              review of the action of the sentencing court. The
              appellate court shall vacate the sentence and
              remand the case to the sentencing court for
              imposition of a sentence in accordance with this



4
    See 204 Pa. Code § 303.16(a).


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            section if it finds that the sentence was imposed in
            violation of this section.

18 Pa.C.S.A. § 7508(c)-(d) (footnote omitted).

      Based upon our review of the record and the law, we conclude that the

trial court applied the mandatory minimum sentence in section 7508(a)(2)(i)

when sentencing Garcia.    Simply because the trial court did not sentence

Garcia to the precise term of years called for in section 7508(a)(2)(i),

instead sentencing him to a longer term of incarceration, does not mean that

the court did not sentence Garcia pursuant to section 7508.          Section

7508(c), quoted above, expressly permits the trial court to impose a

sentence greater than the mandatory minimum sentence provided in the

statute.   See 18 Pa.C.S.A. § 7508(c).      Thus, although the trial court

imposed a lengthier sentence than the mandatory minimum called for, it

nonetheless sentenced Garcia pursuant to section 7508(a)(2)(i), rendering

Garcia’s sentence illegal based upon Cardwell and Alleyne.

      The learned Dissent contends that this is a challenge to the

discretionary aspects of Garcia’s sentence, not a question of the legality of

his sentence, as the trial court had the authority to impose the sentence it

did when it sentenced Garcia.     Diss. at 2-3.   We respectfully disagree.

Although Alleyne was not decided at the time the trial court imposed

Garcia’s sentence, this Court, sitting en banc, has held that Alleyne applies

retroactively and has treated questions on appeal involving the retroactive




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application of Alleyne as a legality of sentencing issue.     See Newman,

99 A.3d at 90.

       Furthermore, the fact that the sentence imposed is less than the

statutory maximum does not render this a legal sentence.       See Diss. at 3

n.2.   In Newman, for example, a case decided nearly a year before

Alleyne, the trial court sentenced the defendant to the then-legal

mandatory minimum sentence in 42 Pa.C.S.A. § 9712.1 for his PWID cocaine

conviction.5 Newman, 99 A.3d at 89. Although the defendant’s five-to-ten-

year term of imprisonment did not exceed the statutory maximum sentence

permitted,6 see id., this Court found that the defendant’s sentence was

illegal because the trial court sentenced him pursuant to section 9712.1 and

that the statute violated the dictates of Alleyne.7 Id. at 103. Thus, while



5
    This statute provides: “Any person who is convicted of a violation of
[35 P.S. 780-113(a)(30)], known as The Controlled Substance, Drug, Device
and Cosmetic Act, when at the time of the offense the person or the person’s
accomplice is in physical possession or control of a firearm, whether visible,
concealed about the person or the person’s accomplice or within the actor’s
or accomplice’s reach or in close proximity to the controlled substance, shall
likewise be sentenced to a minimum sentence of at least five years of total
confinement.” 42 Pa.C.S.A. § 9712.1(a).
6
  Pursuant to 35 P.S. § 780-113(f)(1.1), the maximum sentence for PWID
cocaine is ten years of incarceration.
7
   Specifically, this Court found section 9712.1 unconstitutional because “[i]t
permits the trial court, as opposed to the jury, to increase a defendant’s
minimum sentence based upon a 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,” in violation of Alleyne. Newman, 99 A.3d
at 98.


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the Dissent is correct that Garcia’s sentence was lawful at the time of his

sentencing, it is nonetheless illegal now and must be vacated as a result.

See Commonwealth v. Thompson, 106 A.3d 742, 759 (Pa. Super. 2014)

(“An illegal sentence must be vacated.”).8

      Additionally, we note that although the defendant stipulated at trial to

the weight of the drugs, in Cardwell this Court held that this does not

remove the case from the ambit of Alleyne. Like Garcia, the defendant in

Cardwell stipulated at trial to the weight of the drugs recovered.

Cardwell, 105 A.3d at 754. The trial court in Cardwell concluded that the

Commonwealth proved the weight of the drugs beyond a reasonable doubt,

alleviating any Alleyne-related problem.     Id.   On appeal, we disagreed,

stating that section 7508(b) was not severable from the rest of the statute.

Id.   Further, relying on this Court’s prior decisions in Newman9 and




8
   We note that Alleyne is inapplicable to questions concerning a judicially
decided fact that elevated the sentence beyond the statutory maximum.
Rather, such cases are governed by Apprendi v. New Jersey, 530 U.S.
466 (2000), wherein the United States Supreme Court held: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490.
9
    In Newman, we rejected the Commonwealth’s suggestion that we
remand for a sentencing jury to make the required determination, stating
“that it is manifestly the province of the General Assembly to determine
what new procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne.” Newman, 99 A.3d
at 102.


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Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),10 the

Cardwell Court stated, “[C]reating a new procedure in an effort to impose a

mandatory minimum sentence is solely within the province of the

legislature.” Cardwell, 105 A.3d at 754-55 (emphasis supplied). The Court

thus concluded that the trial court erred by imposing the mandatory

minimum provided for in section 7508. Id. at 755.

     For all of these reasons, we conclude that the sentencing court

sentenced Garcia pursuant to the mandatory minimum sentence contained

in section 7508(a)(2)(i), and based upon its consideration of other factors

(Garcia’s prior record score and lack of remorse), sentenced Garcia above

the mandatory minimum. See Trial Court Opinion, 6/13/14, at 8; see also

18 Pa.C.S.A. § 7508(c).    Section 7508, in its entirety, is unconstitutional.

Cardwell, 105 A.3d at 755. As such, the trial court’s reliance upon section




10
     In Valentine, we held that the mandatory sentencing provisions
contained in section 9712 and 9713 of the Sentencing Code were
unconstitutional pursuant to Alleyne, as both sections required the trial
court to determine by a preponderance of the evidence factors triggering the
implementation of a mandatory minimum sentence. Valentine, 101 A.3d at
809, 812. Although in Valentine, the jury, not the trial court, determined
on the verdict slip the existence of the factors triggering the application of
sections 9712 and 9713, we concluded that pursuant to Newman, “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.” Id. at 811.


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7508 when sentencing Garcia was error, necessitating that we vacate

Garcia’s sentence and remand for resentencing.11

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

      Musmanno, J. joins the Memorandum.

      Olson, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015




11
   In reaching this conclusion, we do not “transform[] Pennsylvania’s now-
invalid mandatory sentencing schemes into a sentencing cap,” as the Dissent
suggests. See Diss. at 1. Our holding here goes no further than to apply
the law to the case before us. As stated, the record reveals that the trial
court sentenced Garcia pursuant to section 7508(a)(2)(i), which the United
States Supreme Court and this Court have since found to be an illegal
sentence, requiring that we vacate Garcia’s sentence and remand for
resentencing. We do nothing to infringe upon a trial court’s discretion at
sentencing.


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