J-S04027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

NOEL CALA LELIEBRE,

                           Appellant                  No. 904 MDA 2014


             Appeal from the Judgment of Sentence March 21, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000050-2011


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                  FILED MARCH 26, 2015

     I agree in full with the majority’s resolution of the issues raised by

Appellant.    In light of this Court’s recent decisions discussing severability

and mandatory minimum sentencing, I concur in the result of vacating

Appellant’s judgment of sentence. I add that I have outlined my reasons for

why I believe Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)

(en banc), and its progeny are erroneous and continue to adhere to those

views.    See Commonwealth v. Bizzel, 107 A.3d 102 (Pa.Super. 2014)

(Bowes,    J.,   concurring);   Commonwealth v. Wolfe,        106   A.3d   800

(Pa.Super. 2014) (Bowes, J., concurring).

     Pointedly, this case is yet another reason to reconsider our boilerplate

statements that virtually all mandatory minimum sentencing questions

pertain to the legality of one’s sentence.     Compare Commonwealth v.


*Retired Senior Judge assigned to the Superior Court.
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Lawrence, 99 A.3d 116 (Pa.Super. 2014) (non-Apprendi and Alleyne

constitutional challenges to mandatory sentencing statute were waivable).

Although in Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en

banc), I authored a decision setting forth, in the pre-Alleyne sentencing

setting, that an Alleyne issue could raise an illegal sentencing issue, we did

not find the actual sentence to be illegal. Therefore, there is a distinction

between a legality of sentence issue and a sentence that is actually illegal.

      As noted, in recent cases I have criticized this Court’s severability

analysis relative to mandatory minimums, see Bizzel, supra; Wolfe,

supra, and suggested that we re-visit our legality of sentence paradigm as it

relates to Alleyne mandatory minimum questions.          See Wolfe, supra.1



1
  In addition to Alleyne-related issues, in a host of other cases, both this
Court and our Supreme Court have construed various mandatory minimum
sentencing claims as legality of sentence questions. See Commonwealth
v. Akbar, 91 A.3d 227 (Pa.Super. 2014); Commonwealth v. Armstrong,
74 A.3d 228 (Pa.Super. 2013); Commonwealth v. Baker, 72 A.3d 652
(Pa.Super. 2013); Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super.
2013); Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth        v.  Stokes,     38    A.3d   846    (Pa.Super.   2012);
Commonwealth        v.  Poland,     26    A.3d   518    (Pa.Super.   2011);
Commonwealth        v.  Kittrell,   19    A.3d   532    (Pa.Super.   2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
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Further, I have been reluctant to sua sponte overturn a mandatory sentence

without adequate briefing. See Wolfe, supra (noting that our Pennsylvania

Supreme Court has declined to address illegal sentencing questions not

raised or adequately argued in that court).

Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
Commonwealth          v.   Bell,   901    A.2d   1033    (Pa.Super.     2006);
Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super. 2006) (en banc)
(noting in dicta that certain mandatory minimum sentencing claims present
legality of sentence issues); Commonwealth v. Edrington, 780 A.2d 721
(Pa.Super. 2001); Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super.
2000), reversed on other ground, 786 A.2d 202 (Pa. 2001); see also
Commonwealth v. Taylor, __ A.3d __ (Pa. 2014) (filed November 20,
2014) (failure to order mandatory drug and alcohol assessment prior to
sentencing, in violation of statutory language, presented legality of sentence
issue); Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000)
(Commonwealth’s issue on appeal, regarding failure to impose a mandatory
fine under 18 Pa.C.S. § 7508, was non-waivable illegal sentencing claim);
Commonwealth v. Eisenberg, 98 A.3d 1268 (Pa. 2014) (constitutional
challenge to mandatory minimum fine was illegal sentencing question).

      In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based upon a violation of the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc), and Commonwealth v. Ferguson, 2015 PA Super 1.

      I add that at the time of the writing of my concurrence in
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), our Supreme
Court had granted allowance of appeal to consider whether Alleyne claims
were illegal sentencing questions. Commonwealth v. Johnson, 93 A.3d
806 (Pa. 2014). On the same date that Wolfe was decided, the Supreme
Court dismissed that appeal as improvidently granted. Commonwealth v.
Johnson, 2014 WL 7335218 (filed Dec. 24, 2014).

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      I continue to subscribe to those views and believe our post-Alleyne

sentencing jurisprudence relative to severability, separation of powers, and

illegal sentencing questions has lost sight of the constitutional grounds of the

Alleyne decision, which was to protect a defendant’s jury trial right. Here,

there was no jury trial right violation because the jury determined the

amount of heroin beyond a reasonable doubt, as indicated by its verdict slip.

      My own position is that there is a critical distinction between pre-

Alleyne mandatory cases, where judges were sentencing based on essential

facts connected to the crime that were not determined by a jury or agreed to

by the defendant via stipulation or a plea, and post-Alleyne sentencing

cases.   In the latter situation, I believe any Alleyne issue should be

preserved because the courts and Commonwealth were attempting to

comply with that decision, thereby eliminating the constitutional jury trial

problem. Hence, the grounds as to why a sentence would be constitutionally

infirm are simply not the same in the pre-Alleyne cases.               Phrased

differently, in the pre-Alleyne cases there is an alleged and, in some cases,

actual constitutional violation, based on an intervening change in the law, in

combination with a lack of discretionary authority on the part of the

sentencing judge.    In post-Alleyne cases, as here, the constitutional jury

trial violation is generally no longer a concern.




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     Nonetheless, a line of decisions has developed from this Court that

currently compels vacating Appellant’s sentence as illegal.       Newman,

supra, Commonwealth v. Vargas, 2014 PA Super 289 (en banc);

Commonwealth       v.   Fennell,     105    A.3d   13    (Pa.Super.   2014);

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

Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super. 2014); Bizzel,

supra; Wolfe, supra; Commonwealth v. Ferguson, 2015 PA Super 1.

Absent Newman and Valentine, and their progeny, I would affirm.

However, as those cases are currently binding, I am constrained to concur.




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