Com. v. Prinkey, M.

J-S32006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MARK ALLEN PRINKEY,

Appellant No. 925 WDA 2014

Appeal from the Judgment of Sentence February 19, 2014
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000242-2007

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 28, 2015

Appellant, Mark Allen Prinkey, appeals from the judgment of sentence

entered for his convictions of attempted indecent assault of a person less

than thirteen years of age and corruption of a minor, which the trial court

imposed after this Court vacated Appellant’s previous judgment of sentence

and remanded for resentencing. We affirm.

In addressing Appellant’s prior appeal from the denial of PCRA relief,

this Court provided a detailed summary of the history of this matter as

follows:

The evidence in this case established that Appellant took a
seven-year old female child into a barn to feed calves, despite
the victim first telling him that she did not want to go. While in
the barn area, after Appellant fed the calves, he asked the young
child if she had a boyfriend or if she had ever kissed a boy. The
victim answered no. Appellant then went down on his knees and
placed his hands on her shoulders. The victim then fled the barn
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and told her teenage half-sister1 and another friend about these
actions and that Appellant attempted to kiss her.2
1
The sister is Appellant’s daughter.
2
The court admitted this evidence under the excited
utterance hearsay exception.

When the victim’s mother arrived, the victim relayed the
same information to her mother, stating that she thought
Appellant was going to try to kiss her.3 In an interview with
police, Appellant stated that he guessed his intent was pleasure
and that if he did kiss the victim that the incident could have
possibly escalated to additional sexual acts, including the victim
potentially performing oral sex. He did not indicate that he
intended for the victim to perform oral sex, although he did
admit that he intended to kiss the girl.
3
At trial, the victim did not testify that Appellant
tried to kiss her, only that he touched her shoulder
after kneeling down. She also testified that he did
not pull her face to kiss her. The statement to her
mother was admitted under 42 Pa.C.S. § 5985.1, the
tender years hearsay exception.

Police charged Appellant with attempted involuntary
deviate sexual intercourse (“IDSI”) with a child, attempted
indecent assault with a person less than thirteen years of age,
and corruption of the morals of a minor. Appellant proceeded to
a jury trial. At trial, Appellant objected to his statement to police
being introduced on the basis of the corpus delicti rule. The trial
court briefly heard argument and overruled the objection.
Thereafter, Corporal Shawn Sankey, who questioned Appellant,
took the stand and Appellant’s interview with police was played
for the jury. The trial court also provided a transcript of the
interview to the jury.4 After the Commonwealth completed its
case-in-chief, Appellant took the stand and acknowledged that
he asked the victim if she had a boyfriend or if she had kissed a
boy. He denied attempting to kiss the victim, and asserted that
he only made that statement due to police coercion.
4
We note that the recording was not transcribed and
the certified record before this Court does not
contain a transcript of the interview. Appellant,

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however, does not challenge the substance of
statement and the record contains sufficient
information for this Court to address his issues.

The jury returned guilty verdicts for the aforementioned
charges. The court found Appellant to be a sexually violent
predator (“SVP”), and imposed an aggregate sentence of ten to
twenty-five years incarceration. Appellant filed a timely post-
sentence motion, which the trial court denied. A timely direct
appeal ensued and the court ordered Appellant to comply with
Pa.R.A.P. 1925(b). Appellant’s counsel failed to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
This Court remanded to allow counsel the opportunity to file a
nunc pro tunc 1925(b) statement. Thereafter, Appellant
submitted a 1925(b) statement and the matter proceeded. On
appeal, Appellant challenges the sufficiency of the evidence, the
weight of the evidence, and his classification as an SVP.5 In
addition, though not specified in his statement of questions
involved, Appellant argued that the trial court erred in admitting
his statement to police in violation of the corpus delicti rule.
5
The record demonstrates that trial counsel
represented Appellant pre-trial through the post-
sentence motion phase of the proceedings.
Appellant was then appointed a public defender for
purposes of his direct appeal, and that attorney filed
the original brief. However, Appellant’s original trial
counsel re-entered the case and filed both a
Pa.R.A.P. 1925(b) statement and a new brief, which
he testified was only a reply brief.

A panel of this Court found that Appellant’s sufficiency of
the evidence claims were waived because his position was
“woefully undeveloped[.]” Commonwealth v. Prinkey, [181
WDA 2009,] 15 A.3d 529 (Pa. Super. 2010) (unpublished
memorandum, at 5). Similarly, it held that Appellant’s weight of
the evidence arguments were too undeveloped to be reached.
The panel also determined that Appellant’s corpus delicti
argument was waived because he did not include it in his
statement of questions involved. Ultimately, the panel found all
of Appellant’s arguments waived due to inadequate briefing,
except for his challenge to his classification as a sexually violent
predator.

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Appellant filed a timely pro se PCRA petition on November
22, 2010, and an amended pro se petition on August 18, 2011.
No order appointing counsel appears of record, nor does the
certified record contain an entry of appearance by private
counsel. See Pa.R.Crim.P. 904. However, counsel filed a
second amended petition on December 17, 2011, and an
addendum to that petition three days later. The PCRA court
conducted an evidentiary hearing on January 12, 2012, and
denied Appellant’s petition on April 11, 2012.

Commonwealth v. Prinkey, 777 WDA 2012, 83 A.3d 1080 (Pa. Super.

filed August 30, 2013) (unpublished memorandum at 1-5).

On appeal from the denial of PCRA relief, this Court concluded that

direct appeal counsel was ineffective for inadequately briefing a sufficiency

of the evidence claim pertaining to the conviction for attempted involuntary

deviate sexual intercourse and stated the following:

In conclusion, while direct appeal counsel’s representation
was far from adequate, Appellant is not entitled to reinstatement
of his direct appeal rights. Further, because Appellant’s
sufficiency claims for attempted indecent assault and corruption
of the morals of a minor would not warrant relief, appellate
counsel did not render constitutionally defective representation
by submitting a faulty brief as to those issues. Concomitantly,
appellate counsel was not ineffective for failing to properly raise
Appellant’s corpus delicti position. Nevertheless, since appellate
counsel’s inadequate briefing precluded this Court from reaching
a meritorious sufficiency claim for Appellant’s attempted
[involuntary deviate sexual intercourse] conviction, we find that
appellate counsel was ineffective.

Prinkey, 777 WDA 2012, 83 A.3d 1080 (unpublished memorandum at 17).

Consequently, this Court reversed Appellant’s conviction for attempted

involuntary deviate sexual intercourse, vacated his judgment of sentence

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and remanded for resentencing because our determination upset Appellant’s

sentencing scheme. Id.

Upon remand for resentencing, the Commonwealth served notice of its

intent to seek a mandatory sentence pursuant to 42 Pa.C.S. § 9718.2, which

mandates a minimum sentence of not less than twenty-five years for the

conviction of attempted indecent assault.1 Appellant then filed a motion to

dismiss the Commonwealth’s notice. The trial court received briefs from the

parties, and on February 19, 2014, immediately prior to resentencing, heard

oral arguments and denied Appellant’s motion to dismiss. Thereafter, the

trial court sentenced Appellant to serve a term of incarceration of twenty-

five to fifty years for the conviction of attempted indecent assault, and a

consecutive term of incarceration of eighteen to thirty-six months for the

conviction of corruption of minors. Appellant filed a timely post-sentence

motion, which the trial court denied on May 8, 2014. This timely appeal

followed.

Appellant presents the following issues for our review:

[1.] WHETHER THE APPELLANT’S 25-YEAR MANDATORY
SENTENCE WAS AN ILLEGAL MANDATORY SENTENCE BECAUSE
IT WAS NOT SOUGHT AFTER NOR IMPOSED AT THE FIRST
SENTENCING?

____________________________________________

1
The Commonwealth did not file a notice of its intent to seek the mandatory
provisions of 42 Pa.C.S. § 9718.2 prior to the filing of the notice upon
remand.

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[2.] WHETHER THE COMMONWEALTH IS BARRED FROM
SEEKING A MANDATORY SENTENCE AT A SECOND SENTENCING
WHEN NOTICE OF INTENT TO SEEK THE MANDATORY WAS NOT
GIVEN AT THE FIRST SENTENCING.

[3.] WHETHER THE APPELLANT’S 25-YEAR MANDATORY
SENTENCE WAS AN ILLEGAL SENTENCE PURSUANT TO THE
STATUTE IN EFFECT AT THE TIME OF SENTENCING AND
PURSUANT TO THE ALLEYNE LINE OF CASES?

Appellant’s Brief at 3.

Appellant first argues that his twenty-five year mandatory minimum

sentence was illegal because the Commonwealth failed to give him proper

timely notice pursuant to 42 Pa.C.S. § 9718.2. Relying upon section

9718.2(d), Appellant contends that under the statute in effect at the time of

the commission of the crimes in question, and the time of his trial, the

Commonwealth was required to give notice of the application of the

mandatory minimum sentence prior to trial. We disagree.

Application of a mandatory sentencing provision implicates the
legality, not the discretionary, aspects of sentencing. In
reviewing the trial court’s interpretation of statutory language,
we are mindful of the well-settled rule that statutory
interpretation implicates a question of law. Thus, our scope of
review is plenary, and our standard of review is de novo.

Commonwealth v. Dixon, 53 A.3d 839, 842 (Pa. Super. 2012) (citations

omitted).

At the time of Appellant’s trial, 42 Pa.C.S. § 9718.2 addressed

mandatory minimum sentences for repeat sex offenders and provided, in

relevant part, as follows:

§ 9718.2. Sentences for sex offenders

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***

(c) Proof of sentencing.--The 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.

***

(d) Authority of court in sentencing.--Notice of the
application of this section shall be provided to the defendant
before trial. If the notice is given, there shall be no authority in
any court to impose on an offender to which this section is
applicable any lesser sentence than provided for in subsections
(a) and (b) or to place the offender on probation or to suspend
sentence. . . .

42 Pa.C.S. § 9718.2(c) and (d) (emphasis added).2

Our research has failed to reveal any published appellate opinions

interpreting the notice requirement of 42 Pa.C.S. § 9718.2(d). 3 Thus, the

____________________________________________

2
The Legislature amended 42 Pa.C.S. § 9718.2 effective December 20,
2012, eliminating the pretrial notice requirements of subsection (d).
3
We observe that in Commonwealth v. Steckley, 1738 MDA 2010, 32
A.3d 835) (Pa. Super. filed August 16, 2011) (unpublished memorandum) a
panel of this Court issued a non-precedential decision that addressed
whether the Commonwealth was required to provide notice of the application
of a mandatory sentence prior to trial pursuant to 42 Pa.C.S. § 9718.2(d).
The Court in Steckley ultimately concluded that the Commonwealth did not
have the responsibility to give the section 9718.2(d) pretrial notice to
Steckley. We further observe that on April 4, 2012, our Supreme Court
granted allocatur in Steckley. Commonwealth v. Steckley, 41 A.3d 855
(Pa. 2012). However, on May 28, 2013, our Supreme Court issued an order
(Footnote Continued Next Page)

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notice that the Commonwealth was required to give to Appellant pursuant to

42 Pa.C.S. § 9718.2 is a question of statutory construction. The Statutory

Construction Act of 1972 (“Act”) controls. 1 Pa.C.S. § 1501 et seq. The Act

states in relevant part that, “the object of all interpretation and construction

of statutes is to ascertain and effectuate the intention of the General

Assembly, and ‘[w]hen the words of a statute are clear and free from all

ambiguity, the letter of it is not to be disregarded under the pretext of

pursuing its spirit.’” 1 Pa.C.S. § 1921(a), (b). A court should not resort to

other considerations, such as the General Assembly’s purpose in enacting a

statute, unless the words of the statute are not explicit. 1 Pa.C.S. §

1921(c). The Act also states that “[w]ords and phrases shall be construed

according to the rules of grammar and according to their common and

approved usage,” however “technical words and phrases and such others as

have acquired a peculiar and appropriate meaning . . . shall be construed

according to such peculiar and appropriate meaning.” 1 Pa.C.S. § 1903(a).

We further recognize that penal provisions are to be strictly construed, 1

Pa.C.S. § 1928*b)(1), and that we are to presume the General Assembly did

not intend an absurd result, impossible of execution, or unreasonable. 1

Pa.C.S. § 1922(1). Statutory construction requires that provisions in a

_______________________
(Footnote Continued)

dismissing the appeal as having been improvidently granted.
Commonwealth v. Steckley, 67 A.3d 758 (Pa. 2013).

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statute should be construed “if possible, so that effect may be given to

both.” 1 Pa.C.S. § 1933.

In applying these principles, we disagree with Appellant that section

9718.2(d) imposed upon the Commonwealth a requirement to provide

Appellant notice of application of the mandatory minimum sentence before

trial. That determination would require a complete dismissal of the language

of section 9718.2(c). There is no doubt that section 9718.2(d) places no

specific duty upon the Commonwealth. Rather, section 9718.2(d) requires a

defendant be given notice of the statute’s applicability prior to trial, without

specifying the party to provide the notice. Although it may have been in the

Commonwealth’s interest to provide Appellant with the section 9718.2(d)

pretrial notice, unlike section 9718.2(c), section 9718.2(d) places no

requirement upon the Commonwealth to provide that particular notice.

Therefore, because section 9718.2(d) did not specifically impose upon

the Commonwealth the requirement to provide a pretrial notice, Appellant’s

contention the Commonwealth’s notice was not in accord with section

9718.2(d) fails.

In addition, Appellant attempts to argue that, because his

resentencing was precipitated by “a charge being dismissed due to

insufficient evidence,” the imposition of the mandatory minimum sentence

on another conviction that was upheld on appeal “should be barred at the

second sentencing.” Appellant’s Brief at 9. In essence, Appellant contends

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that principles of double jeopardy somehow prevented the Commonwealth

from seeking imposition of a mandatory sentence upon resentencing. Id. 9-

10.

As the Pennsylvania Supreme Court explained:

The proscription against twice placing an individual in
jeopardy of life or limb is found in the Fifth Amendment to the
United States Constitution, made applicable to the states
through the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The
double jeopardy protections afforded by our state constitution
are coextensive with those federal in origin; essentially, both
prohibit successive prosecutions and multiple punishments for
the same offense. Commonwealth v. Fletcher, 580 Pa. 403,
861 A.2d 898, 912 (Pa. 2004). We have described double
jeopardy rights as “freedom from the harassment of successive
trials and the prohibition against double punishment.”
Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 318 (Pa.
1980) (plurality).

Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007). Thus, “[a]n

individual may be punished only once for a single act which causes a single

injury to the Commonwealth.” Commonwealth v. Williams, 753 A.2d

856, 864 (Pa. Super. 2000) (citing Commonwealth v. Owens, 649 A.2d

129 (Pa. Super. 1994)).

Our review of the record reflects that Appellant was convicted of

attempted involuntary deviate sexual intercourse with a child, attempted

indecent assault of a person less than thirteen years of age, and corruption

of a minor. Appellant was then sentenced to serve an aggregate term of

incarceration of ten to twenty-five years. On appeal from the denial of PCRA

relief, this Court found that Appellant’s direct appeal counsel was ineffective

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for failing to adequately brief a meritorious issue challenging the sufficiency

of the evidence to support Appellant’s conviction of attempted involuntary

deviate sexual intercourse. In granting Appellant relief, this Court

specifically stated the following:

Accordingly, we reverse Appellant’s conviction for
attempted [involuntary deviate sexual intercourse] and vacate
his judgment of sentence. As our reversal is based on
insufficient evidence, Appellant cannot be re-tried for attempted
[involuntary deviate sexual intercourse] and he is discharged as
to that crime. In addition, because our reversal causes his
judgment of sentence for attempted [involuntary deviate sexual
intercourse] to be vacated, it upsets Appellant’s sentencing
scheme and we remand for resentencing.

Prinkey, 777 WDA 2012, 83 A.3d 1080 (unpublished memorandum at 17).

Thus, this Court effectively prevented an issue of double jeopardy by

discharging the crime of attempted involuntary deviate sexual intercourse

and ordering the trial court to resentence Appellant as to the two convictions

that were left standing.

The record further reflects that, upon remand to the trial court,

Appellant was not retried for attempted involuntary deviate sexual

intercourse, nor was he resentenced for that crime, as that conviction was

discharged. Rather, Appellant was resentenced for his convictions of

attempted indecent assault and corruption of a minor as directed by this

Court. Accordingly, we fail to see how the trial court’s action in following

this Court’s explicit directive implicates the proscription against double

jeopardy. Thus, this claim fails.

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In his second issue, Appellant argues that the Commonwealth should

have been barred from seeking a mandatory sentence at resentencing.

Appellant alleges that, because the Commonwealth did not seek imposition

of the mandatory sentence at his first sentencing, it was precluded from

seeking the mandatory sentence at the time of resentencing. Appellant’s

Brief at 10-11. Appellant asserts that “[b]ecause no notice of the intent to

seek a mandatory sentence was given at the first sentencing, the mandatory

sentence is no longer a sentencing option.” Id. at 10.4 Upon review, we

conclude that Appellant is not entitled to relief.

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4
In support of his claim, Appellant relies upon our Supreme Court’s decision
in Commonwealth v. Mazzetti, 44 A.3d 58 (Pa. 2012). However, we find
Mazzetti to be distinguishable from the facts of the instant case because, in
Mazzetti, the Commonwealth agreed to waive the relevant mandatory
minimum sentence pursuant to a plea agreement. Subsequently, Mazzetti
violated his probation and upon resentencing, the Commonwealth sought to
invoke the mandatory minimum sentence. Ultimately, our Supreme Court
concluded that the Commonwealth could not compel the trial court to
impose the mandatory minimum sentence following the revocation of
Mazzetti’s probation. Specifically, the Mazzetti Court stated the following:

Since the trial court is vested with the same alternatives at
resentencing [following revocation of probation] that were
originally available, and the Commonwealth waived the initial
applicability of the mandatory minimum, the court had no
obligation to apply the same at resentencing.

Id. at 68. However, the instant matter involves neither a waiver by the
Commonwealth to the mandatory minimum sentence pursuant to a plea
agreement, nor a resentencing following the revocation of probation. Thus,
we conclude that application of Mazzetti to this case would be misplaced.

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Our Supreme Court has held that a defendant has “no legitimate

expectation of finality in his sentence after he has filed an appeal

therefrom.” Commonwealth v. Wilson, 934 A.2d 1191, 1195 (Pa. 2007).

When a sentence is vacated it is rendered a legal nullity. Id. at 1196. In

Wilson, the Supreme Court ruled that the Commonwealth could introduce

evidence in support of a sentencing enhancement after remand that it did

not introduce at the first sentencing proceeding. Id. at 1198. Furthermore,

we have explained that “[w]hen a sentence is vacated and the case is

remanded to the sentencing court for resentencing, the sentencing judge

should start afresh.” Commonwealth v. Jones, 640 A.2d 914, 919–920

(Pa. Super. 1994).

It is undisputed that, due to a prior conviction, the mandatory

minimum sentence would have been a part of Appellant’s original sentence if

the Commonwealth had provided notice of its intention to proceed under 42

Pa.C.S. § 9718.2 at that time. However, the Commonwealth initially did not

provide the appropriate notice, and the trial court imposed a sentence

without employing the mandatory minimum under section 9718.2.

Subsequently, this Court vacated Appellant’s judgment of sentence and

remanded for resentencing, which rendered the original sentence a legal

nullity. Wilson, 934 A.2d at 1196. Further, our review indicates that prior

to resentencing, the Commonwealth issued the proper notice of its intention

to proceed under 42 Pa.C.S. § 9718.2. At the time of resentencing, once

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the Commonwealth issued the proper notice regarding the mandatory

minimum sentence, the trial court had a duty to proceed under that

provision. Hence, we discern no error.5

In Appellant’s third issue he argues that the trial court imposed an

illegal sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013), when it applied a mandatory minimum sentence based upon a prior

conviction. Appellant’s Brief at 11. Appellant claims that the fact that he

was previously convicted of involuntary deviate sexual intercourse should

have been submitted to the jury.

Again, application of a mandatory sentencing provision implicates the

legal, not the discretionary, aspects of sentencing. Dixon, 53 A.3d at 842.

Thus, our scope of review is plenary, and our standard of review is de novo.

Id.

We observe that in Alleyne the United States Supreme Court

determined that any fact that increases a mandatory minimum sentence is

an element of the crime, not a sentencing factor, and must be submitted to

the jury to be determined beyond a reasonable doubt. Alleyne, 133 S.Ct.

____________________________________________

5
We recognize that Appellant alleges that he was not advised of the twenty-
five year mandatory by anyone prior to remand, and that he would not
have sought a direct appeal or PCRA relief after the twenty-five year
mandatory minimum sentence was not originally imposed had he been made
aware of it. Thus, although we deny relief at this juncture, we do so without
prejudice to Appellant to seek PCRA relief on a possible ineffective assistance
of counsel claim.

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at 2155, 2161, 2163. The Court in Alleyne noted that “the essential Sixth

Amendment inquiry is whether a fact is an element of the crime. When a

finding of fact alters the legally prescribed punishment so as to aggravate it,

the fact necessarily forms a constituent part of a new offense and must be

submitted to the jury.” Id. at 2162. However, Alleyne does not require

that the fact of a prior conviction must be presented at trial and found

beyond a reasonable doubt. Id. at 2160 n.1 (noting “In Almendarez–

Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350

(1998), we recognized a narrow exception . . . for the fact of a prior

conviction.”). See also United States v. Blair, 734 F.3d 218, 227 (3d Cir.

2013) (observing that “Alleyne d[id] nothing to restrict the established

exception under Almendarez–Torres that allows judges to consider prior

convictions.”); Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).

Moreover, this Court recently stated the following:

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 v. United States, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013), insofar as a factfinder 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).

Therefore, mandatory minimum sentences for recidivism remain

constitutional in Pennsylvania.

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Appellant was sentenced under 42 Pa.C.S. § 9718.2. That statute

provides for mandatory sentences for a defendant previously convicted of

various sex offenses. Because the fact triggering the mandatory minimum

sentence is a prior conviction, neither Apprendi nor Alleyne prevents the

imposition of a mandatory minimum sentence in this instance. Therefore,

Appellant’s contrary argument lacks merit.

Judgment of sentence affirmed.

Judge Olson Concurs in the Result.

Judge Musmanno files a Dissenting Memorandum Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015

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