J-S12020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ENECA WILLIAMS,

                            Appellant                   No. 859 EDA 2014


           Appeal from the Judgment of Sentence February 18, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004607-2013


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

MEMORANDUM BY SHOGAN, J.:                               FILED APRIL 10, 2015

       Appellant, Eneca Williams, appeals from the judgment of sentence

entered on February 18, 2014, in the Delaware County Court of Common

Pleas. We affirm.

       Following a jury trial, Appellant was found guilty of driving under the

influence (“DUI”), second offense, and driving while operating privileges

were suspended, DUI related.             On February 18, 2014, the trial court

imposed a sentence of nine to twenty-three months of incarceration,

followed by three years of probation on the DUI conviction, and a concurrent




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S12020-15



term of sixty days of incarceration on the driving while operating privileges

were suspended charge.1

       Appellant filed a timely notice of appeal, and the trial court directed

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).          Appellant complied and raised one issue:

“The Trial Court made unduly prejudicial statements to the jury suggesting

that the failure to reach a unanimous verdict would cause a financial burden

to Delaware County.” Appellant’s Concise Statement of Errors Complained

of on Appeal, 4/10/14 (full italicization omitted).         However, on appeal,

Appellant has abandoned this issue and instead purports to present a

challenge to the legality of his sentence involving the application of a

mandatory minimum sentence.                Appellant’s Brief at 11.   Appellant’s

argument is premised on this Court’s decisions in Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014), and Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super. 2014), which applied the United States

Supreme Court’s holding from Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151 (2013).
____________________________________________


1
   While flat sentences are generally not permitted in Pennsylvania,
Appellant’s flat sentence of sixty days is permissible pursuant to 75 Pa.C.S.
§ 1543(b)(1). See Commonwealth v. Klingensmith, 650 A.2d 444 (Pa.
Super. 1994) (stating that 75 Pa.C.S. § 1543(b) implicitly created an
exception to the minimum/maximum sentencing requirements of 42 Pa.C.S.
§ 9756(b) by specifically authorizing a trial court to impose a flat sentence
for driving with a suspended license when the license was suspended as a
result of a prior DUI conviction).



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      As a general rule, where an appellant is directed to comply with

Pa.R.A.P. 1925(b), any issues not raised in a timely filed concise statement

of errors complained of on appeal will be deemed waived. Commonwealth

v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998)).          However, issues concerning the

legality of one’s sentence can, in some instances, be raised for the first time

on appeal.    “Generally, a challenge to the application of a mandatory

minimum sentence is a non-waiveable challenge to the legality of the

sentence.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)

(citation and quotation marks omitted).

      Because we conclude that Appellant has presented a non-waiveable

challenge to the legality of his sentence, we shall address the issue

presented.   We note that issues challenging the legality of a sentence are

questions of law, and our standard of review over such questions is de novo

and our scope of review is plenary. Akbar, 91 A.3d at 238.

      As noted above, Appellant argues that the decisions in Newman and

Valentine, which apply the Alleyne holding, afford him relief. We disagree.

In Alleyne, the United States Supreme Court held that facts which increase

a mandatory minimum sentence must be submitted to the jury and must be

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

Newman       and   Valentine   dealt   with   mandatory   minimum   sentences

resulting from findings that were determined to be elements of the offense


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itself; therefore, the Supreme Court’s pronouncement in Alleyne mandated

those determinations to be submitted to the jury as required by Apprendi

v. New Jersey, 530 U.S. 466 (2000).              Newman, 99 A.3d at 97;

Valentine, 101 A.3d at 804.2

       However, in the case at bar, the fact supporting the mandatory

minimum, a prior DUI conviction, is not an element of the current offense.

Thus, the instant matter is readily distinguishable from the mandatory

minimum sentences struck down in Newman and Valentine.

       Furthermore, Apprendi explicitly distinguished the bases for an

increase in a sentence, and noted that prior convictions were excepted from

its mandate.     See Apprendi, 530 U.S. at 490 (“Other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”).3 Here, it is undisputed that the increase in

Appellant’s minimum sentence was due to his prior DUI conviction.4

____________________________________________


2
 While Valentine does not specifically cite Apprendi, its analysis cites to
Alleyne and its application of Apprendi. See Alleyne, 133 S.Ct. at 2155.
3
  We are cognizant that this area of our jurisprudence has indeed been called
into question. Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super.
2014). However, we are bound by stare decisis to adhere to the law in its
current state.
4
 We also note that after a request by Appellant’s counsel, the trial court, in
an abundance of caution, placed the issue of Appellant’s prior conviction
before the jury. N.T., Trial, 1/30/14, at 15. Following deliberations which
(Footnote Continued Next Page)


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Therefore, neither Newman, Valentine, Alleyne, nor Apprendi, affords

Appellant relief.       Accordingly, because Appellant’s mandatory minimum

sentence is not illegal, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Bowes Joins the memorandum.

      Justice Fitzgerald Notes Dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




                       _______________________
(Footnote Continued)

were held separately from those that resulted in the guilty verdict on the
charges of DUI and driving while operating privileges were suspended, the
jury specifically determined, beyond a reasonable doubt, that Appellant had
a prior DUI conviction. Id. at 19.



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