J-S47044-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
ROSSY CHATELAIN,                         :
                                         :
                 Appellant               :     No. 242 MDA 2015

     Appeal from the Judgment of Sentence Entered December 1, 2014
          in the Court of Common Pleas of Lackawanna County,
          Criminal Division, at No(s): CP-35-CR-0000648-2013,
                         CP-35-CR-0001584-2014

BEFORE:    ALLEN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 07, 2015

     Rossy Chatelain (Appellant) appeals from the December 1, 2014

judgment of sentence of two to five years’ imprisonment following his guilty

plea to possession with intent to deliver (PWID) a controlled substance, 35

P.S. § 780-113(a)(30), at trial court docket number 648 of 2013.1        We

vacate the judgment of sentence and remand for resentencing.

     On March 5, 2013, Appellant pled guilty to possessing, “in front of a

school zone,” 25 grams of heroin with the intent to deliver it.         N.T.,

3/5/2013, at 3. A pre-sentence investigation was ordered, and a sentencing

hearing was scheduled for June 3, 2014. Defendant failed to appear, and


1
  At the same sentencing hearing, Appellant was given a sentence of three
days to six months of imprisonment following his guilty plea to driving under
the influence at trial court docket number 1584 of 2014, which presumably
is why that docket number is on the caption of this appeal.

*Retired Senior Judge assigned to the Superior Court.
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bench warrants were issued.        On December 1, 2014, Appellant was

sentenced as indicated above, which included a two-year mandatory

minimum sentence pursuant to the drug-free school zones statute at 18

Pa.C.S. § 6317.

      Appellant timely filed a post-sentence motion, which was denied by

order of December 9, 2014. Appellant pro se2 timely filed a notice of appeal

on January 9, 2015.3      The trial court appointed appellate counsel, who

complied with the trial court’s order to file a concise statement of errors


2
  At the time Appellant pro se filed his notice of appeal, his privately-
retained plea counsel had not withdrawn his appearance. Normally, hybrid
representation is not permitted, and the pro se filings of a represented
defendant are considered nullities. See, e.g., Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010). However, our Supreme Court has held that a pro
se notice of appeal from a final judgment filed by a represented appellant is
not automatically void. Commonwealth v. Cooper, 27 A.3d 994, 1007
(Pa. 2011). Accordingly, we do not quash this appeal.
3
  Although docketed 31 days after the order denying Appellant’s post-
sentence motion, we are convinced that the notice of appeal was timely filed
for two reasons. First, the docket fails to indicate that the order was served
on the parties on December 9, 2014, which is what triggers the start of the
appeal period. See Pa.R.A.P. 108(a)(1) (“[I]n computing any period of time
under these rules involving the date of entry of an order …, the day of entry
shall be the day the clerk of the court … mails or delivers copies of the order
to the parties….” ).     Second, pursuant to the prisoner mailbox rule, the
notice is considered filed on the date it was given to prison authorities for
mailing. See, e.g, Commonwealth v. Bradley, 69 A.3d 253, 254 n. 3
(Pa. Super. 2013) (explaining prisoner mailbox rule and accepting as timely
notice of appeal given to prison authorities before the filing deadline). As
the Lackawanna County clerk of judicial records received and docketed the
notice on the 31st day, Appellant most likely gave it to prison authorities on
or before the 30th day. Therefore, we decline to quash the appeal as
untimely filed. See, e.g., Commonwealth v. Patterson, 931 A.2d 710,
714 (Pa. Super. 2007).


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complained of on appeal.     However, the trial court did not file an opinion

pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following question for our review: “Whether the

lower court imposed an illegal sentence and erred when it imposed an

apparent mandatory minimum sentence for PWID since mandatory minimum

sentences have been declared unconstitutional by Alleyne v. United

States, --- U.S. ---, 133 S. Ct. 2151 (2013), and its progeny?” (Appellant’s

Brief at 4 ) (unnecessary capitalization omitted).4

      The drug-free school zone statute         under which Appellant was

sentenced states that the “provisions of this section shall not be an element

of the crime,” and that the applicability of the statute shall be determined by

the trial court by a preponderance of the evidence. 18 Pa.C.S. § 6317(b).

      In Alleyne, the Supreme Court held: “Any 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.” 133 S. Ct. at 2155. Our Supreme

Court has held that the portions of the mandatory minimum sentencing

statutes which violate Alleyne are not severable.        Commonwealth v.

Hopkins, No. 98 MAP 2013, 2015 WL 3949099 (Pa. filed June 15, 2015).




4
  Appellant presents three additional questions, all of which challenge the
legality or discretionary aspects of his sentence. Appellant’s Brief at 4.
Based upon our resolution of Appellant’s first question, we need not address
his additional attacks on his sentence.


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J-S47044-15


Accordingly, the drug-free school zone statute is unconstitutional in its

entirety. See Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014).

      Thus, although Appellant pled guilty, and there was no fact finding

made in violation of the Alleyne holding, Appellant’s sentence is illegal and

must be vacated. See Commonwealth v. Valentine, 101 A.3d 801, 812

(Pa. Super. 2014) (vacating sentence as illegal, although the trial court

submitted to the jury for determination beyond a reasonable doubt the fact

which increased the minimum sentence, because the unseverability of the

unconstitutional portions rendered the statutes unconstitutional as a whole).

Indeed,    the   Commonwealth      concedes    this   point   in   its   brief.

Commonwealth’s Brief at 3-4 (discussing Alleyne and Bizzel).

      Therefore, we vacate Appellant’s judgment of sentence and remand

the case for resentencing without consideration of 18 Pa.C.S. § 6317.

      Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015



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