J-S66041-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :    IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                    Appellee                    :
                                                :
                    v.                          :
                                                :
RICHARD GLENN BOWERS,                           :
                                                :
                      Appellant                 :    No. 896 WDA 2015

       Appeal from the Judgment of Sentence Entered May 12, 2015,
             in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0000820-2009

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED NOVEMBER 19, 2015

      Richard Glenn Bowers (Appellant) appeals from a judgment of

sentence entered in connection with his conviction for indecent assault of a

person less than 13 years of age. We affirm.

      After a jury convicted Appellant of the aforementioned offense, the

trial court sentenced Appellant to a mandatory sentence of life in prison

pursuant to 42 Pa.C.S. § 9718.2(a)(2). On appeal, Appellant argued, inter

alia, that his sentence was illegal because, at the time of his current offense,

he had not been previously convicted of two or more offenses arising from

separate criminal transactions set forth in 42 Pa.C.S. § 9795.1(a) or (b).

This Court agreed, concluding that, because Appellant had one relevant

previous offense, Appellant should have been sentenced to a mandatory

minimum    sentence      of   25   years   in   prison   pursuant   to   42   Pa.C.S.



*Retired Senior Judge assigned to the Superior Court.
J-S66041-15

§ 9718.2(a)(1).   Commonwealth v. Bowers, 118 A.3d 446 (Pa. Super.

2015) (unpublished memorandum).            Consequently, this Court vacated

Appellant’s judgment of sentence and remanded the case to the trial court

for resentencing under subsection 9718.2(a)(1). Id.

      On May 12, 2015, the trial court sentenced Appellant consistent with

this Court’s instructions. Appellant timely filed a notice of appeal. The crux

of Appellant’s argument on appeal is that subsection 9718.2(a)(1) is

unconstitutional, rendering his sentence illegal.

      Subsection 9718.2(a)(1) provides:

      Any person who is convicted in any court of this Commonwealth
      of an offense set forth in section 9799.14 (relating to sexual
      offenses and tier system) shall, if at the time of the commission
      of the current offense the person had previously been convicted
      of an offense set forth in section 9799.14 or an equivalent crime
      under the laws of this Commonwealth in effect at the time of the
      commission of that offense or an equivalent crime in another
      jurisdiction, be sentenced to a minimum sentence of at least 25
      years of total confinement, notwithstanding any other provision
      of this title or other statute to the contrary….

42 Pa.C.S. § 9718.2(a)(1).

      Appellant does not dispute that he previously was convicted of a

qualifying offense under this statute.    Instead, he argues that subsection

9718.2(a)(1) is unconstitutional pursuant to Alleyne v. United States, 133

S.Ct. 2151 (2013) and its progeny.

      In Alleyne, “the United States Supreme Court [] held that any facts

leading to an increase in a mandatory minimum sentence are elements of




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the crime and must be presented to a jury and proven beyond a reasonable

doubt.”   Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super.

2014). However, this Court has explained that

      [p]rior convictions are the remaining exception to Apprendi v.
      New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
      (2000), and Alleyne v. United States. ––– U.S. ––––, 133
      S.Ct. 2151, 186 L.Ed.2d 314 (2013), insofar as a fact-finder is
      not required to determine disputed convictions beyond a
      reasonable doubt to comport with the Sixth Amendment jury
      trial right.

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014)

(citations omitted).

      Thus,   because   the   mandatory    minimum   sentence   contained   in

subsection 9718.2(a)(1) is predicated upon prior convictions, Alleyne does

not render it unconstitutional.     Consequently, none of the issues or

arguments presented by Appellant on appeal warrants relief. We therefore

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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J-S66041-15




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 11/19/2015




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