J-S12012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,       IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                  Appellee

                     v.

GEORGE SLAUGHTER,

                          Appellant                   No. 3270 EDA 2013

              Appeal from the Judgment of Sentence July 6, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015984-2009


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 18, 2015

       George Slaughter1 appeals from the judgment of sentence of six to ten

years incarceration that the trial court imposed after a jury convicted him of

possession of a controlled substance (marijuana) with intent to deliver

(“PWID”), possession of a firearm by a prohibited person, and possession of

an instrument of crime. We vacate the judgment of sentence and remand

for re-sentencing.

       The pertinent facts were outlined by the trial court herein:

              On November 19, 2009, the Defendant, George Slaughter,
       was arrested and was charged with inter alia, possession of a
       controlled substance with the intent to deliver, possession of an
       instrument of crime, and possession of a firearm by a person
       ineligible for events which occurred at or near 607 Mifflin Street
       in the City and County of Philadelphia.

1
 The Commonwealth, which had until January 2, 2015 to file a brief in this
matter, has not submitted that document.

*
    Former Justice specially assigned to the Superior Court.
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            A jury trial was conducted before this court on May 3,
     2011. Viewing the evidence in the light most favorable to the
     Commonwealth as verdict winner, the following evidence was
     proved at trial: Police Officer Jeffrey Galazka conducted an
     investigation of 607 Mifflin Street on November 17, 2009 based
     on information he had received from an informant regarding the
     sale of narcotics at that address. Between the hours of 3 p.m.
     and 5 p.m., Officer Galazka, with his partner, Police Officer Kidd
     (first name not given) sat in an unmarked vehicle and observed
     their confidential informant (CI) attempt to purchase narcotics at
     that location. Someone (not the Defendant) answered the door
     and the CI entered the residence.         Approximately two (2)
     minutes later, the CI returned to Officer Galazka’s vehicle and
     turned over two (2) red-tinted zip-lock packets each containing
     an offwhite chunky substance of alleged crack-cocaine.

            Based on Officer Galazka's observation, a search warrant
     for the property was obtained and executed on November 19,
     2009. In a second floor bedroom, Officer Galazka found the
     Defendant standing at the foot of the bed. The Defendant told
     Officer Galazka that a firearm was located under a bed pillow.
     From that location, the officer recovered a .22 caliber five-shot
     revolver loaded with five (5) live rounds. Officer Galazka also
     observed a small safe sitting on the bed. He opened the safe
     which contained marijuana, a bottle containing 93 pills (later
     identified as Xanax), a digital scale, and numerous new and
     unused packaging in different colors. A work ID card and mail
     with address of the Defendant was also found. . . .

Trial Court Opinion, 6/19/14, at 1-2 (footnotes and citations to record

omitted).    In the safe, there were twelve sandwich bags and forty-four

smaller, blue and pink zip-lock packets.    All of the packages contained

marijuana.

      Appellant was sentenced on July 6, 2011.      In the information, the

Commonwealth had indicated that it intended to proceed both under the

mandatory minimum applicable based upon the weight of the marijuana, 18


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Pa.C.S. § 7508, which will be analyzed infra, as well as the mandatory

minimum outlined in 42 Pa.C.S. § 9712.1, which applies when guns are

found in close proximity to drugs and which also will be examined in full

infra.    At sentencing, the prosecution similarly indicated that it considered

both to be at play. The Commonwealth noted that a jury found Appellant

“guilty of possession with intent to deliver marijuana and a gun.        It’s a

mandatory sentence in this case.”           N.T. Sentencing, 7/6/11, at 5.

Separately, it observed that, with respect “to the marijuana, there will not

be a minimum or maximum as normally would be the case,” and that the

court “could only give a flat five-year sentence.”           Id.    Later, the

Commonwealth mentioned that Appellant had a prior record score that

included a “conviction for selling drugs” as well as various firearms offenses.

Id. at 9. It continued, “So for those reasons the Commonwealth is asking for

a sentence of five years for the marijuana PWID[.]”         Id. at 11.   These

statements pertain to application of § 7508.

         While the sentencing court did not explicitly state which mandatory it

was applying, it appears to have applied § 7508. The court stated, “On the

marijuana case, based on the fact that, you know, it’s a mandatory

minimum sentence, it just so happens that the mandatory sentence in that

case is the maximum sentence as well, so I’m going to have to impose that

sentence.” Id. at 12. Thus, the court did not mention the gun and imposed

the sentence solely based upon the fact that the marijuana case had a


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mandatory minimum. Next, in addition to the flat sentence of five years on

the PWID, the court imposed a consecutive one to five year term of

incarceration on the firearms offense, for a total sentence of six to ten years

in jail.

       Appellant did not file a direct appeal, but he did file a timely PCRA

petition on December 9, 2011.       Counsel was appointed, and, on July 31,

2012, counsel filed an amended petition averring that Appellant’s appellate

rights should be reinstated since his trial counsel ignored Appellant’s request

to file a direct appeal. On July 13, 2013, the Commonwealth agreed that the

requested relief should be accorded.

       On October 31, 2013, the PCRA court granted reinstatement of

Appellant’s direct appeal rights.      Appellant thereafter filed the present,

timely nunc pro tunc appeal.        Appellant complied with the trial court’s

directive to file a Pa.R.A.P. 1925(b) statement and raised one issue: “The

Court erred in imposing the mandatory minimum sentence in this matter for

the conviction for possession of marijuana because the Commonwealth did

not produce at trial sufficient evidence of the amount of marijuana

recovered.”    Statement of Matters Complained of on Appeal Pursuant to

Pa.R.A.P. 1925(b), 4/11/14, at 1.

       The trial court authored a response to this position. It indicated that it

did not impose the five-year mandatory minimum sentence as to the PWID

charge based upon the weight of the marijuana under 18 Pa.C.S. § 7508.


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Rather, the trial court reported that it imposed the sentence pursuant to 42

Pa.C.S. § 9712.1(a) “once the court determined that the Defendant was

found with a gun and 280 grams of marijuana.”               Trial Court Opinion,

6/19/14, at 6.

        On appeal, Appellant raises one contention, “Is the mandatory

sentence in this case an illegal sentence?” Appellant’s brief at 9. Appellant

avers that he was sentenced under a statute declared unconstitutional by

the Supreme Court in Alleyne v. United States,            U.S.   , 133 S.Ct. 2151

(2013). He maintains that, while not raised below, this contention cannot be

waived as it relates to the legality of his sentence.             We agree with

Appellant’s contentions and therefore vacate the sentence and remand for

re-sentencing.

        Initially, we note that the record is unclear as to which mandatory

minimum was applied herein.           In its Pa.R.A.P. 1925(a) opinion, the court

indicated that it sentenced pursuant to 42 Pa.C.S. § 9712.1(a). That statute

provides, in relevant part that, if a person is convicted of violating 35 P.S. §

780-113(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act

(the “Act”), as Appellant was herein, the person must be sentenced to at

least five years total confinement when, at the time of the offense, a firearm

is in close proximity to the controlled substance.2       It justified its sentence



2
    That statute’s full text is as follows:



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based upon the fact that the jury determined that Appellant possessed a

weapon, which was under the pillow on a bed, and that the jury also found

that Appellant possessed the marijuana found in a safe located in the same

area.

        The other mandatory minimum mentioned in the information and at

the sentencing proceeding is outlined in 18 Pa.C.S. § 7508, which relates to

drug trafficking sentencing and penalties. That statute provides in relevant

part that, if a person is convicted of violating 35 P.S. § 780-113(30) of the

Act, where the controlled substance is classified as a Schedule I3 drug under

the Act, the person must be sentenced to five years imprisonment if the

weight of the drugs was between ten and 100 grams and if the person has a

prior drug trafficking conviction.”4 In both statutes, the applicability of the




        (a) Mandatory sentence.--Any person who is convicted of a
        violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
        233, No. 64), known as The Controlled Substance, Drug, Device
        and Cosmetic Act, when at the time of the offense the person or
        the person's accomplice is in physical possession or control of a
        firearm, whether visible, concealed about the person or the
        person's accomplice or within the actor's or accomplice's reach
        or in close proximity to the controlled substance, shall likewise
        be sentenced to a minimum sentence of at least five years of
        total confinement.

42 Pa.C.S. § 9712.1(a).
3
    “Marihuana” is a Schedule I drug under the Act. 35 P.S. 780-104(1)(iv).
4
    The full text of the portion of § 7508 at issue herein is as follows



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mandatory      minimums    is   determined   by   the   sentencing   court    by   a

preponderance-of-the-evidence standard.5



        (2) A person who is convicted of violating section 13(a)(14),
        (30) or (37) of The Controlled Substance, Drug, Device and
        Cosmetic Act where the controlled substance or a mixture
        containing it is classified in Schedule I or Schedule II under
        section 4 of that act and is a narcotic drug shall, upon
        conviction, be sentenced to a mandatory minimum term of
        imprisonment and a fine as set forth in this subsection:

              ....

              (ii) when the aggregate weight of the compound or
              mixture containing the substance involved is at least
              ten grams and less than 100 grams; three years in
              prison and a fine of $15,000 or such larger amount
              as is sufficient to exhaust the assets utilized in and
              the proceeds from the illegal activity; however, if at
              the time of sentencing the defendant has been
              convicted of another drug trafficking offense: five
              years in prison and $30,000 or such larger amount
              as is sufficient to exhaust the assets utilized in and
              the proceeds from the illegal activity. . . .

18 Pa.C.S. § 7508(a)(2).
5
    Specifically, 42 Pa.C.S. § 9712.1 provides:

        (c) Proof at sentencing.--Provisions of this section shall not be
        an element of the crime, and notice thereof 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. § 9712.1(c).


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     However, as noted, it appears that the Commonwealth invoked both

statutes, and the trial court could have applied either one. In light of the

fact that either mandatory minimum was potentially implicated herein, we

will analyze Appellant’s present claim with respect to both mandatory

minimum sentencing statutes. We first note that

     issues pertaining to Alleyne go directly to the legality of the
     sentence. Commonwealth v. Lawrence, 99 A.3d 116, 123
     (Pa.Super. 2014). With this in mind, we begin by noting our
     well-settled standard of review. “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 n. 8 (Pa.Super.2011) (citation omitted). It is also well-
     established that “if 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).




Likewise, 18 Pa.C.S. § 7508 states:

      (b) Proof of sentencing.—Provisions of this section shall not
     be an element of the crime. Notice of the applicability 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 evidence
     presented at trial, shall afford the Commonwealth and the
     defendant an opportunity to present necessary additional
     evidence and shall determine, by a preponderance of the
     evidence, if this section is applicable.

18 Pa.C.S. § 7508(b).


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Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014). Appellant

did not raise an Alleyne issue at sentencing or in his Pa.R.A.P. 1925(b)

statement.    However, in Commonwealth v. Watley, 81 A.3d 108, 118

(Pa.Super. 2013) (en banc) (citations omitted), we noted, “Application of a

mandatory minimum sentence gives rise to illegal sentence concerns, even

where the sentence is within the statutory limits.       Legality of sentence

questions are not waivable and may be raised sua sponte by this Court.”

     We have recently explained the holding and impact of Alleyne as

follows:

          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. Alleyne, supra
      at 2163. Alleyne is an extension of the Supreme Court's line of
      cases beginning with Apprendi v. New Jersey, 530 U.S. 466,
      120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court
      overruled Harris v. United States, 536 U.S. 545, 122 S.Ct.
      2406, 153 L.Ed.2d 524 (2002), in which the Court had reached
      the opposite conclusion, explaining that there is no constitutional
      distinction between judicial fact finding which raises the
      minimum sentence and that which raises the maximum
      sentence.

Feeney, supra at 16 (citation omitted).

      This Court has held that, under Alleyne, 18 Pa.C.S. § 7508 is

unconstitutional in its entirety.6   Commonwealth v. Vargas, 2014 WL

7447678 (Pa.Super. 2014) (en banc); Commonwealth v. Cardwell, 2014



6
 The fact of the prior conviction invoking § 7508(a)(2)(ii) does not implicate
Alleyne, see Apprendi v. New Jersey, 530 U.S. 466 (2000), but the
weight of the drugs required to apply that section does.


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WL 6656644 (Pa.Super. 2014); Feeney, supra; Commonwealth v.

Thompson, 93 A.3d 478, 493 (Pa.Super. 2014). Additionally, 42 Pa.C.S. §

9712.1 has been completely struck down as unconstitutional pursuant to the

Alleyne decision. Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc); see also Commonwealth v. Ferguson, 2015 WL 49438

(Pa.Super. 2015) (vacating sentence imposed under 42 Pa.C.S. § 9712,

which concerns a mandatory minimum on offenses committed with a firearm

under certain circumstances); Commonwealth v. Valentine, 101 A.3d

801, 808 (Pa.Super. 2014) (same); Commonwealth v. Bizzel, 2014 WL

6756277 (Pa.Super. 2014) (invalidating 18 Pa.C.S. § 6317, imposing a

mandatory minimum sentence and pertaining to the sale of drugs within a

certain distance from a school); Commonwealth v. Wolfe, 2014 WL

7331915 (Pa.Super. 2014) (observing that any mandatory minimum statute

in Pennsylvania that contains a format allowing the sentencing court to

determine its application at sentencing by a preponderance of the evidence

standard has been “struck down as facially unconstitutional in Newman and

Valentine,” including 42 Pa.C.S.A. §§ 9712, 9712.1, 9713, and 9718).7




7
  This author has noted her disagreement with the severability analysis in
the cited cases. Commonwealth v. Wolfe, 2014 WL 7331915 (Pa.Super.
2014) (Bowes, J., concurring); Commonwealth v. Bizzel, 2014 WL
6756277 (Pa.Super. 2014) (Bowes, J., concurring). Furthermore, the issue
is currently under review by our Supreme Court. Commonwealth v.
Hopkins, 98 MAP 2013.


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       Under this recent authority, it is clear that Appellant must be

resentenced without application of either mandatory minimum arguably

applicable herein.

       Judgment of sentence vacated.     Case remanded for resentencing in

accordance with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2015




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