J-S60004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANGEL L. ALVAREZ-MENDOZA,

                        Appellant                  No. 1197 EDA 2014


       Appeal from the Judgment of Sentence Entered April 11, 2014
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0001381-2013
                         CP-51-CR-0001382-2013
                         CP-51-CR-0001384-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 20, 2015

     Appellant, Angel L. Alvarez-Mendoza, appeals from the judgment of

sentence of an aggregate term of 25 to 50 years’ incarceration, imposed

after a jury convicted him of, inter alia, two counts of rape of a child with

serious bodily injury (18 Pa.C.S. § 3121(d)) , one count of unlawful contact

with a minor (18 Pa.C.S. § 6318(a)(1)), and one count of involuntary

deviate sexual intercourse (IDSI) with a child less than 13 years old (18

Pa.C.S. § 3123(b)).     Herein, Appellant challenges the legality of three

mandatory minimum terms of incarceration imposed in his case pursuant to

42 Pa.C.S. § 9718. After careful review, we agree with Appellant that the

challenged sentences are illegal.   Therefore, we vacate his judgment of

sentence and remand for resentencing.
J-S60004-15



      A detailed factual recitation is unnecessary to our disposition of

Appellant’s appeal.   However, we briefly note that Appellant’s convictions

stemmed from his repeated sexual abuse of three brothers, all less than 13

years old at the time of the crimes. Appellant knew the children because he

had a long-standing friendship with their mother, and lived in the same

neighborhood as the victims.

      After a jury trial, at which each of the three victims testified, Appellant

was convicted of the above-stated offenses.        On April 11, 2014, he was

sentenced to the aggregate term of incarceration stated supra. Specifically,

for Appellant’s two counts of rape of a child, he received consecutive,

mandatory terms of 10 to 20 years’ imprisonment pursuant to 42 Pa.C.S. §

9718(a)(3).   For his conviction of IDSI of a child, Appellant received a

concurrent, mandatory term of 10 to 20 years’ incarceration pursuant to 42

Pa.C.S. § 9718(a)(1). Appellant also received a consecutive term of 5 to 10

years’ incarceration for his conviction of unlawful contact with a minor.

      Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.           The trial

court issued a Rule 1925(a) opinion on November 21, 2014.              Appellant

presents two issues for our review:

      1. Did not the trial court err when it imposed a mandatory
      sentence pursuant to 42 Pa.C.S. § 9718(a)(3) [Sentences for
      offenses against infant persons], where the mandatory statute
      requires a conviction for both 18 Pa.C.S. § 3121(c) [rape of a
      child] and 18 Pa.C.S. § 3121(d) [rape of a child with serious
      bodily injury] to trigger a mandatory sentence and [A]ppellant
      was only convicted of 18 Pa.C.S. § 3121(c)?

                                      -2-
J-S60004-15


       2. Should not [A]ppellant’s sentence be vacated where it was
       imposed pursuant to a mandatory sentencing statute, 42 Pa.C.S.
       § 9718 [Sentences for offenses against infant persons], that is
       facially unconstitutional, non-severable and void under
       Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014)?

Appellant’s Brief at 3 (emphasis in original).

       For ease of disposition, we will begin by addressing Appellant’s second

issue, in which he argues that based on this Court’s recent holding in Wolfe,

his three mandatory minimum sentences imposed under 42 Pa.C.S. § 9718

are illegal.1 Initially, we note:

       “A challenge to the legality of a sentence ... may be entertained
       as    long    as   the   reviewing    court    has    jurisdiction.”
       Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
       Super. 2011) (citation omitted). It is also well-established that
       “[i]f no statutory authorization exists for a particular sentence,
       that sentence is illegal and           subject to correction.”
       Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014)
       (citation omitted). “An illegal sentence must be vacated.” Id.
       “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.” Commonwealth v. Akbar,
       91 A.3d 227, 238 (Pa.Super.2014) (citations omitted).

Wolfe, 106 A.3d at 801-02 (Pa. Super. 2014).


____________________________________________


1
  Because Wolfe was not yet decided when Appellant filed his Rule 1925(b)
statement, he asserted therein that his sentences are illegal under Alleyne
v. United States, 133 S.Ct. 2151 (2013), and Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), appeal denied, 2015 WL
4960608 (Pa. 2015). Appellant’s inability to raise, before the trial court, his
claim challenging the legality of his sentences under Wolfe does not
preclude our review. As we stated in Wolfe, “a challenge to the legality of
sentence can never be waived[,]” and “issues pertaining to the United States
Supreme Court’s decision in Alleyne … directly implicate the legality of the
sentence.” Wolfe, 106 A.3d at 801.



                                           -3-
J-S60004-15



     Next, we set forth the pertinent language of section 9718:

     (a) Mandatory sentence.--

        (1) A person convicted of the following offenses when the
        victim is less than 16 years of age shall be sentenced to a
        mandatory term of imprisonment as follows:

                                    ***

        18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
        intercourse)--not less than ten years.

                                    ***

     (3) A person convicted of the following offenses shall be
     sentenced to a mandatory term of imprisonment as follows:

     18 Pa.C.S. § 3121(c) and (d)--not less than ten years.

                                    ***

     (c) Proof at sentencing.--The provisions of this section shall
     not be an element of the crime, and notice of the provisions of
     this section to the defendant shall not be required prior to
     conviction, but reasonable notice of the Commonwealth's
     intention to proceed under this section shall be provided after
     conviction and before sentencing. The applicability of this section
     shall be determined at sentencing. The court shall consider any
     evidence presented at trial and shall afford the Commonwealth
     and the defendant an opportunity to present any necessary
     additional evidence and shall determine, by a preponderance of
     the evidence, if this section is applicable.

42 Pa.C.S. § 9718.

     In Wolfe, this Court assessed the constitutionality of section 9718 in

light of the United States Supreme Court’s decision Alleyne, and this Court’s

holding in Newman. In Alleyne, the Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Thereafter,



                                    -4-
J-S60004-15



in Newman, an en banc panel of this Court concluded that 42 Pa.C.S. §

9712.1, a mandatory minimum sentencing statute formatted similarly to

section 9718, is unconstitutional in light of Alleyne.   In so holding, the

Newman Court noted that section 9712.1 contains a subsection directing

that the applicability of the mandatory sentence shall be found by the trial

court by a preponderance of the evidence at sentencing. See 42 Pa.C.S. §

9712.1(c); Newman, 99 A.3d at 91.       Because we concluded in Newman

that subsection 9712.1(c) contradicts the rule announced in Alleyne, and

that subsection 9712.1(c) is not severable from the remainder of the

statute, this Court held that section 9712.1, as a whole, is unconstitutional

under Alleyne. Id. at 98, 101.

     In Wolfe, we reached the same conclusion regarding section 9718. In

doing so, we emphasized that section 9718 contains a subsection with the

same language as that in section 9712.1(c), which Newman deemed invalid

and not severable.     Wolfe, 106 A.3d at 805; 42 Pa.C.S. § 9718(c).

Consequently, we declared that “[f]ollowing Newman’s instructions, we are

required to conclude that [s]ection 9718 is also facially unconstitutional.”

Wolfe, 106 A.3d at 805.

     We did recognize in Wolfe, however, that section 9718 is unique, in

that certain offenses to which that statute applies contain, as an element of

the crime, the additional fact triggering applicability of the mandatory

sentence. For example, in this case, Appellant was convicted of IDSI under

18 Pa.C.S. § 3123(b), which states: “A person commits involuntary deviate

                                    -5-
J-S60004-15



sexual intercourse with a child, a felony of the first degree, when the person

engages in deviate sexual intercourse with a complainant who is less than 13

years of age.” 18 Pa.C.S. § 3123(b) (emphasis added).            For this offense,

Appellant was sentenced to a mandatory term of 10 to 20 years pursuant to

42 Pa.C.S. § 9718(a)(1), which is triggered when the victim of the IDSI is

“less than 16 years of age….”      Thus, by convicting Appellant of IDSI of a

child, the jury necessarily found, beyond a reasonable doubt, the fact that

invoked Appellant’s mandatory sentence, i.e., that the victim was less than

16 years of age.

      A   nearly   identical   scenario   was   addressed   by    our   Court   in

Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014), decided

shortly before Newman.         There, Matteson was convicted of aggravated

indecent assault of a child less than 13 years of age, and received a

mandatory sentence under 42 Pa.C.S. § 9718(a)(1).            We held that the

requirements of Alleyne were met because, “by finding Matteson guilty of

aggravated indecent assault of a child beyond a reasonable doubt, the jury

specifically found the element required to impose the mandatory minimum

sentence.” Matteson, 96 A.3d at 1066.

      In Appellant’s case, the trial court relied on Matteson to reject

Appellant’s claim that his IDSI mandatory sentence is illegal.          See Trial

Court Opinion (TCO), 11/21/14, at 12-15.          However, as the trial court

concedes, Matteson was decided prior to Newman.                     TCO at 12.

Additionally, after the trial court filed its Rule 1925(a) opinion, our Court

                                      -6-
J-S60004-15



abrogated Matteson by holding, in Wolfe, that pursuant to Newman,

section 9718 is unconstitutional in its entirety.2

        Accordingly, in light of Wolfe, we are required to vacate Appellant’s

three mandatory minimum sentences imposed under section 9718 and

remand for resentencing.3

        Judgment of sentence vacated.            Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




____________________________________________


2
 We acknowledge that our Supreme Court granted allocatur in Wolfe. See
Commonwealth v. Wolfe, No. 63 MAL 2015, 2015 WL 4755651 (Pa. Aug.
12, 2015). However, at this time, our holding in Wolfe remains binding
precedent.
3
    Based on our disposition, we need not address Appellant’s first issue.



                                           -7-
