J-S47025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JASON ANSEL

                            Appellant                  No. 1 MDA 2015


              Appeal from the Judgment of Sentence June 3, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000612-2012


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

MEMORANDUM BY OTT, J.:                                 FILED JULY 28, 2015

        Jason Ansel appeals nunc pro tunc from the judgment of sentence

imposed on June 3, 2013, in the Court of Common Pleas of Berks County.

Ansel entered a negotiated plea to one count of possession with the intent to

deliver (PWID) cocaine, and one count of PWID marijuana.1 The trial judge

sentenced him to serve an aggregate term of 5 to 10 years’ incarceration.

Ansel contends his sentence is illegal under Alleyne v. United States, 133

S.Ct. 2151, 2155 (2013) (holding that an aggravating fact that increases a

mandatory minimum sentence must be submitted to the jury for a finding


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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beyond a reasonable doubt).2            Based upon the following, we vacate the

judgment of sentence and remand for resentencing.

       As stated, Ansel entered a negotiated guilty plea to two counts of

PWID (cocaine and marijuana). During the entry of the plea, Ansel admitted

to the weight of the controlled substances recovered by police.                In

sentencing Ansel, the trial court applied the mandatory minimum sentencing

provisions of 18 Pa.C.S. § 7508(a)(3)(ii).           Specifically, the trial court

sentenced Ansel to a mandatory minimum term of 5 to 10 years’

imprisonment on the count for PWID cocaine, and a concurrent term of 9

months to 5 years’ imprisonment on the count for PWID marijuana.

       Ansel did not file a post-sentence motion or direct appeal. However,

he filed a petition pursuant to the Post Conviction Relief Act (PCRA), 3 and

the PCRA court granted the petition and reinstated Ansel’s appeal rights

nunc pro tunc. This appeal followed.

       On January 29, 2015, Ansel filed a Pa.R.A.P. 1925(b) statement,

raising the issue of an illegal sentence based upon Alleyne. The Honorable

Stephen B. Lieberman, in a supplemental Rule 1925(a) opinion, determined

this Court’s decision in Commonwealth v. Cardwell, 105 A.3d 748 (Pa.

Super. 2014) (holding trial court erred by imposing mandatory minimum
____________________________________________


2
  Alleyne was decided on June 17, 2013, two weeks after Ansel was
sentenced by the trial court.
3
    42 Pa.C.S. §§ 9541–9546.



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sentence under Section 7508 even where parties stipulated to weight of

drugs), “appears to be directly on point,” and “request[ed] that [Ansel’s]

judgment of sentence be vacated and that the case be remanded to [the

trial] court for resentencing.” Trial Court Supplemental Opinion, 2/20/2015.

The Commonwealth opposes remand for resentencing.

       In Cardwell, this Court, applying Alleyne, held 18 Pa.C.S. § 7508 is

unconstitutional as a whole and its subsections non-severable.4   See also

Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc). In

light of Cardwell, we conclude the sentence imposed on Ansel’s PWID

cocaine conviction cannot stand, and we agree with Judge Lieberman that

the judgment of sentence should be vacated and the case remanded for

resentencing.      Accordingly, we vacate the judgment of sentence in its

entirety and remand for resentencing, without application of the mandatory

minimum prescribed in 18 Pa.C.S. § 7508. See Commonwealth v.

Goldhammer, 517 A.2d 1280, 1283-1284 (Pa. 1986) (if appellate court

alters overall sentencing scheme, then remand for re-sentencing is proper);
____________________________________________


4
  The Commonwealth maintains that the unconstitutional portion of Section
7508 is severable from the remainder of the statute. However, we note that
the Section 7508 “proof at sentencing” provision, which permits the trial
court to find the necessary elements by a preponderance of the evidence,
contains almost identical language as that found in another mandatory
minimum statute, 18 Pa.C.S. § 6317, which the Pennsylvania Supreme Court
has held to be unconstitutional in its entirety and non-severable.
Commonwealth v. Hopkins, ___ A.3d ___ [2015 Pa. LEXIS 1282] (Pa.
June 15, 2015).




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Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (if

trial court errs in its sentence on one count in multi-count case, then all

sentences for all counts will be vacated and matter remanded for court to

restructure its entire sentencing scheme).

      Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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