J-A01025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

COURTNEY WILSON

                            Appellant                 No. 2598 EDA 2014


              Appeal from the Judgment of Sentence April 4, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001091-2012
                            CP-51-CR-0001093-2012
                            CP-51-CR-0001094-2012


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                 FILED APRIL 29, 2016

        Courtney Wilson appeals from the judgment of sentence imposed on

April 4, 2014, in the Philadelphia County Court of Common Pleas.       Wilson

was sentenced to an aggregate term of 15 to 30 years’ imprisonment

following his guilty plea, at three separate dockets, to the sexual assault of

three minor female victims. On appeal, Wilson challenges the legality of his

sentence in light of the United States Supreme Court’s decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013). For the reasons that follow, we

affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        The facts underlying Wilson’s guilty plea were set forth by the trial

court in detail in its opinion, and we need not reiterate them herein.         See

Trial Court Opinion, 12/11/2014, at 2-4. In summary, Wilson was charged

with sexually assaulting three minor females -- his sister-in-law, C.C., and

two girls he met through church, S.P. and T.M. At a hearing conducted on

June 17, 2013, he entered guilty pleas in all three cases.          At Docket No.

1093-2012, Wilson pled guilty to charges of rape, involuntary deviate sexual

intercourse (“IDSI”), endangering the welfare of children (“EWC”), and

corruption of minors,1 for his assault of C.C. between 1997 and 2002, when

she was 10 to 15 years old.          At Docket No. 1091-2012, Wilson entered a

guilty plea to charges of rape, EWC, and corruption of minors2 for his assault

of S.P., between 2001 and 2005, when she was 14 to 18 years old. Lastly,

at Docket No. 1094-2012, Wilson pled guilty to corruption of minors and

indecent assault,3 for his assault of T.M. in September of 2001, when she

was 12 years old.       During the plea hearing, the Commonwealth explicitly

stated the rape and IDSI charges were subject to five-year mandatory




____________________________________________


1
   18 Pa.C.S.      §§    3121(a)(1),     3123(a)(1),   4304(a),   and   6301(a)(1),
respectively.
2
    18 Pa.C.S. §§ 3121(a)(1), 4304(a), and 6301(a)(1), respectively.
3
    18 Pa.C.S. §§ 6301(a)(1) and 3126(a)(7), respectively.




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minimum sentences.           See N.T., 6/17/2013, at 15-16; 42 Pa.C.S. §

9718(a).4

       Wilson proceeded to sentencing on April 4, 2014, at which time the

trial court imposed the following sentence:5 (1) at Docket No. 1093-2012,

two consecutive terms of five to 10 years’ imprisonment for rape and IDSI;

(2) at Docket No. 1091-2012, a consecutive term of five to 10 years’

imprisonment for rape; and (3) at Docket No. 1094-2012, a concurrent term

of one to two years’ imprisonment for indecent assault.         No further

punishment was imposed on the remaining charges.      Wilson filed a timely

post-sentence motion challenging the discretionary aspects of his sentence.

The motion was denied by operation of law on August 13, 2014, and this

timely appeal followed.6
____________________________________________


4
  The Commonwealth also explained that, although the statute currently
provides for a 10-year mandatory minimum term, at the time the offenses
were committed, the statute mandated only a five-year minimum sentence.
N.T., 6/17/2013, at 15.
5
  Prior to the sentencing hearing, Wilson underwent an assessement by the
Sexual Offenders Assessment Board to determine if he met the criteria for a
sexually violent predator (“SVP”) pursuant to the Sexual Offenders
Registration and Notification Act (“SORNA”). See 42 Pa.C.S. § 9799.10 et
seq. The assessor determined Wilson met the definition of an SVP and
Wilson chose not to contest the assessor’s determination.      See N.T.,
4/4/2014, at 9-10.
6
  On September 16, 2014, the trial court directed Wilson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time, Wilson filed a concise statement on
October 22, 2014.




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      Wilson’s sole issue on appeal is a challenge to the legality of his

sentence.   He argues that “insofar as [his] sentence was dictated by a

mandatory     minimum    sentencing    statute    which    was   triggered   by   a

determination of a fact beyond the elements of the offenses charged,” his

sentence is illegal pursuant to Alleyne. Wilson’s Brief at 11.

      Preliminarily,   however,   we   must      address   the   Commonwealth’s

contention that Wilson’s claim is waived.          The Commonwealth asserts

because Wilson failed to preserve this issue “before the sentencing court or

in his statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b),” we may not address the claim on appeal. Commonwealth’s Brief

at 12. Further, it insists that the prior decisions of this Court, which have

held an Alleyne claim is a nonwaivable challenge to the legality of

sentencing, are “incorrect,” and emphasizes that this very question is

pending before the Pennsylvania Supreme Court.              Id. at 12-13.     See

Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal

granted, 121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the

Superior Court erred as a matter of law when it determined, sua sponte,

defendant’s mandatory minimum sentence was unconstitutional under

Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014)

(unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015)

(granting appeal to consider, inter alia, whether an Alleyne claim raises a

challenge to the legality of sentencing).




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        While we recognize the Commonwealth’s disagreement with this

Court’s prior decisions, we remain bound by the sound precedent of our

Court, sitting en banc, in Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.           2015), which

specifically held “a challenge to a sentence premised upon Alleyne …

implicates the legality of the sentence and cannot be waived on appeal.”

Newman, supra, 99 A.3d at 90.                    For that reason, we reject the

Commonwealth’s waiver argument, and proceed to the substantive issue on

appeal.

        In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

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

2155. Applying that mandate, this Court, in Newman, found that Alleyne

rendered the mandatory minimum sentencing provision at 42 Pa.C.S. §

9712.1 unconstitutional because Subsection (c) of that statute permitted the

trial court to determine at sentencing whether the elements necessary to

increase the mandatory minimum sentence, i.e., the defendant possessed or

was in close proximity to a firearm while selling drugs, were proven by a

preponderance of the evidence.7 See 42 Pa.C.S. § 9712.1(c). Under the


____________________________________________


7
    The “proof at sentencing” provision states:

(Footnote Continued Next Page)


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reasoning of Alleyne, the Newman Court explicitly held: “Section 9712.1

can no longer pass constitutional muster.” Newman, supra, 99 A.3d at 98.

Significantly, the Court also found the offensive subsection of the statute

was not severable, thereby invalidating the sentencing statute as a whole.

Id. at 101.     More recently, the Pennsylvania Supreme Court applied the

same analysis to invalidate the statute codified at 18 Pa.C.S. § 6317, which

provides a two-year mandatory minimum sentence when a defendant is

convicted of, inter alia, delivery of a controlled substance within 1,000 feet

of a school. Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). See

id. at 261 (“[W]e find the unoffending portions of the statute, standing

alone, without a wholesale rewriting, are incomplete and incapable of being

vindicated in accord with the legislature’s intent.”).

      Since the decision in Newman, supra, this Court has consistently

held that mandatory minimum statutes, which include the same “proof at

sentencing” provisions permitting the trial court to find determinative factors
                       _______________________
(Footnote Continued)

      (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
      the Commonwealth’s intention to proceed under this section
      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(c).



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under a preponderance of the evidence standard at sentencing, are

unconstitutional. See Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super.

2014) (applying Newman to 18 Pa.C.S. § 7508), appeal denied, 121 A.3d

494 (Pa. 2015); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super

2014) (applying Newman to 42 Pa.C.S. §§ 9712 and 9713), appeal denied,

124 A.3d 309 (Pa. 2015). Relevant to this appeal, a panel of this Court in

Wolfe, supra, employed Newman’s reasoning to invalidate Section 9718,

the mandatory minimum statute applied herein.8          See Wolfe, supra, 106

A.3d at 805 (“Newman stands for the proposition that mandatory minimum

sentence statutes in Pennsylvania of this format are void in their entirety[;

therefore, as] Section 9718 is indistinguishable from the statutes struck

down in Newman and Valentine, we are constrained to conclude that

Section 9718 is also facially void.”) (citations omitted).

       However, the case before us presents a critical factual distinction,

differentiating it from Wolfe and Newman. The offenses occurred between

1997 and 2005, Wilson was sentenced under pre-2007 versions of Section

9718, which did not include the “proof at sentencing” subsection that has

been determined to be invalid.9           See 1995, March 31, P.L. 985, No. 10

____________________________________________


8
 As noted above, the Pennsylvania Supreme Court has granted allowance of
appeal in Wolfe, but, as of this date, has not rendered a decision.
9
 It is clear from the sentencing transcript that the trial court imposed the
mandatory minimum under the pre-2007 versions of the statute. See N.T.,
(Footnote Continued Next Page)


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(Spec. Sess. No. 1), § 17, effective in 60 days; 2004, Nov. 30, P.L. 1703,

No. 217, § 4, imd. effective. It was not until the 2006 amendment, effective

January 1, 2007, that the Legislature added the language directing the

sentencing court to determine “by a preponderance of the evidence, if this

section is applicable.”      42 Pa.C.S. § 9718(c).   Accordingly, the mandatory

minimum statute applied to Wilson’s sentence is not facially unconstitutional

pursuant to Newman and Hopkins.10

      Because the analysis in Newman and Hopkins does not apply under

the facts sub judice, we look to the case law interpreting the Supreme

Court’s prior decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Alleyne decision was an extension of Apprendi, which held:           “Other

                       _______________________
(Footnote Continued)

6/17/2013, at 15-16. Indeed, while the statute currently provides for a
mandatory minimum 10-year sentence for Wilson’s crimes, the pre-2007
versions provided for only a 5-year mandatory minimum term.
10
   We note that Wilson asserts the pre-2007 version of Section 9718 suffers
from the same deficiency as the present version, that is, “there is no
procedure for a judicial determination of the facts (here, the age of the
victim) necessary to trigger the imposition of the mandatory sentence that
could possibly comply with the mandate of Alleyne.” Wilson’s Brief at 15.
We disagree. In Hopkins, the Supreme Court held the offending language
in Section 6317 was not severable because the statute as a whole
demonstrated the Legislature’s “clear expressions” that the statute apply
only at sentencing, and not constitute a new aggravated offense.
Hopkins, supra, 117 A.3d at 259. The pre-2007 version of Section 9718
did not contain any of the offending language. Therefore, the Legislature did
not provide “clear expressions” as to how the triggering facts would be
determined. Accordingly, so long as the facts are established beyond a
reasonable doubt, the statute does not facially violate Alleyne.




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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.”       Id. at 490.    See Alleyne,

supra, 133 S.Ct. at 2160 (“[T]he principle applied in Apprendi applies with

equal force to facts increasing the mandatory minimum.”). In applying the

Apprendi holding, the Supreme Court explained that “the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303,

(2004) (emphasis in original and further supplied). Therefore, this Court has

found no Apprendi violation “where the defendant admitted the fact in

question” which justified an aggravated sentence.          Commonwealth v.

Johnson, 961 A.2d 877, 881 (Pa. Super. 2008), appeal denied, 968 A.2d

1280 (Pa. 2009) (emphasis supplied) (during closing argument, counsel

admitted an intimidated witness intended to testify in homicide case,

elevating crime of intimidation of witness to first degree felony).

      Here, Wilson, by virtue of his guilty plea, admitted the facts necessary

to impose the five to 10 year mandatory minimum sentences for his

convictions of rape and IDSI. With regard to victims C.C. and S.P., notice of

the girls’ respective ages at the time of the crimes - both under the age of

16 - was provided on Wilson’s criminal informations.             See Criminal

Information, Docket No. 1093-2012, 2/1/2012; Criminal Information, Docket


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No. 1091-2012, 2/1/2012.11          Moreover, during the guilty plea hearing the

Commonwealth specifically stated:              (1) S.P. was “under 16” when Wilson

raped her, (2) and Wilson sexually assaulted C.C. when she was between

the ages of 10 and 15. N.T., 6/17/2013, at 11, 18-20. See also id. at 22

(Commonwealth stating “from 14 to 18 years old, [Wilson] had a sexual

relationship with [S.P.]”). Wilson agreed, under oath, to all of the facts as

stated by the Commonwealth, with the exception that he asserted the sexual

relationship with C.C. did not begin until she was 13 years old. See id. at

28. Consequently, our review of the record demonstrates Wilson admitted

the facts necessary to impose the mandatory sentence for the charges of

rape and IDSI, that is, that the two victims were under the age of 16 at the

time he sexually assaulted them, and his sentence is not constitutionally

invalid under Alleyne.12

       Judgment of sentence affirmed.


____________________________________________


11
   With regard to Wilson’s criminal information at Docket No. 1091-2012, for
vicitm S.P., we note that S.P.’s age is not listed under the count for rape.
However, the information does specify S.P. was under the age of 16 for the
crime of statutory sexual assault. Although Wilson did not plead guilty to
the latter crime, the facts and elements of the crimes as set forth by the
Commonwealth at the guilty plea hearing clearly demonstrate S.P. was
under the age of 16 when Wilson raped her.
12
   We note that the trial court did not address the Alleyne issue in its
opinion because, we noted supra, Wilson raised the claim for the first time in
his brief before this Court.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




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