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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
SHAWN BROOKS, :
:
Appellant : No. 3552 EDA 2014
Appeal from the PCRA Order January 10, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division No.: CP-51-CR-0005373-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JULY 08, 2016
Appellant, Shawn Brooks, appeals from the Judgment of Sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for three counts of Robbery, and one count each of
Burglary, Criminal Conspiracy, and Carrying a Firearm Without a License.1
Appellant challenges the constitutionality of his sentence pursuant to
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013). After careful review, we affirm Appellant’s convictions, vacate the
Judgment of Sentence, and remand for resentencing consistent with
Alleyne.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701; 18 Pa.C.S. § 3502; 18 Pa.C.S. § 903; and 18 Pa.C.S. §
6106, respectively.
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The trial court stated the relevant facts as follows:
In 2010, Appellant was charged with thirty-six separate
offenses, including three counts of robbery, three counts of
burglary, three counts of conspiracy to commit robbery,
violations of the Uniform Fire Arms Act (“VUFA”), and various
other theft, assault, and firearm violations. Appellant was
represented by Samuel Alboum, Esquire at trial. A jury trial was
held from April 7, 2011 to April 11, 2011. On April 11, 2011, a
mistrial was declared, as the jury was hopelessly deadlocked.
A second jury trial commenced on October 28, 2011. On
November 1, 2011, Appellant was found guilty of three counts of
robbery, one count of burglary, one count of conspiracy, and one
count of illegally carrying a firearm. The remaining charges had
been nolle prossed.
On January 10, 2010, the Court imposed an aggregate
sentence of eight to sixteen years of incarceration followed by
four years of reporting probation. According to Appellant, both
he and his family informed trial counsel at the sentencing
hearing that Appellant desired a Notice of Appeal to be filed. A
Notice of Appeal was never filed.
Appellant, through Mr. Alboum, filed a Post Sentence
Motion to Modify Sentence on January 19, 2012, arguing for
sentence reduction in light of testimony during the first trial that
Appellant had expressed concern for a child allegedly present in
the home during the robbery. See Notes of Testimony (“N.T.”),
4/08/11 at 58. The Court granted the Motion on January 23,
2012, and it issued an Order reducing the minimum on one of
Appellant’s three robbery sentences by one year. The Order
therefore reduced Appellant’s aggregate sentence to seven to
sixteen years of incarceration followed by four years of reporting
probation.
On August 12, 2012, Appellant filed a Petition pursuant to
the Post Conviction Relief Act (“PCRA”) based on claims of
ineffective assistance of counsel. On June 4, 2013, Michael L.
Doyle, Esquire was appointed to represent Appellant at this
stage. On January 27, 2014, Appellant filed an Amended
Petition for Post Conviction Relief, alleging that his appellate
rights were not preserved as a result of ineffective counsel. An
evidentiary hearing was held on November 3, 2014 to determine
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the legitimacy of Appellant’s claims, and on November 17, 2014,
the Court granted Appellant's Petition and reinstated nunc pro
tunc his right to appeal.
Appellant filed a timely Notice of Appeal on December 15,
2014. The Court filed an Order instructing Appellant’s counsel to
file a Statement of Matters Complained of on Appeal within
twenty-one days on March 4, 2015. The Statement was filed on
March 25, 2015.
Trial Court Opinion, filed 7/14/15, at 1-2.
Appellant presents one issue on appeal:
Did the court err in giving an illegal sentence where three (3) of
the five (5) sentences [are] based upon a mandatory minimum
sentencing statute that is unconstitutional?
Appellant’s Brief at 6.
Appellant contends his sentence is unconstitutional, based upon
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013).2 Here, on January 10, 2012, Appellant received four mandatory
sentences of five to ten years’ incarceration pursuant to 42 Pa.C.S. § 9712
(“Sentences for offenses committed with firearms.”). See Trial Court
Opinion, filed 7/14/15, at 3.
In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),
this Court found Section 9712 unconstitutional, therefore rendering illegal a
2
The United States Supreme Court decided Alleyne on June 17, 2013,
holding that “[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, supra at 2155.
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sentence formulated thereunder. Id. at 811-12 (finding that Section 9712
violates the United States Supreme Court’s decision in Alleyne).
The trial court stated that Alleyne is applicable, and that the
Judgment of Sentence must be vacated and remanded for resentencing.
See Trial Court Opinion, filed 7/14/15, at 3-6, 8. We agree. Appellant’s
sentence is therefore illegal; accordingly, we vacate the Judgment of
Sentence and remand this case to the trial court for resentencing without
consideration of Section 9712.3
Appellant’s convictions for Robbery, Burglary, Criminal Conspiracy, and
Carrying a Firearm Without a License affirmed. Judgment of Sentence
vacated. Case remanded for resentencing only. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
3
The Commonwealth requests that we hold our decision in this appeal
“pending the results of similar cases presently before the Pennsylvania
Supreme Court[,]” including Commonwealth v. Wolfe, No. 68 MAP 2015,
and Commonwealth v. Barnes, No. 36 EAP 2015. Appellee’s Brief at 7,
10. We decline to do so in light of the binding case law regarding Section
9712.
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