J-S57015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANI                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYREE LAMAR JACKSON

                            Appellant                 No. 921 EDA 2016


           Appeal from the Judgment of Sentence October 26, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007006-2012


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

JUDGMENT ORDER BY PANELLA, J.                     FILED NOVEMBER 08, 2017

        Appellant, Tyree Jackson was charged with, among others, attempted

murder, aggravated assault, robbery, burglary, conspiracy, and possession

of an instrument of crime, based upon allegations that he and a co-

defendant, Tyrik Lark,1 robbed and shot Luther Wilkinson inside his own

home. A jury found Jackson guilty only of aggravated assault, robbery,

burglary, and the possessory crimes. In this appeal, Jackson argues that the

mandatory minimum sentence imposed by the court was illegal. After careful

review, we affirm.




____________________________________________


1   Lark’s appeal is docketed at 3039 EDA 2015.
J-S57015-17


        As Jackson’s two issues both challenge the court’s imposition of a

mandatory minimum sentence, we need not set forth a detailed summary of

trial testimony. Instead, we will focus on the sentence imposed.

        At the sentencing hearing, the court found Jackson had a previous

conviction for attempted murder when he was 18 years old. Thus, the court

concluded that this was Jackson’s “second strike”, and imposed a mandatory

minimum sentence of 10 years of imprisonment pursuant to 42 Pa.C.S.A. §

9714.

        On appeal, Jackson raises two distinct challenges to the imposition of

the mandatory sentence. First, he contends the court’s imposition of a

mandatory minimum sentence based upon its own fact finding, and not the

jury’s, violated the dictates of Alleyne v. United States, 133 S.Ct. 2151

(2013) (holding judicial fact finding that leads to the imposition of a

mandatory minimum sentence is unconstitutional).

        Jackson concedes his arguments are contrary to precedent that

controls    our   decision.   See   Appellant’s   Brief,   at   13;   see   also

Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016). However, he

asserts that his is “a good faith argument for a change in existing law.” Id.

He notes that the Supreme Court of Pennsylvania granted the petition for

allowance of appeal in Bragg to review the issue of the constitutionality of §

9714. See id., at 13-14. Specifically, the Supreme Court defined the issue

before it as: “Should the mandatory minimum sentence imposed by the trial


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J-S57015-17


court under 42 Pa.C.S.A. § 9714 be vacated, and this matter remanded for a

new sentencing hearing, due to the fact that § 9714 is unconstitutional as

currently drafted?” Bragg, 143 A.3d 890 (Pa. 2016).

     However, during the pendency of this appeal, our Supreme Court

summarily affirmed this Court’s decision in Bragg. See --- A.3d ---, 2017

WL 3596177 (Pa. 2017) (per curiam order). While we appreciate Jackson’s

good faith and transparent advocacy for a change in existing law, we are

bound by controlling precedent. Specifically, this Court in Bragg recognized

that the Supreme Court of the United States has held judicial fact finding

regarding the existence of prior convictions is not prohibited. See 133 A.3d

332-333.

     As this Court has held that § 9714 is not unconstitutional, neither of

Jackson’s issues on appeal have merit. We therefore affirm the judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2017




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