J-S21035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

TROY GIBSON,

                            Appellee                 No. 2675 EDA 2014


           Appeal from the Judgment of Sentence September 2, 2014
               in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0002594-2014


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 06, 2015

        The Commonwealth appeals from the judgment of sentence imposed

after Appellee, Troy Gibson, pleaded guilty pursuant to an open plea to three

counts of criminal conspiracy and one count each of knowing and

intentional/simple possession of a controlled substance, possession with

intent to deliver a controlled substance (PWID), and possession of drug

paraphernalia.1 We affirm.

        On September 2, 2014, Appellee pleaded guilty to the above crimes

and stipulated that he possessed 2.09 grams of heroin with the intent to

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*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. § 903 and 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32),
respectively.
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distribute.     The Commonwealth requested that the court impose the

mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i) on

the charge of PWID.         The trial court denied the Commonwealth’s request

pursuant to this Court’s holding in Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014) (en banc).            (See N.T. Guilty Plea and Sentencing,

9/02/14, at 12). It sentenced Appellee to a standard range term of not less

than eight nor more than sixteen months’ incarceration on the charge of

PWID, and to concurrent terms of not less than eight nor more than sixteen

months’ incarceration on the charge of conspiracy to commit PWID, and not

less than six nor more than twelve months’ incarceration on the charge of

possession of drug paraphernalia.2 (See id. at 12-14). The Commonwealth

timely appealed.3

       The Commonwealth raises one question for our review: “Did the trial

court erroneously fail to apply the two-year mandatory minimum for

commission of [the] offense [of PWID]?”           (Commonwealth’s Brief, at 5).

Specifically, the Commonwealth claims that, because Appellee waived his

right to a jury trial when he entered a guilty plea, and admitted to

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2
 The conviction for knowing and intentional possession merged for
sentencing purposes.
3
  Pursuant to the court’s order, the Commonwealth filed a timely Rule
1925(b) statement of errors complained of on appeal on October 6, 2014.
See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 31, 2014.
See Pa.R.A.P. 1925(a).



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possessing more than two grams of heroin with the intent to distribute, the

“[i]mposition of the mandatory sentence did not implicate the Sixth

Amendment jury trial right established in Alleyne [v. United States, 133 S.

Ct. 2151 (2013).]” (Id. at 7). The Commonwealth’s issue does not merit

relief.

                 At the outset, we note that issues pertaining to Alleyne go
          directly to the legality of the sentence. . . . An illegal sentence
          must be vacated. Issues relating to the legality of a sentence
          are questions of law[.] . . . Our standard of review over such
          questions is de novo and our scope of review is plenary.

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citations

and quotation marks omitted).

          Here, the trial court denied the Commonwealth’s request that it

sentence Appellee pursuant to the mandatory minimum provided by 18

Pa.C.S.A. § 7508, which provides, in pertinent part:

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

                                      *    *    *

               (7) 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 or a
          mixture containing it is heroin shall, upon conviction, be
          sentenced as set forth in this paragraph:

                (i) when the aggregate weight of the compound or
                mixture containing the heroin involved is at least 1.0
                gram but less than 5.0 grams the sentence shall be a
                mandatory minimum term of two years in prison and
                a fine of $5,000 . . . .


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                                 *      *   *

     (b) Proof of sentencing.─Provisions of this section shall not be
     an element of the crime. Notice of the applicability of this
     section 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 evidence
     presented at trial, shall afford the Commonwealth and the
     defendant an opportunity to present necessary additional
     evidence and shall determine, by a preponderance of the
     evidence, if this section is applicable.

18 Pa.C.S.A. § 7508(a)(7)(i) and (b).

     However,

     [a] panel of this Court recently held that our en banc opinion in
     [Newman, supra,] 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. [] Fennell, [supra at] 15-20[].

Commonwealth v. Vargas, 2014 WL 7447678, at *17 (Pa. Super. filed

Dec. 31, 2014) (en banc).

     Specifically, in Fennell:

            [The defendant] stipulated to laboratory reports that, at a
     minimum, suggest that the total weight of the heroin was 2.035
     grams.      As a result, the trial court concluded that the
     Commonwealth did prove this element to the trial court beyond
     a reasonable doubt, as required by Alleyne . . . . However, the
     trial court’s opinion reveals that this conclusion was solely
     premised on its belief that Section 7508(b), which permits the
     trial court to find the necessary elements by a preponderance of
     the evidence, was severable from the rest of the statute.
     Pursuant to this Court’s decision in Newman, this conclusion
     was not correct.




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           Furthermore, we see no meaningful difference, for the
     purposes of Newman and Valentine, between submitting the
     element to the jury and accepting a stipulation from a
     defendant. They both have the purpose of finding a method to
     impose a mandatory minimum sentence outside the statutory
     framework, but consistent with Alleyne.          However, both
     Newman and Valentine unequivocally state that creating a
     new procedure in an effort to impose a mandatory minimum
     sentence is solely within the province of the legislature. While
     submission to a jury is a more formal and involved procedure,
     we decline to fracture Newman and Valentine further by
     concluding that when read together, they only prohibit formal
     mandatory minimum procedures, but permit informal ones.
     Based on these considerations, we conclude that the trial court
     erred in imposing the mandatory minimum sentence in this case.

Fennell, supra at 20 (citations omitted).

     Here, Appellee pleaded guilty and stipulated to possessing over two

grams of heroin. (See N.T. Guilty Plea, 9/02/14, at 5). Although Fennell

submitted to a bench trial, see Fennell, supra at 15, this difference in

procedural posture does not affect our analysis.     In fact, any sentence

imposed pursuant to section 7508 is illegal because the statute is

unconstitutional. See Vargas, supra at *17. Allowing the imposition of a

mandatory minimum sentence pursuant to section 7508 on the basis that

Appellee has pleaded guilty would impermissibly “[create] a new procedure

in an effort to impose a mandatory minimum sentence[, which] is solely

within the province of the legislature.” Fennell, supra at 20.

     Accordingly, we conclude that the trial court properly denied the

Commonwealth’s request that it impose the mandatory minimum provision

of section 7508, and instead sentenced Appellee in accordance with the


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sentencing guidelines.       (See N.T. Guilty Plea and Sentencing, 9/02/14, at

12-14); see also Vargas, supra at *17; Fennell, supra at 20.               The

Commonwealth’s issue lacks merit.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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4
  We decline the Commonwealth’s invitation to reverse Appellee’s judgment
of sentence, and to, in effect overrule our prior decisions “holding that
mandatory minimum sentences are unconstitutional.” (Commonwealth’s
Brief, at 11; see id. at 11-15). These cases remain binding precedent that
we are bound to follow. See Commonwealth v. Reed, 107 A.3d 137, 143
(Pa. Super. 2014) (“This Court is bound by existing precedent under the
doctrine of stare decisis and continues to follow controlling precedent as long
as the decision has not been overturned by our Supreme Court.”) (citation
and footnote omitted).



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