J. S41022/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
SHAWN BROOKS,                               :
                                            :
                          Appellant         :     No. 3552 EDA 2014

                  Appeal from the PCRA Order January 10, 2012
              In the Court of Common Pleas of Philadelphia County
                 Criminal Division No.: CP-51-CR-0005373-2010


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED JULY 08, 2016

        Appellant, Shawn Brooks, appeals from the Judgment of Sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for three counts of Robbery, and one count each of

Burglary, Criminal Conspiracy, and Carrying a Firearm Without a License.1

Appellant challenges the constitutionality of his sentence pursuant to

Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013). After careful review, we affirm Appellant’s convictions, vacate the

Judgment of Sentence, and remand for resentencing consistent with

Alleyne.


*
    Former Justice specially assigned to the Superior Court.
1
 18 Pa.C.S. § 3701; 18 Pa.C.S. § 3502; 18 Pa.C.S. § 903; and 18 Pa.C.S. §
6106, respectively.
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     The trial court stated the relevant facts as follows:

            In 2010, Appellant was charged with thirty-six separate
     offenses, including three counts of robbery, three counts of
     burglary, three counts of conspiracy to commit robbery,
     violations of the Uniform Fire Arms Act (“VUFA”), and various
     other theft, assault, and firearm violations.      Appellant was
     represented by Samuel Alboum, Esquire at trial. A jury trial was
     held from April 7, 2011 to April 11, 2011. On April 11, 2011, a
     mistrial was declared, as the jury was hopelessly deadlocked.

           A second jury trial commenced on October 28, 2011. On
     November 1, 2011, Appellant was found guilty of three counts of
     robbery, one count of burglary, one count of conspiracy, and one
     count of illegally carrying a firearm. The remaining charges had
     been nolle prossed.

           On January 10, 2010, the Court imposed an aggregate
     sentence of eight to sixteen years of incarceration followed by
     four years of reporting probation. According to Appellant, both
     he and his family informed trial counsel at the sentencing
     hearing that Appellant desired a Notice of Appeal to be filed. A
     Notice of Appeal was never filed.

           Appellant, through Mr. Alboum, filed a Post Sentence
     Motion to Modify Sentence on January 19, 2012, arguing for
     sentence reduction in light of testimony during the first trial that
     Appellant had expressed concern for a child allegedly present in
     the home during the robbery. See Notes of Testimony (“N.T.”),
     4/08/11 at 58. The Court granted the Motion on January 23,
     2012, and it issued an Order reducing the minimum on one of
     Appellant’s three robbery sentences by one year. The Order
     therefore reduced Appellant’s aggregate sentence to seven to
     sixteen years of incarceration followed by four years of reporting
     probation.

            On August 12, 2012, Appellant filed a Petition pursuant to
     the Post Conviction Relief Act (“PCRA”) based on claims of
     ineffective assistance of counsel. On June 4, 2013, Michael L.
     Doyle, Esquire was appointed to represent Appellant at this
     stage.    On January 27, 2014, Appellant filed an Amended
     Petition for Post Conviction Relief, alleging that his appellate
     rights were not preserved as a result of ineffective counsel. An
     evidentiary hearing was held on November 3, 2014 to determine


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      the legitimacy of Appellant’s claims, and on November 17, 2014,
      the Court granted Appellant's Petition and reinstated nunc pro
      tunc his right to appeal.

            Appellant filed a timely Notice of Appeal on December 15,
      2014. The Court filed an Order instructing Appellant’s counsel to
      file a Statement of Matters Complained of on Appeal within
      twenty-one days on March 4, 2015. The Statement was filed on
      March 25, 2015.

Trial Court Opinion, filed 7/14/15, at 1-2.

      Appellant presents one issue on appeal:

      Did the court err in giving an illegal sentence where three (3) of
      the five (5) sentences [are] based upon a mandatory minimum
      sentencing statute that is unconstitutional?

Appellant’s Brief at 6.

      Appellant contends his sentence is unconstitutional, based upon

Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013).2   Here, on January 10, 2012, Appellant received four mandatory

sentences of five to ten years’ incarceration pursuant to 42 Pa.C.S. § 9712

(“Sentences for offenses committed with firearms.”).        See Trial Court

Opinion, filed 7/14/15, at 3.

      In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

this Court found Section 9712 unconstitutional, therefore rendering illegal a




2
   The United States Supreme Court decided Alleyne on June 17, 2013,
holding that “[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, supra at 2155.




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sentence formulated thereunder. Id. at 811-12 (finding that Section 9712

violates the United States Supreme Court’s decision in Alleyne).

     The trial court stated that Alleyne is applicable, and that the

Judgment of Sentence must be vacated and remanded for resentencing.

See Trial Court Opinion, filed 7/14/15, at 3-6, 8.   We agree.     Appellant’s

sentence is therefore illegal; accordingly, we vacate the Judgment of

Sentence and remand this case to the trial court for resentencing without

consideration of Section 9712.3

     Appellant’s convictions for Robbery, Burglary, Criminal Conspiracy, and

Carrying a Firearm Without a License affirmed.       Judgment of Sentence

vacated. Case remanded for resentencing only. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




3
  The Commonwealth requests that we hold our decision in this appeal
“pending the results of similar cases presently before the Pennsylvania
Supreme Court[,]” including Commonwealth v. Wolfe, No. 68 MAP 2015,
and Commonwealth v. Barnes, No. 36 EAP 2015. Appellee’s Brief at 7,
10. We decline to do so in light of the binding case law regarding Section
9712.



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