J-S07009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HARRY E. NEGRON-PIZARRO,

                            Appellant                No. 1001 MDA 2014


      Appeal from the Judgment of Sentence Entered January 30, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0004768-2011


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED FEBRUARY 24, 2015

       Appellant, Harry Negron-Pizzaro, appeals nunc pro tunc from the

judgment of sentence of an aggregate term of 8-20 years’ incarceration,

imposed following his guilty plea to charges of delivery and possession with

intent to deliver (PWID) heroin. Appellant argues that his sentence is illegal

under Alleyne v. United States, 133 S.Ct. 2151 (2013). After careful

review, we vacate Appellant’s sentence and remand for resentencing.

       On January 30, 2013, following Appellant’s open guilty plea to four

counts of delivery of heroin, and one count of PWID (heroin), 1 the trial court



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1
  The facts supporting these charges are not necessary to the disposition of
the instant appeal.
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sentenced Appellant to an aggregate term of 8-20 years’ incarceration.2

Appellant filed an untimely motion for reconsideration of sentence on

February 15, 2013.        See Pa.R.Crim.P. 720(A)(1) (directing that “a written

post-sentence motion shall be filed no later than 10 days after imposition of

sentence”).     The trial court denied the untimely motion on February 28,

2013. Appellant then filed a notice of appeal on April 1, 2013. However,

because Appellant’s post-sentence motion was untimely, it did not stay the

30-day appeal period, thus rendering untimely his notice of appeal, which

was filed two months after his judgment of sentence.        See Pa.R.A.P. 903

(“Except as otherwise prescribed by this rule, the notice of appeal … shall be

filed within 30 days after the entry of the order from which the appeal is

taken.”); see also Commonwealth v. Felmlee, 828 A.2d 1105, 1107 n.1

(Pa. Super. 2003) (“Only a timely-filed post-sentencing motion will trigger

an extension of the time for filing a notice of appeal.”). Accordingly, on June

14, 2013, this Court quashed Appellant’s untimely, first direct appeal.

        Appellant subsequently filed a pro se PCRA petition on December 26,

2013.     The PCRA court appointed PCRA counsel by order dated January 23,

2014, and ordered counsel to file an amended petition within 60 days. An


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2
  Appellant’s aggregate sentence consisted of the following components:
Count 1 (delivery), 3-10 years’ incarceration; Count 2 (delivery), 5-10 years’
incarceration consecutive to Count 1; Counts 3-4 (delivery), 5-10 years’
incarceration each, concurrent to Counts 1 and 2; Count 4 (PWID), 5-10
years’ incarceration, concurrent to Counts 1 and 2.



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amended petition was filed, alleging that prior counsel had rendered

ineffective assistance by failing to file a timely notice of appeal from

Appellant’s January 30, 2013 judgment of sentence. By order dated May 14,

2014, the PCRA court granted relief by reinstating Appellant’s direct appeal

rights nunc pro tunc. Appellant then filed a nunc pro tunc notice of appeal

on June 12, 2014. Appellant filed a timely Pa.R.A.P. 1925(b) statement, and

the trial court issued its Rule 1925(a) opinion on August 12, 2014.

        Appellant now presents the following questions for our review:

           A. Whether Appellant was subjected to an unconstitutional
              mandatory minimum sentencing statute?

           B. Whether Appellant satisfies the jurisdictional requirements
              of the Post-Conviction Relief Act pertaining to claims
              raising newly asserted constitutional rights?

Appellant’s Brief at 4.

        As an initial matter, we note that we will only address Appellant’s first

question. Appellant’s second question is not cognizable at this time, because

Appellant is before this Court on direct appeal from his January 30, 2013

judgment of sentence. Appellant is not before this Court on appeal from the

granting or denying of a PCRA court order. Accordingly, his second issue is

moot.

        Here, it is undisputed that the trial court applied mandatory minimum

sentences (specifically, those prescribed by 18 Pa.C.S. § 7508) in fashioning

Appellant’s sentence. In Alleyne, the Supreme Court of the United States,

held that, pursuant to the Sixth Amendment, any fact that increases the



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mandatory minimum sentence for an offense must be submitted to a jury

and found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163.3

       The   express     language     utilized   in   Section   7508(b)   (“Proof   at

sentencing”) directly contradicts the Alleyne rule, as this Court recently

recognized in Commonwealth v. Vargas, 2014 WL 7447678 (Pa. Super.

Dec. 31, 2014) (en banc).          Therein, a unanimous, en banc panel of this

Court explained:

       A panel of this Court recently held that our en banc opinion in
       Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
       (en banc)[,] and the panel decision in Commonwealth v.
       Valentine, 101 A.3d 801 (Pa. Super. 2014)[,] mandate that we
       hold 18 Pa.C.S.A. § 7508 unconstitutional in its entirety. Thus, a
       mandatory minimum sentence imposed under this statute is
       illegal. Commonwealth v. Fennell, 2014 WL 6505791, *1–8
       (Pa. Super. Nov. 21, 2014). Specifically, the Fennell Court
       noted that 18 Pa.C.S.A. § 7508 is structured in the same manner
       as the statutes that were at issue in Newman and Valentine—
       and, as was true with the statutes at issue in Newman and
       Valentine, one particular subsection of 18 Pa.C.S.A. § 7508 is
       clearly unconstitutional under Alleyne v. United States, –––
       U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See 18
       Pa.C.S.A. § 7508(b). In particular, Section 7508(b) contains the
       following unconstitutional burdens and procedures: it declares
       that the substantive, “aggravating facts” contained in Section
       7508(a) are “not ... an element of the crime;” it declares that
       notice of either the “aggravating facts” or of the applicability of
       the mandatory minimum sentencing statute is “not ... required
       prior to conviction;” it declares that the applicability of the
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3
  The Supreme Court explained, “[t]he essential point is that the aggravating
fact produced a higher [sentencing] range, which, in turn, conclusively
indicates that the fact is an element of a distinct and aggravated crime. It
must, therefore, be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 133 S.Ct. at 2162-63.



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     mandatory minimum statute “shall be determined at
     sentencing;” it declares that the Commonwealth need only prove
     the “aggravating facts” by a preponderance of the evidence;
     and, it declares that a judge—and not a jury—is to act as the
     fact-finder for purposes of determining the “aggravated facts.”
     18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these burdens
     and procedures unconstitutional.

Vargas, 2014 WL 7447678 at *17 (footnote omitted).

     Because    the    Alleyne-offending       provision     of    Section   7508      was

determined to be non-severable, any sentence imposed under that statute is

illegal. Id. (”[A]s the Appellant in the case sub judice was sentenced to a

mandatory   minimum         under   Section    7508,   which       has    been    deemed

unconstitutional, we must vacate Appellant's judgment of sentence and

remand for resentencing, without consideration of the mandatory minimum

sentence.”). Thus, as Appellant was sentenced under that very same

statute, his sentence is illegal. Therefore, we remand for resentencing, with

instructions to the trial court to resentence Appellant without consideration

of the mandatory minimum sentences set forth in 18 Pa.C.S. § 7508.

     The Commonwealth suggests that we should reserve judgment

regarding the legality of Appellant’s sentence, premised upon the argument

that Section 7508(b) is severable from the rest of Section 7508. However,

that matter was effectively decided in Vargas when this Court adopted the

reasoning of Newman, which had found a nearly identical ‘proof at

sentencing’ provision not severable from 42 Pa.C.S. § 9712.1.                          The

unanimous     nature   of    our    decision   in   Vargas        with   regard   to   the

unconstitutionality of the entirety of Section 7508 due to the Alleyne-


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offending subsection, Section 7508(b), leaves us unpersuaded by the

Commonwealth’s argument that Newman was wrongly decided on the

question of severability. Consequently, we decline to withhold judgment in

this matter pending our Supreme Court’s review of Newman (or Vargas).

       Finally, both the trial court and the Commonwealth assert that

Alleyne is inapplicable in this case because Appellant admitted the facts

that triggered his mandatory minimum sentence during the course of his

guilty plea. We disagree. Admission of such facts, in the context of a guilty

plea, does not undermine the unconstitutional nature of the statute under

which Appellant was sentenced.             In this regard, Appellant’s case is no

different from Vargas’, who had stipulated to the fact that triggered his

mandatory minimum sentence under Section 7508.               Moreover, a careful

reading of Vargas indicates that, even if Section 7508(b) were severable

from the statute as a whole, Appellant’s sentence would still be illegal

regardless of his guilty plea admissions.4
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4
   Part II of my concurring and dissenting opinion in Vargas, which was
joined by two other judges, was also effectively joined by two additional
judges in the second footnote to President Judge Emeritus Ford Elliott’s
concurring statement. See Vargas, 2014 WL 7447678 at *18 n.2 (Ford
Elliot, P.J.E., concurring statement).  Consequently, a majority of the
Vargas Court held that pre-Alleyne stipulations to drug weights implicating
mandatory minimum sentences under Section 7508 cannot survive scrutiny
under Alleyne because “such pre-Alleyne stipulations only had the practical
effect of conceding that the Commonwealth could prove the weight of the
drugs by a preponderance of the evidence at sentencing.” Vargas, 2014 WL
7447678 at *22 (Bender, P.J.E., concurring and dissenting). Admissions of
drug weights that trigger mandatory minimum sentences under Section
(Footnote Continued Next Page)


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      Judgment of sentence vacated.               Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

      Judge Ott joins this memorandum.

      Judge Olson files a concurring statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




                       _______________________
(Footnote Continued)

7508 that were made during guilty pleas in the pre-Alleyne era are no
different in this regard from stipulations made during trials in the pre-
Alleyne era. In either case, such admissions were made in anticipation of a
lower standard of proof than is now required by Alleyne. Thus, Appellant’s
sentence cannot survive scrutiny under Alleyne, even if our Supreme Court
ultimately rejects the case for non-severability as set forth by this Court in
Newman, and as applied in Vargas.



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