J-S79015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD CHARLES EVANS
Appellant No. 3292 EDA 2015
Appeal from the Judgment of Sentence August 3, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014114-2009
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 02, 2016
Appellant, Richard Charles Evans, appeals nunc pro tunc from the
judgment of sentence entered in the Philadelphia County Court of Common
Pleas, following his bench trial convictions of one count each of possession of
a controlled substance with the intent to distribute (“PWID”), knowing or
intentional possession of a controlled substance, possession of drug
paraphernalia, and possession of an instrument of crime (“PIC”).1 We
vacate the judgment of sentence and remand for re-sentencing.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with various drug-related offenses for
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 907(a), respectively.
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possessing drugs and a firearm. Following a bench trial on June 21, 2012,
the court convicted Appellant of one count each of PWID, knowing or
intentional possession of a controlled substance, possession of drug
paraphernalia, and PIC. The court sentenced Appellant on August 3, 2012,
to an aggregate term of five (5) to ten (10) years’ imprisonment, plus five
(5) years’ probation, which included a mandatory minimum term pursuant to
42 Pa.C.S.A. § 9712.1 (requiring imposition of mandatory minimum
sentences for certain drug offenses committed with firearms).
On August 13, 2012, Appellant filed a timely post-sentence motion,
which the court denied on January 3, 2013. Appellant filed a pro se PCRA
petition on December 30, 2013. The PCRA court appointed counsel, who
filed an amended petition. On September 29, 2015, the PCRA court granted
Appellant’s petition and reinstated Appellant’s direct appeal rights nunc pro
tunc. Appellant filed a timely notice of appeal on October 29, 2015. On
November 6, 2015, the court ordered Appellant to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b); and Appellant
complied on December 3, 2015.2
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2
Appellant’s Rule 1925(b) statement appears to be untimely. Nevertheless,
Appellant challenges only the legality of his sentence, which the court
imposed pursuant to a mandatory minimum sentencing statute and
addressed in its opinion. See Commonwealth v. Edrington, 780 A.2d 721
(Pa.Super. 2001) (explaining challenge to application of mandatory
minimum sentence is non-waiveable challenge to legality of sentence which,
assuming proper jurisdiction, this Court can address sua sponte).
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Appellant raises one issue for our review:
IS APPELLANT ENTITLED TO A NEW SENTENCING
HEARING BECAUSE HIS SENTENCE IS ILLEGAL, HAVING
BEEN IMPOSED PURSUANT TO AN UNCONSTITUTIONAL
MANDATORY MINIMUM SENTENCING STATUTE?
(Appellant’s Brief at 2).
Appellant argues 42 Pa.C.S.A. § 9712.1 is unconstitutional pursuant to
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), and its Pennsylvania progeny. Appellant maintains his mandatory
minimum sentence under Section 9712.1 is illegal. Appellant concludes this
Court should vacate the judgment of sentence and remand for re-
sentencing. We agree.
In Alleyne, the United States Supreme Court held that any fact
increasing the mandatory minimum sentence for a crime is considered an
element of the crime to be submitted to the fact-finder and found beyond a
reasonable doubt. Alleyne, supra. This Court later addressed the
constitutionality of Section 9712.1, in Commonwealth v. Newman, 99
A.3d 86 (Pa.Super. 2014) (en banc). Relying on Alleyne, Newman held
that 42 Pa.C.S.A. § 9712.1 could no longer pass constitutional muster as it
“permits the trial court, as opposed to the jury, to increase a defendant’s
minimum sentence based upon a preponderance of the evidence that the
defendant was dealing drugs and possessed a firearm, or that a firearm was
in close proximity to the drugs.” Id. at 98. Newman further held (1) the
non-offending provisions of Section 9712.1 were not severable, and the
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statute was unconstitutional in its entirety; (2) a sentencing challenge
premised on Alleyne implicates the legality of the sentence and cannot be
waived. Id. at 90, 101.
Instantly, the trial court sentenced Appellant to a mandatory minimum
term of incarceration pursuant to Section 9712.1. Under Newman,
Appellant is entitled to a remand for re-sentencing without application of any
unlawful mandatory minimum sentences. Accordingly, we vacate the
judgment of sentence in its entirety and remand for re-sentencing without
imposition of mandatory minimum terms. See Commonwealth v.
Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747
A.2d 896 (1999) (holding sentencing error in multi-count case normally
requires appellate court to vacate entire judgment of sentence so trial court
can restructure its sentencing plan on remand).
Judgment of sentence vacated; case remanded for re-sentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2016
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