J-S45007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VIKRAM YAMBA,
Appellant No. 890 WDA 2015
Appeal from the PCRA Order of May 21, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001536-2012
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 4, 2016
Appellant, Vikram Yamba, appeals from the order entered on May 21,
2015, denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the order of the PCRA
court, vacate the judgment of sentence, and remand for resentencing.
On January 8, 2013, a jury found Appellant guilty of two counts of
robbery, two counts of aggravated assault, and one count each of simple
assault, recklessly endangering another person, and attempt to commit theft
by unlawful taking.1 See N.T. Trial, 1/8/13, at 131-134. The convictions
arose out of Appellant’s armed entry into a convenience store, in an attempt
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 2702(a)(1) and (4), 2701(a)(3),
2705, and 901(a), respectively.
*Retired Senior Judge assigned to the Superior Court.
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to take money from the register. Upon learning that there was no cash in
the register, Appellant fired two shots in random directions before fleeing
through the front door. An employee heard a third gunshot and watched the
glass in the door shatter after they left.
After conviction and prior to sentencing, the Commonwealth filed a
“Notice of the Commonwealth’s Intention to Proceed Under the Mandatory
Sentencing Provision of 42 Pa.C.S.A. [§] 9712.” Within the notice, the
Commonwealth informed Appellant that, in accordance with 42 Pa.C.S.A.
§ 9712, it intended to seek the mandatory minimum sentence of five years
in prison, as Appellant “visibly possessed a firearm . . . that placed the
victim in reasonable fear of death or serious bodily injury during the
commission of the offense.” Commonwealth’s Notice, 1/10/13, at 1; see
also 42 Pa.C.S.A. § 9712(a).
On February 12, 2013, the trial court held a sentencing hearing and,
during the hearing, the trial court specifically held the elements of Section
9712 were satisfied. See N.T. Sentencing, 2/12/13, at 10. Thus, at this
point, the trial court was statutorily required to sentence Appellant to the
mandatory minimum sentence of five years in prison. See 42 Pa.C.S.A.
§ 9712(a) (“any person who is convicted in any court of this Commonwealth
of a crime of violence as defined in section 9714(g) . . . shall, if the person
visibly possessed a firearm . . . that placed the victim in reasonable fear of
death or serious bodily injury, during the commission of the offense, be
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sentenced to a minimum sentence of at least five years of total
confinement”); 42 Pa.C.S.A. § 9712(c) (“[t]here 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 subsection (a)”). Moreover, the trial court did,
in fact, sentence Appellant to a term of five to 12 years in prison for
Appellant’s aggravated assault conviction – which satisfied Section 9712, as
the trial court sentenced Appellant “to a minimum sentence of at least five
years of total confinement.” 42 Pa.C.S.A. § 9712(a). Further, the trial court
signed a “Guideline Sentence Form,” where the trial court specifically noted
that it sentenced Appellant to the mandatory minimum sentence of 60
months in prison, under Section 9712, for visibly possessing a firearm.
Guideline Sentence Form, 2/13/13, at 1. Nevertheless, during the
sentencing hearing, the trial court attempted to justify its sentence on a
number of different grounds. During the sentencing hearing, the trial court
declared:
The [trial] court notes for the record that this sentence may
be justified in a number of fashions[.] First, the sentence
would fall in the aggravated range of the sentencing
guidelines should the deadly weapon enhancement
provision not be applied. And the court feels justified in
sentencing in the aggravated range of the sentencing
guidelines because the offense occurred while on active
supervision, serving two sentences in the federal district
court[.]
Furthermore, should the deadly weapon provision be
applied, this would fall in the standard range if the deadly
weapon enhancement provision were used. We have
listened to [Appellant’s] argument that there is insufficient
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evidence to sustain the deadly weapon enhancement
provision; however, we disagree and believe there is
sufficient evidence in the record to sustain the use of the
deadly weapon enhancement provision[.]
Finally, the sentence could be justified pursuant to the
mandatory sentencing provisions of 42 Pa.C.S.A. § 9712.
Again, we’ve listened to [Appellant’s] argument that the
victim was not actually in fear at the time of the incident.
However, we having heard her testimony we believe the
interpretation is, and inferences from that testimony, also
would support a conclusion that while perhaps in shock at
the initial happening of the incident, within seconds and
upon realization that the glass door had been shot/broken
by a bullet, that that fear set in and was recognizable by the
alleged victim[.]
Accordingly, under any of the three aforementioned
theories, the sentence of not less than five [] to [no] more
than [12] years [for aggravated assault] is justified by the
sentencing guidelines.
N.T. Sentencing Hearing, 2/12/13, at 9-10 (some internal capitalization
omitted).
The trial court imposed no further penalty for Appellant’s remaining
convictions. Id. at 10.
A prior panel of this Court summarized the procedural history of this
case as follows:
Appellant filed a post-sentence motion on February 26,
2013, which the trial court denied. Appellant filed a notice
of appeal with this Court on May 16, 2013. . . . On
December 27, 2013, this [C]ourt dismissed the notice of
appeal for failure of counsel to file a brief on Appellant’s
behalf. On January 21, 2014, Appellant filed a pro se
petition pursuant to the [PCRA]. The trial court appointed
counsel, who filed an amended PCRA petition on March 6,
2014, seeking reinstatement of Appellant’s direct appeal
rights. The trial court granted the PCRA petition and
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Appellant filed a nunc pro tunc notice of appeal on March
27, 2014.
Commonwealth v. Yamba, 106 A.3d 157 (Pa. Super. 2014) (unpublished
memorandum) at 3-4. This Court affirmed Appellant’s judgment of sentence
on August 11, 2014. Id. at 1-12. Appellant did not file a petition for
allowance of appeal to our Supreme Court.
On November 7, 2014, Appellant filed a timely, pro se PCRA petition.
The PCRA court appointed counsel to represent Appellant and counsel filed
an amended PCRA petition on Appellant’s behalf. Within the amended
petition, Appellant claimed that his sentence was illegal, as he was
sentenced to a mandatory minimum term of incarceration under 42
Pa.C.S.A. § 9712 and, in Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151 (2013), the United States Supreme Court effectively rendered
Section 9712 unconstitutional.2 Amended PCRA Petition, 1/15/15, at 1-3;
see also Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014)
(holding that Alleyne rendered 42 Pa.C.S.A. § 9712 wholly
unconstitutional).
On May 21, 2015, the PCRA court held a hearing on Appellant’s PCRA
petition and, at the conclusion of the hearing, the PCRA court denied
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2
We note that the United States Supreme Court decided Alleyne on June
17, 2013, which was after Appellant was sentenced but while Appellant’s
direct appeal was pending before this Court.
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Appellant’s petition on the record. N.T. PCRA Hearing, 5/21/15, at 10. As
the PCRA court later explained in its opinion:
Review of the sentencing proceedings transcript dated
February 12, 2013 clearly establishes that, while
acknowledging both the deadly weapon enhancement and
the mandatory sentencing requirement of [Section] 9712 in
existence at the time, [the trial court] expressly did not rely
on either of those provisions in determining [Appellant’s]
sentence. . . .
The sentence imposed was within the statutory sentencing
guidelines, albeit in the aggravated range, and the reasons
for that sentence appear on the record as required.
PCRA Court Opinion, 6/17/15, at 1 (some internal capitalization omitted).
Appellant filed a timely notice of appeal. Appellant presents the
following issue for our review:
Whether the PCRA court erred in denying [Appellant’s]
petition when [Appellant] was sentenced according to the
mandatory sentencing provisions of 42 Pa.C.S.A. § 9712?
Appellant’s Brief at 3.
We observe our well-established standard of review: “In reviewing the
denial of PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa. 2014) (internal quotations and citations omitted).
Alleyne challenges implicate the legality of a sentence. A
challenge to the legality of a sentence may be entertained
as long as the reviewing court has jurisdiction. 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.
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Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal
citations, quotations, and corrections omitted).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held: “[o]ther 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.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States
Supreme Court expanded “Apprendi’s basic jury-determination rule to
mandatory minimum sentences.” Alleyne, ___ U.S. at ___, 133 S.Ct. at
2167 (Breyer, J., concurring). Specifically, the Alleyne court held that,
where an “aggravating fact” increases a mandatory minimum sentence, “the
fact is an element of a distinct and aggravated crime. [The fact] must,
therefore, be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S.Ct. at 2162-2163.
As this Court has held, Alleyne rendered 42 Pa.C.S.A. § 9712 wholly
unconstitutional. Valentine, 101 A.3d at 812. However, Appellant was
sentenced on February 12, 2013 and Alleyne was not decided until June 17,
2013. Therefore, at the time Appellant was sentenced, 42 Pa.C.S.A. § 9712
was still in force.3 The relevant portions of the statute read:
§ 9712. Sentences for offenses committed with firearms
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3
Again, the United States Supreme Court decided Alleyne while Appellant’s
direct appeal was pending before this Court.
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(a) Mandatory sentence.-- . . . any person who is
convicted in any court of this Commonwealth of a crime of
violence as defined in section 9714(g) . . . shall, if the
person visibly possessed a firearm or a replica of a firearm,
whether or not the firearm or replica was loaded or
functional, that placed the victim in reasonable fear of death
or serious bodily injury, during the commission of the
offense, be sentenced to a minimum sentence of at least
five years of total confinement notwithstanding any other
provision of this title or other statute to the contrary. Such
persons shall not be eligible for parole, probation, work
release or furlough.
(b) 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.
(c) Authority of court in sentencing.--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 subsection (a) or to place such offender on probation
or to suspend sentence. Nothing in this section shall prevent
the sentencing court from imposing a sentence greater than
that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on
Sentencing shall not supersede the mandatory sentences
provided in this section.
(d) Appeal by Commonwealth.--If a sentencing court
refuses to apply this section where applicable, the
Commonwealth shall have the right to appellate review of
the action of the sentencing court. The appellate court shall
vacate the sentence and remand the case to the sentencing
court for imposition of a sentence in accordance with this
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section if it finds that the sentence was imposed in violation
of this section.
42 Pa.C.S.A. § 9712.
Thus, under the law that existed at the time Appellant was sentenced,
where the Commonwealth filed notice that it intended to proceed under
Section 9712, and where the trial court found that the elements of Section
9712 were established by a preponderance of the evidence, the trial court
had no authority but to impose a sentence in accordance with the
provisions of that section. 42 Pa.C.S.A. § 9712(c). In other words, when
triggered by the Commonwealth’s notice, Section 9712 automatically limited
the trial court’s discretion in sentencing enumerated felonies committed with
a firearm. Commonwealth v. Foster, 17 A.3d 332, 347 (Pa. 2011);
Commonwealth v. Pittman, 528 A.2d 138, 143 (Pa. 1987).
Prior to sentencing in this case, the Commonwealth filed notice that, in
accordance with 42 Pa.C.S.A. § 9712, it intended to seek the mandatory
minimum sentence of five years in prison, as Appellant “visibly possessed a
firearm . . . that placed the victim in reasonable fear of death or serious
bodily injury during the commission of the offense.” Commonwealth’s
Notice, 1/10/13, at 1; see also 42 Pa.C.S.A. § 9712(a). Aggravated assault
is an enumerated crime of violence to which Section 9712 applies. 42
Pa.C.S.A. § 9714(g). Further, during the sentencing hearing, the trial court
determined that: Appellant visibly possessed a firearm; Appellant’s
possession of the firearm placed another in reasonable fear of death or
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serious bodily injury; and, such possession took place during the commission
of the offense. See N.T. Sentencing, 2/12/13, at 9-10. Therefore, the only
sentencing authority vested in the trial court was to sentence Appellant “to a
minimum sentence of at least five years of total confinement.” 42 Pa.C.S.A.
§ 9712(a). As such, the trial court had no discretion to alter the “floor” of
Appellant’s sentence, and any other justification it may have offered for
Appellant’s sentence is immaterial.4 Moreover, and as was explained above,
the trial court signed a “Guideline Sentence Form,” where the trial court
specifically noted that it sentenced Appellant to the mandatory minimum
sentence of 60 months in prison, under Section 9712, for visibly possessing
a firearm. Guideline Sentence Form, 2/13/13, at 1.
Therefore, in this case, the trial court sentenced Appellant to the
mandatory minimum sentence under Section 9712, and Appellant’s sentence
is clearly illegal. As such, we vacate the PCRA court’s order, vacate
Appellant’s judgment of sentence, and remand this case for resentencing.
Order vacated. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
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4
Further, it does not follow that, by sentencing Appellant to a term of five
to 12 years in prison (as opposed to a term of five to ten years in prison),
the trial court was exercising its own discretion without regard for the
mandatory sentence under Section 9712. See N.T. PCRA Hearing, 5/21/15,
at 6. Section 9712 expressly permits sentences greater than the mandatory
minimum and does not set an upward boundary on the term of years. 42
Pa.C.S.A. § 9712(c) (“Nothing in this section shall prevent the sentencing
court from imposing a sentence greater than that provided in this section”).
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Judge Dubow joins this Memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2016
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