J-S66041-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD GLENN BOWERS, :
:
Appellant : No. 896 WDA 2015
Appeal from the Judgment of Sentence Entered May 12, 2015,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0000820-2009
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 19, 2015
Richard Glenn Bowers (Appellant) appeals from a judgment of
sentence entered in connection with his conviction for indecent assault of a
person less than 13 years of age. We affirm.
After a jury convicted Appellant of the aforementioned offense, the
trial court sentenced Appellant to a mandatory sentence of life in prison
pursuant to 42 Pa.C.S. § 9718.2(a)(2). On appeal, Appellant argued, inter
alia, that his sentence was illegal because, at the time of his current offense,
he had not been previously convicted of two or more offenses arising from
separate criminal transactions set forth in 42 Pa.C.S. § 9795.1(a) or (b).
This Court agreed, concluding that, because Appellant had one relevant
previous offense, Appellant should have been sentenced to a mandatory
minimum sentence of 25 years in prison pursuant to 42 Pa.C.S.
*Retired Senior Judge assigned to the Superior Court.
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§ 9718.2(a)(1). Commonwealth v. Bowers, 118 A.3d 446 (Pa. Super.
2015) (unpublished memorandum). Consequently, this Court vacated
Appellant’s judgment of sentence and remanded the case to the trial court
for resentencing under subsection 9718.2(a)(1). Id.
On May 12, 2015, the trial court sentenced Appellant consistent with
this Court’s instructions. Appellant timely filed a notice of appeal. The crux
of Appellant’s argument on appeal is that subsection 9718.2(a)(1) is
unconstitutional, rendering his sentence illegal.
Subsection 9718.2(a)(1) provides:
Any person who is convicted in any court of this Commonwealth
of an offense set forth in section 9799.14 (relating to sexual
offenses and tier system) shall, if at the time of the commission
of the current offense the person had previously been convicted
of an offense set forth in section 9799.14 or an equivalent crime
under the laws of this Commonwealth in effect at the time of the
commission of that offense or an equivalent crime in another
jurisdiction, be sentenced to a minimum sentence of at least 25
years of total confinement, notwithstanding any other provision
of this title or other statute to the contrary….
42 Pa.C.S. § 9718.2(a)(1).
Appellant does not dispute that he previously was convicted of a
qualifying offense under this statute. Instead, he argues that subsection
9718.2(a)(1) is unconstitutional pursuant to Alleyne v. United States, 133
S.Ct. 2151 (2013) and its progeny.
In Alleyne, “the United States Supreme Court [] held that any facts
leading to an increase in a mandatory minimum sentence are elements of
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the crime and must be presented to a jury and proven beyond a reasonable
doubt.” Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super.
2014). However, this Court has explained that
[p]rior 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. ––– U.S. ––––, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013), insofar as a fact-finder is
not required to determine disputed convictions beyond a
reasonable doubt to comport with the Sixth Amendment jury
trial right.
Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014)
(citations omitted).
Thus, because the mandatory minimum sentence contained in
subsection 9718.2(a)(1) is predicated upon prior convictions, Alleyne does
not render it unconstitutional. Consequently, none of the issues or
arguments presented by Appellant on appeal warrants relief. We therefore
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
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