J-A30004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EMMANUEL YATES

                            Appellant                 No. 3242 EDA 2014


            Appeal from the Judgment of Sentence August 13, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0008091-2013


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 23, 2015

        Appellant, Emmanuel Yates, appeals from the August 13, 2014,

aggregate judgment of sentence of 79 to 158 months’ imprisonment,

imposed after Appellant was found guilty of one count each of robbery,

criminal conspiracy and possession of an instrument of a crime. 1         After

careful review, we affirm.

        Appellant’s sole issue on appeal is that the trial court erred when it

considered, in imposing sentence, the jury’s factual finding that Appellant

used a firearm to put the victim in fear of death of seriously bodily injury

under the mandatory minimum statute at 42 Pa.C.S.A. § 9712. Appellant’s

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), and 907(a), respectively.
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Brief at 17.2        This Court has declared Section 9712 to be facially

unconstitutional. See generally Commonwealth v. Valentine, 101 A.3d

801, 812 (Pa. Super. 2014), appeal denied, --- A.3d ---, 800 MAL 2014 (Pa.

2015).    Although Appellant acknowledges he did not receive a mandatory

minimum sentence, Appellant nevertheless argues he received a “de facto

mandatory minimum” because the trial court considered the jury’s Section

9712(a) factual finding in imposing sentence. Appellant’s Brief at 17.

       At the outset, we note Appellant’s acknowledgment that this argument

goes to the discretionary aspects of his sentence. Appellant’s Brief at 11. It

is axiomatic that in this Commonwealth, “[t]here is no absolute right to

appeal    when     challenging     the    discretionary   aspect   of   a   sentence.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation

omitted).     When an appellant forwards an argument pertaining to the

discretionary aspects of the sentence, this Court considers such an argument

to be a petition for permission to appeal. Commonwealth v. Buterbaugh,


____________________________________________
2
  Specifically, after the trial court gave its charge to the jury, it included the
following question on the verdict slip.

              Did [Appellant] visibly possess a firearm or a replica
              of a firearm, whether or not the firearm or replica
              was loaded or functional, that placed the victim in
              reasonable fear of death or serious bodily injury
              during the commission of the robbery?

Appellant’s Brief at 5. This question paraphrased the language of Section
9712(a). See generally 42 Pa.C.S.A. § 9712(a).



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91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal

denied, 104 A.3d 1 (Pa. 2014).     We will grant an appellant’s petition for

permission to appeal where an appellant’s brief contains a Rule 2119(f)

statement that raises “a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code[.]” Commonwealth v.

Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal

denied, 99 A.3d 925 (Pa. 2014).     Here, Appellant raised this issue in his

motion to reconsider sentence in the trial court and has included a Rule

2119(f) statement in his brief. We also note that an argument alleging the

trial court considered an improper factor in imposing sentence, raises a

substantial question for our review. Commonwealth v. Dowling, 990 A.2d

788, 792 (Pa. Super. 2010).     We therefore grant Appellant’s petition for

permission to appeal, and proceed to address his claim.

     We review the discretionary aspects of a sentence for a manifest abuse

of discretion. Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014) (citations omitted), appeal denied, 105 A.3d 739 (Pa. 2014).          As

noted above, Appellant argues that the trial court erred when it considered

the jury’s Section 9712 finding.   Appellant’s Brief at 17.   Specifically, the

jury found that Appellant, in committing the robbery, used a firearm to put

the victim in fear of death of seriously bodily injury.   See generally 42

Pa.C.S.A. § 9712.




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      Instantly, the mandatory minimum sentence pursuant to Section 9712

was 60 months’ imprisonment.       Id.    However, the trial court imposed a

sentence of 40 months’ imprisonment on the robbery charge. Further, upon

review of the record, there is no indication the trial court ever stated it was

imposing a mandatory minimum sentence. Nevertheless, the trial court was

always free to consider Appellant’s possession and use of a gun in the

ordinary course of sentencing, even if the Commonwealth never sought the

mandatory minimum.         See Commonwealth v. Perry, 32 A.3d 232, 242

(Pa. 2011) (stating, “factors that are not elements of an offense may be

considered by the sentencing court in imposing its sentence[]”); 42

Pa.C.S.A. § 9721(b) (requiring the trial court to take into account “the

gravity of the offense” at sentencing).    The reason the jury was asked to

make this finding was to comply with Alleyne v. United States, 133 S. Ct.

2151 (2013), in order to impose the Section 9712 mandatory minimum.

However, the trial court ultimately did not apply Section 9712. Therefore,

this factual finding from the jury, does not render the trial court’s imposition

of the instant sentence an abuse of discretion.

      Based on the foregoing, we conclude Appellant’s sole issue on appeal

is devoid of merit. Accordingly, the trial court’s August 13, 2014 judgment

of sentence is affirmed.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015




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