J-S44033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

NORRIS EDWARD JENNINGS

                            Appellant               No. 245 WDA 2014


           Appeal from the Judgment of Sentence December 19, 2013
                In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0000388-2013


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

MEMORANDUM BY OTT, J.:                            FILED AUGUST 13, 2014

        Norris Edward Jennings appeals from the judgment of sentence

imposed on December 19, 2013, in the Court of Common Pleas of Mercer

County following his conviction by jury of three counts each of unlawful

delivery of cocaine, possession of cocaine, possession of drug paraphernalia

and criminal use of a communication facility (cell phone).1 Jennings received

an aggregate sentence of three to six years’ incarceration.    The sentence

represents the imposition of the mandatory minimum sentence allowable

under 18 Pa.C.S. § 7508(a)(3)(i).2 In this timely appeal, Jennings raises a

____________________________________________


1
  35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 7512(a),
respectively.
2
    Section 7508 states, in relevant part:

(Footnote Continued Next Page)
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single issue, claiming the imposition of the mandatory minimum sentence

represents cruel and unusual punishment, and is, therefore, unconstitutional

under the Eighth and Fourteenth Amendments of the United States

Constitution and Article 1, Sections 13 and 9 of the Pennsylvania
                       _______________________
(Footnote Continued)

      (a) General rule.--Notwithstanding any other provisions of this
      or any other act to the contrary, the following provisions shall
      apply:

                                            ...

          (3) 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 is
          coca leaves or is any salt, compound, derivative or
          preparation of coca leaves or is any salt, compound,
          derivative or preparation which is chemically equivalent or
          identical with any of these substances or is any mixture
          containing any of these substances except decocainized
          coca leaves or extracts of coca leaves which (extracts) do
          not contain cocaine or ecgonine shall, upon conviction, be
          sentenced to a mandatory minimum term of imprisonment
          and a fine as set forth in this subsection:

             (i) when the aggregate weight of the compound or
             mixture containing the substance involved is at least
             2.0 grams and less than ten grams; one year in
             prison and a fine of $5,000 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: three years in
             prison and $10,000 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)(3)(i).




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Constitution.    After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm on the basis of the March

11,   2014,     Pa.R.A.P.    1925(a)     Opinion      and   the   January     15,   2014,

Memorandum        Opinion     and    Order,    both    authored    by   the   Honorable

Christopher J. St. John.

       The history of this matter and the issue raised in this appeal are both

straightforward and uncomplicated. They are both addressed in the cogent

Memorandum Opinion and Order of January 15, 2014, denying Jennings’

post-sentence motion challenging the constitutionality of 18 Pa.C.S. § 7508.

We need add nothing to that analysis.

       We note that the Pennsylvania mandatory minimum sentencing

statutes have been called into question to the extent that sentencing factors,

such as the weight of the drugs possessed were not determined by jury.

See Alleyne v. United States, 133 S.Ct. 2151 (2013); Commonwealth v.

Lane, 81 A.3d 974, 976 n.5 (Pa. Super. 2013); Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013).3




____________________________________________


3
  We also recognize that our Supreme Court has accepted Commonwealth
v. Johnson, ___ A.3d ___ (Pa. June 13, 2014) for review, to determine
whether the application of 18 Pa.C.S. § 6317, regarding drug free school
zones, must be submitted to the jury and whether a challenge to sentencing
pursuant to Alleyne implicates the legality of a sentence and cannot be
waived.   The instant matter is not dependent upon the resolution of
Johnson.



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      Instantly, Jennings was subject to the mandatory minimum sentence

pursuant to 18 Pa.C.S. § 7508(a)(3)(i) due to both the weight of the drugs

involved and the fact that Jennings had a prior drug conviction. However,

the Alleyne considerations are not applicable herein because the jury did

determine the weight of the drugs involved.            See Jury Verdict Form,

10/23/2013. Additionally, the fact of a prior conviction is exempt from jury

determination. See; Alleyne, 133 S.Ct. at 2160 n.1; Almendarez-Torres

v. United States, 118 S.Ct. 1219 (1998) and Lane, id.               Therefore,

Jennings’ sentence is not unconstitutional under the Sixth and Fourteenth

Amendments of the United States Constitution and Article 1, Sections 13 and

9 of the Pennsylvania Constitution .

      In light of the above, Jennings is not entitled to relief.

      Judgment of sentence affirmed. Parties are directed to attach a copy

of the January 15, 2014 Memorandum and Order and the March 11, 2014

1925(a) Opinion in the event of further proceedings.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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