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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

RUSSIU STEWART

                           Appellant                     No. 2534 EDA 2013


              Appeal from the Judgment of Sentence July 9, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006476-2012
-------------------------------------------------------------------------------------

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

RUSSIU STEWART

                           Appellant                     No. 2536 EDA 2013


             Appeal from the Judgment of Sentence July 9, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0006483-2012


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 07, 2014
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        Rassiu Stewart appeals from two judgments of sentence imposed on

July 9, 2013, in the Montgomery County Court of Common Pleas. 1 The trial



                                                                 separate cases,

to robbery2 and related charges, for his participation in two armed robberies

that occurred on August 13, 2012.              On appeal, Stewart challenges the

legality of his sentences.       For the reasons set forth below, we vacate the

judgments of sentence, and remand for resentencing.

        On March 26, 2013, Stewart entered open guilty pleas in the following

two cases: (1) at Docket No. 6476-2012, he pled guilty to robbery, persons

not to possess firearms, and firearms not to be carried without a license;3

and (2) at Docket No. 6483-2012, he pled guilty to robbery, persons not to

possess firearms, firearms not to be carried without a license, and

possession with intent to deliver controlled substances (PWID).4 Sentencing

was originally scheduled for June 21, 2013, however, that hearing was
____________________________________________


1
  Because the appeals at 2534 EDA 2013 and 2536 EDA 2013 both involve
related questions of law and are part of the same sentencing scheme, we
have consolidated them for purposes of disposition.
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. §§ 3701(a)(1)(iii), 6105, and 6106, respectively.
4
  18 Pa.C.S. §§ 3701(a)(1)(iii), 6105, and 6106, and 35 P.S. 780-
113(a)(30), respectively.




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continued so that the parties could determine whether Stewart had a prior

conviction for robbery, which would constitute a first strike for sentencing

purposes. See 42 Pa.C.S. § 9714(a)(1).5

       At the July 2, 2013, sentencing hearing, the Commonwealth provided



a felony of the first degree.        Defense counsel agreed the prior conviction

counted as a first strike, and that both of the robbery convictions before the

court would count as second strikes pursuant to Section 9714.         See N.T.,

7/9/2013, at 9, 11. The trial court then proceeded to impose the following

sentences. At Docket No. 6476-2012, the trial court sentenced Stewart to a

mandatory min

concurrent terms of four to 10 years for persons not to possess firearms and

two to 10 years for firearms not to be carried without a license. At Docket

No. 6483-2012, the court imposed the same sentence for the count of

robbery and the violations of the Uniform Firearms Act. However, the trial

court also imposed a consecutive sentence of a mandatory minimum five to



____________________________________________


5




ti


the statute. See 42 Pa.C.S. § 9714(g).



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                                                                          6
                                                                              The

trial court directed the sentences at Docket No. 6483-2012 would run

concurrently with the sentences at Docket No. 6476-2012. Therefore, the



incarceration. Stewart filed post sentence motions at both docket numbers
____________________________________________


6
    The statute provides, in pertinent part:

        (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),1 known as The Controlled Substance, Drug, Device
        and Cosmetic Act, when at the time of the offense the person or

        firearm, whether visible, concealed about the person or the

        or in close proximity to the controlled substance, shall likewise
        be sentenced to a minimum sentence of at least five years of
        total confinement.

                                         ****

        (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

        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(a), (c). As we will discuss infra, an en banc panel of
this Court has held that this sentencing provision is unconstitutional.
Commonwealth v. Newman, 2014 PA Super 178 (Pa. Super. 2014) (en
banc).




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charge of PWID at Docket No. 6483-2013. The court denied the motions on

August 8, 2013, and these timely appeals followed.7

       In both appeals, Stewart challenges the legality of the two to 10 year

sentence imposed by the trial court for his convictions of firearms not to be

carried without a license. He argues that, because the charges were graded

as felonies of the third degree, the maximum sentence the trial court could



No. 6483-2012, Stewart contends the five year mandatory minimum

sentence the trial court imposed for his conviction of PWID was illegal in

light of the United States                                        Alleyne v.

United States, 133 S.Ct. 2151 (2013).

       Preliminarily, we note that neither of these claims was raised in

                 -sentence motions or his concise statements.8 However, since
____________________________________________


7
  On September 24, 2013, the trial court ordered Stewart to file, in each
case, a concise statement of errors complained of on appeal pursuant to

his concise statements on October 7, 2013.

The appeal of the judgment of sentence at trial Docket No. 6476-2012 is
docketed in this Court at 2534 EDA 2013. The appeal of the judgment of
sentence at trial Docket No. 6483-2012 is docketed in this Court at 2536
EDA 2013.
8
  The only issues Stewart raised in his post sentence motions and concise
statements challenged the discretionary aspects of his sentence. Counsel,
however, has abandoned these claims on appeal. Indeed, in the appellate
(Footnote Continued Next Page)


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both issues implicate the legality of his sentence,9 they are non-waivable

claims, and can be raised for the first time on direct appeal. 42 Pa.C.S. §

9781(a); Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super.

2010).

      Our review of a challenge to the legality of a sentence is well-

established:

      If no statutory authorization exists for a particular sentence, that
      sentence is illegal and subject to correction. An illegal sentence

      statute, our standard of review is plenary and is limited to
      determining whether the trial court committed an error of law.

Commonwealth v. Orie Melvin, 2014 PA Super 181, *40 (Pa. Super.

2014).


                       _______________________
(Footnote Continued)

brief at 2534 EDA 2013 (trial court Docket No. 6476-2012), counsel states


2013, at 18. Counsel then proceeds to explain why the issue is frivolous.
See id. at 18-24. While such an argument is proper in a brief filed pursuant
to Anders v. California, 386 U.S. 738 (1967), and accompanied by a
petition to withdraw as counsel, it is not proper
However, because we are ultimately vacating the judgments of sentence in
these appeals, and remanding for a new sentencing hearing, we decline to
remand for a proper brief.
9
   See Commonwealth v. Bradley,
illegal sentence is one that exceeds t
Newman, supra
Alleyne [] implicates the legality of the sentence and cannot be waived on
            en banc).




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                               tion for each of his convictions of firearms not to

be carried without a license. The Uniform Firearms Act specifically provides

that a person who carries a firearm without a valid license commits a felony

of the third degree.10       18 Pa.C.S. § 6106(a).      The statutory maximum




6106, are illegal, and must be vacated.

       Although the Commonwealth concedes that the sentences are illegal, it

argues we need not remand for resentencing, but may simply correct the



charges, because it




EDA 2013, at 7.




____________________________________________


10
                                                   ch appeal properly listed
the charges of firearms not to be carried without a license as third degree
felonies. See Docket No. 6476-2012, Criminal Information, 10/10/2012, at
Count 6; Docket No. 6483-2012, Criminal Information, 10/10/2012, at
Count 6.




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                                                      e must be corrected, we are

empowered to either amend the sentence directly or to remand the case to

                                         Commonwealth v. Benchoff, 700 A.2d

1289, 1294 (Pa. Super. 1997).             See Commonwealth v. Vasquez, 476

A.2d 466, 469 (Pa. Super. 1994) (declining to remand case for resentencing

when improper sentence ran concurrently to proper sentence; appellate



this [C]ourt may upset the sentencing scheme envisioned by the trial court,

                                               Commonwealth v. Dobbs, 682 A.2d

388, 392 (1996). Here, although the charges stem from two separate cases

and run concurrently to other lengthier sentences, they are part of one

sentencing scheme envisioned by the trial court.          Therefore, we believe a

remand for resentencing is appropriate and warranted.11

       Next, at Docket No. 6483-2012 (2536 EDA 2013), Stewart contends

the mandatory minimum five to 10 year sentence imposed for his conviction

of PWID is

Alleyne, supra. We agree.



____________________________________________


11
  Moreover, as we will discuss infra, we are also compelled to vacate the
consecutive sentence imposed by the trial court for the charge of PWID at
Docket No. 6483-2012. Therefore, a remand will allow the court to fashion a
new sentencing scheme.




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        The PWID sentence was imposed pursuant to 42 Pa.C.S. § 9712.1,

which, in relevant part, mandates a trial court to impose a five-year




9712.1(a).      The most troublesome part of the sentencing statute is

subsection (c) which permits the trial court to determine the applicability of

the provision during the sentencing hearing, pursuant to a preponderance of

the evidence standard. See id. at § 9712.1(c).

        In Alleyne

                                                                submitted to

the jury and found beyond a reasonable doubt             Alleyne, 133 S.Ct. at

2155 (emphasis supplied).             The Court expanded upon its holding in

Apprendi,12 which applied only to facts that increased the statutory

maximum for a crime, to include facts which increase the minimum

sentence. Id. Accordingly, under the holding of Alleyne



under Section 9712.1, must be submitted to a jury.




____________________________________________


12
     Apprendi v. New Jersey, 530 U.S. 466 (2000).




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        This Court, sitting en banc in Commonwealth v. Watley, 81 A.3d

108, (Pa. Super. 2013), appeal denied, 95 A.3d 277 (Pa. 2014), recognized

that:

        The Alleyne
        minimum sentencing statutes that do not pertain to prior
        convictions constitutionally infirm insofar as they permit a judge
        to automatically increase a defend
        preponderance of the evidence standard.

Id. at 117.      However, in that case, the en banc panel concluded the



Watley Court held that the jury, by virtue of its guilty verdicts on the



as to whether Appellant possessed the handguns found in the car; the

reason it did not do so in conjunction with the PWID count is that the

prevailing law a                                                    Watley, 81

A.3d at 121. The Court explained:

        [T]he uncontroverted evidence in the instant case established
        that one firearm was located in the same glove compartment as
        the drugs and another handgun was located on the passenger-
        side floor in close proximity to the drugs, and the jury
        determined beyond a reasonable doubt that Appellant possessed
        those firearms.    Therefore, the facts necessary to establish
        application of the mandatory minimum sentence not only were
        essentially undisputed and overwhelming, they were determined
        by the jury.

Id. at 121.

        Here, the Commonwealth contends that Watley is controlling, and

that the Alleyne

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mandatory-triggering fact

Brief, 2536 EDA 2013, at 12.    Further, it asserts that if this Court should

determine that a remand for resentencing is required, we should permit a

      -finder to determine whether the mandatory minimum ap              Id.

Both of these arguments, however, were recently rejected by another en

banc panel of this Court in Commonwealth v. Newman, 2014 PA Super

178 (Pa. Super. 2014).

       In Newman, this Court held that Alleyne

9712.1 unconstitu             Id. at *15.    Although the Newman Court

acknowledged that an Alleyne issue may be subject to a harmless error

analysis, it found the error was not harmless in that case. The Court opined:

       We cannot find that the error here was harmless, because the

       necessarily overwhelming.     As previously noted, the drug
       contraband was found in a bathroom. The firearm was found
       under a mattress in a bedroom across the hallway, and the
       actual distance between the contraband and the firearm was six
       to eight feet.

Id.

in Section 9712.1 was subject to much debate among Pennsylvania courts

                                                 uld undoubtedly find under

                                                      Id. at *13.

       The facts in the case sub judice fall somewhere between those

presented in Watley and those in Newman. Here, Stewart entered a guilty

plea. However, absent from his plea was an explicit acknowledgment that


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committed the crime of PWID. 42 Pa.C.S. § 9712.1(a). The Commonwealth

                                                                         d the

firearm while being chased by police. When that chase ended, he was found

to be in possession of forty-

2536 EDA 2013, at 12.       Therefore, it asserts that Stewart admitted the

           -                 . Id.

     However, the facts presented by the Commonwealth during the guilty

plea colloquy were as follows:


     day, [you] walked into A Plus Store, and the cashier there was
                              Harris Beg was about a foot or two
     behind Mr. Azam. They were both within a few feet of you when

     put it on the counter and demanded money. And they told you
                                      u left. Correct?

     [Stewart:] Yes, sir.

     [Prosecutor:] You also understand that by pleading guilty today,
     you are admitting that you had in your possession heroin, plastic
     baggies, and wax paper, and you possessed this with the intent
     to deliver it?

     [Stewart:] Yes.

N.T., 3/26/2013, at 21.



would certainly permit a fact-finder to reasonably infer that Stewart

possessed a firearm while committing PWID, we do not agree that the facts

he admitted during the guilty plea colloquy mandate such a conclusion.


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sentence were not determined by a jury beyond a reasonable doubt, nor

were they explicitly admitted by him, we find the trial court erred in applying



      Moreover,   we    note   the   Newman      Court    also   rejected   the



may submit this question to a fact-finder to determine, beyond a reasonable

doubt, whether the mandatory minimum applies. Indeed the Court opined:


      sentencing jury would require this court to manufacture whole
      cloth a replacement enforcement mechanism for Section 9712.1;
      in other words, the Commonwealth is asking us to legislate. We
      recognize that in the prosecution of capital cases in
      Pennsylvania, there is a similar, bifurcated process where the
      jury first determines guilt in the trial proceeding (the guilt
      phase) and then weighs aggravating and mitigating factors in
      the sentencing proceeding (the penalty phase). However, this
      mechanism was created by the General Assembly and is
      enshrined in our statutes at 42 Pa.C.S.A. § 9711. We find that it
      is manifestly the province of the General Assembly to determine
      what new procedures must be created in order to impose
      mandatory minimum sentences in Pennsylvania following
      Alleyne. We cannot do so.

Id. at *14. Accordingly, upon remand the trial court is directed to sentence

Stewart without application of the mandatory minimum provision in Section

9712.1.




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       Because we conclude the trial court imposed illegal sentences at

Docket Nos. 6476-2012 and 6483-2012, we vacate the judgments of

sentence, and remand for a new sentencing hearing.13

                                                                   -2012 and

6483-2012 vacated.        Cases remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014


____________________________________________


13

10 to 20 years for his robbery convictions, imposed pursuant to 42 Pa.C.S. §
9714(a)(1), did not violate Alleyne. This Court has explained that:

       Prior convictions are the remaining exception to Apprendi v.
       New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
       (2000), and Alleyne , insofar as a fact-finder is not required to
       determine disputed convictions beyond a reasonable doubt to
       comport with the Sixth Amendment jury trial right. See
       Almendarez Torres v. United States, 523 U.S. 224, 118
       S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014).
Accordingly, upon remand, the trial court may re-impose the Section 9714

convictions.



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