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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE LAMAR JACKSON
Appellant No. 921 EDA 2016
Appeal from the Judgment of Sentence October 26, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007006-2012
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
JUDGMENT ORDER BY PANELLA, J. FILED NOVEMBER 08, 2017
Appellant, Tyree Jackson was charged with, among others, attempted
murder, aggravated assault, robbery, burglary, conspiracy, and possession
of an instrument of crime, based upon allegations that he and a co-
defendant, Tyrik Lark,1 robbed and shot Luther Wilkinson inside his own
home. A jury found Jackson guilty only of aggravated assault, robbery,
burglary, and the possessory crimes. In this appeal, Jackson argues that the
mandatory minimum sentence imposed by the court was illegal. After careful
review, we affirm.
____________________________________________
1 Lark’s appeal is docketed at 3039 EDA 2015.
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As Jackson’s two issues both challenge the court’s imposition of a
mandatory minimum sentence, we need not set forth a detailed summary of
trial testimony. Instead, we will focus on the sentence imposed.
At the sentencing hearing, the court found Jackson had a previous
conviction for attempted murder when he was 18 years old. Thus, the court
concluded that this was Jackson’s “second strike”, and imposed a mandatory
minimum sentence of 10 years of imprisonment pursuant to 42 Pa.C.S.A. §
9714.
On appeal, Jackson raises two distinct challenges to the imposition of
the mandatory sentence. First, he contends the court’s imposition of a
mandatory minimum sentence based upon its own fact finding, and not the
jury’s, violated the dictates of Alleyne v. United States, 133 S.Ct. 2151
(2013) (holding judicial fact finding that leads to the imposition of a
mandatory minimum sentence is unconstitutional).
Jackson concedes his arguments are contrary to precedent that
controls our decision. See Appellant’s Brief, at 13; see also
Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016). However, he
asserts that his is “a good faith argument for a change in existing law.” Id.
He notes that the Supreme Court of Pennsylvania granted the petition for
allowance of appeal in Bragg to review the issue of the constitutionality of §
9714. See id., at 13-14. Specifically, the Supreme Court defined the issue
before it as: “Should the mandatory minimum sentence imposed by the trial
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court under 42 Pa.C.S.A. § 9714 be vacated, and this matter remanded for a
new sentencing hearing, due to the fact that § 9714 is unconstitutional as
currently drafted?” Bragg, 143 A.3d 890 (Pa. 2016).
However, during the pendency of this appeal, our Supreme Court
summarily affirmed this Court’s decision in Bragg. See --- A.3d ---, 2017
WL 3596177 (Pa. 2017) (per curiam order). While we appreciate Jackson’s
good faith and transparent advocacy for a change in existing law, we are
bound by controlling precedent. Specifically, this Court in Bragg recognized
that the Supreme Court of the United States has held judicial fact finding
regarding the existence of prior convictions is not prohibited. See 133 A.3d
332-333.
As this Court has held that § 9714 is not unconstitutional, neither of
Jackson’s issues on appeal have merit. We therefore affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2017
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