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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ANGEL ORTIZ,                                :
                                            :
                          Appellant         :     No. 2153 EDA 2014

              Appeal from the Judgment of Sentence July 22, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0009498-2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2015

        Appellant, Angel Ortiz, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas following his jury

convictions of possession of a controlled substance (“simple possession”)

and possession with intent to deliver a controlled substance1 (“PWID”). He

presents one claim for our review: that his mandatory minimum sentence

under 18 Pa.C.S. § 7508(a)(3)(i) is illegal under Alleyne v. U.S., 133 S. Ct.

2151 (2013).      We agree.    We thus affirm his convictions but vacate the

judgment of sentence and remand for resentencing.

        The instant charges arise from undercover surveillance of Appellant



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16), (30).
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selling heroin and cocaine.    Prior to trial, on October 22, 2013, Appellant

filed a pre-trial motion to bar the mandatory minimum sentence provisions

of 42 Pa.C.S. § 7508, pertaining to the weight of drugs involved in a drug

crime.     The court held a hearing on November 4, 2013,2 and denied

Appellant’s motion.

        On March 17, 2014, a jury found Appellant guilty of simple possession

and PWID. It also specifically found he had possessed at least two grams of

cocaine with the intent to deliver. N.T. Trial Vol. 3, 3/17/14, at 108.

        The court conducted sentencing on July 22, 2014. The Commonwealth

averred a mandatory three-to-six year sentence applied to the PWID count,

and noted this mandatory term was above the aggravated range. See N.T.

Sentencing, 7/22/14, at 6. The court applied the mandatory sentence and

sentenced Appellant to three to six years’ imprisonment, to be followed by

two years’ probation.3    Id. at 26.    Appellant did not file a post-sentence

motion, but took this timely appeal.4


2
  At the hearing, Appellant also sought the suppression of evidence, arguing
the police officers lacked reasonable suspicion to stop him and probable
cause to arrest him. N.T. Pretrial Motions, 11/4/13, at 3. The court denied
suppression. Id. at 31.
3
    The court imposed no further penalty on the simple possession count.
4
  The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. Appellant received two extensions of time
to file the statement, resulting in a final deadline of December 5, 2014. The
trial court aptly noted the statement filed on December 12th was untimely.
Trial Ct. Op., 12/23/14, at 2 & n.2. Nevertheless, we agree with the court



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     As stated above, Appellant presents one claim: that the mandatory

sentence provision at 18 Pa.C.S. § 7508(a)(3)(i) is unconstitutional under

Alleyne.   Appellant argues, in pertinent part, that the unconstitutional

subsections of Section 7508 are not severable from the statute, and that this

Court has found other subparts of Section 7508 unconstitutional under

Alleyne. Appellant’s Brief at 15 (citing Commonwealth v. Cardwell, 105

A.3d 748 (Pa. Super. 2014), alloc. filed, 627 EAL 2014 (Pa. Dec. 19, 2014);

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014), alloc. filed,

613 EAL 2014 (Pa. Dec. 18, 2014); Commonwealth v. Thompson, 93

A.3d 478 (Pa. Super. 2014)).     Appellant further contends this Court has

“explicitly ruled against the special interrogatory [sic] employed in this

case.” Appellant’s Brief at 16 (citing Valentine, 101 A.3d 801).

     In its opinion, the trial court stated that in Cardwell and Fennell,

        the Superior Court held that the imposition of the three-
        year mandatory minimum sentences for PWID pursuant to
        18 Pa.C.S.A. § 7508 were illegal, even where the
        defendant stipulated to the drug weight for the purposes of
        trial, because neither § 7508, nor any other statute, set
        forth any authority for the jury to determine beyond a
        reasonable doubt the factual predicates necessitating the
        mandatory minimum set forth in the sentencing statute.

Trial Ct. Op. at 9. The court thus suggests the sentence should be vacated

and this case remanded for resentencing.



that the instant claim of an illegal sentence is not waivable.   See
Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014), alloc.
filed, 800 MAL 2014 (Pa. Nov. 3, 2014); Trial Ct. Op. at 2 n.2.



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      The Commonwealth avers “the imposition of a mandatory minimum

sentence did not violate Alleyne,”5 but concedes “[t]his Court has

specifically ruled that the statute[ ] invoked here was unconstitutional.”

Commonwealth’s Brief at 8. We agree with the trial court and both parties

and find relief is due.

      Preliminarily, we note that Subsection 7508(a)(3)(i) sets forth, in

pertinent part, a mandatory minimum sentence of three years’ imprisonment

when a person has been “convicted of another drug trafficking offense” and

is presently convicted of possessing with intent to deliver two to ten grams

of cocaine. 18 Pa.C.S. § 7508(a)(3)(i).

      In Fennell, this Court stated:

         [I]ssues pertaining to Alleyne go directly to the legality of
         the sentence. . . . It is . . . well-established that “[i]f no
         statutory authorization exists for a particular sentence,
         that sentence is illegal and subject to correction.” . . .
         “Issues relating to the legality of a sentence are questions
         of law[.] . . . Our standard of review over such questions
         is de novo and our scope of review is plenary.”

Fennell, 105 A.3d at 15 (citations omitted).       “In Alleyne, the Supreme

Court held that ‘facts that increase mandatory minimum sentences must be

submitted to the jury’ and must be found beyond a reasonable doubt.” Id.

at 16 (citations omitted).


5
  In support of this position, the Commonwealth asserts “the facts triggering
the mandatory minimum—that [Appellant] possessed with intent to deliver
at least two grams of crack cocaine—[were] specifically submitted to the
jury.” Commonwealth’s Brief at 8.



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      At trial in Fennell, the defendant “stipulated to laboratory reports

that, at a minimum, suggest that the total weight of the heroin [involved]

was 2.035 grams.” Id. at 20. The trial court found the defendant guilty of

PWID and imposed a “mandatory minimum sentence on the basis of the

weight of the heroin, pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i).” Id. at 15.

On appeal, this Court first noted, “This Court has recently noted that Section

7508(a)(2)(ii) cannot be constitutionally applied in light of Alleyne,

resulting in an illegal sentence.”   Id. at 17 (citing Thompson, 93 A.3d at

493). The Court then agreed with the defendant’s contention that “Section

7508 is facially unconstitutional in its entirety and its subsections cannot be

severed from one another.” Fennell, 105 A.3d at 17, 20. The Court further

noted that in Valentine, this “Court held that the trial court was not

permitted to allow the jury to resolve the mandatory minimum questions

absent legislative action in accordance with Newman.”        Id. at 19 (citing

Valentine, 101 A.3d at 811; Commonwealth v. Newman, 99 A.3d 86,

101 (Pa. Super. 2013) (en banc) (holding subsections of 42 Pa.C.S. §

9712.1 were not severable and thus entire statute was unconstitutional)).

      In light of Fennell, we agree with the trial court that Appellant’s

sentence under 18 Pa.C.S. § 7508(a)(3)(i) is illegal. Accordingly, we affirm

the convictions, but vacate the judgment of sentence and remand for

resentencing.

      Judgment of sentence vacated.         Case remanded for resentencing.



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Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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