Com. v. Ansel, J. ( 2015 )

J-S47025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON ANSEL
Appellant No. 1 MDA 2015
Appeal from the Judgment of Sentence June 3, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000612-2012
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 28, 2015
Jason Ansel appeals nunc pro tunc from the judgment of sentence
imposed on June 3, 2013, in the Court of Common Pleas of Berks County.
Ansel entered a negotiated plea to one count of possession with the intent to
deliver (PWID) cocaine, and one count of PWID marijuana.1 The trial judge
sentenced him to serve an aggregate term of 5 to 10 years’ incarceration.
Ansel contends his sentence is illegal under Alleyne v. United States, 133
S.Ct. 2151, 2155 (2013) (holding that an aggravating fact that increases a
mandatory minimum sentence must be submitted to the jury for a finding
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
J-S47025-15
beyond a reasonable doubt).2 Based upon the following, we vacate the
judgment of sentence and remand for resentencing.
As stated, Ansel entered a negotiated guilty plea to two counts of
PWID (cocaine and marijuana). During the entry of the plea, Ansel admitted
to the weight of the controlled substances recovered by police. In
sentencing Ansel, the trial court applied the mandatory minimum sentencing
provisions of 18 Pa.C.S. § 7508(a)(3)(ii). Specifically, the trial court
sentenced Ansel to a mandatory minimum term of 5 to 10 years’
imprisonment on the count for PWID cocaine, and a concurrent term of 9
months to 5 years’ imprisonment on the count for PWID marijuana.
Ansel did not file a post-sentence motion or direct appeal. However,
he filed a petition pursuant to the Post Conviction Relief Act (PCRA), 3 and
the PCRA court granted the petition and reinstated Ansel’s appeal rights
nunc pro tunc. This appeal followed.
On January 29, 2015, Ansel filed a Pa.R.A.P. 1925(b) statement,
raising the issue of an illegal sentence based upon Alleyne. The Honorable
Stephen B. Lieberman, in a supplemental Rule 1925(a) opinion, determined
this Court’s decision in Commonwealth v. Cardwell, 105 A.3d 748 (Pa.
Super. 2014) (holding trial court erred by imposing mandatory minimum
____________________________________________
2
Alleyne was decided on June 17, 2013, two weeks after Ansel was
sentenced by the trial court.
3
42 Pa.C.S. §§ 9541–9546.
-2-
J-S47025-15
sentence under Section 7508 even where parties stipulated to weight of
drugs), “appears to be directly on point,” and “request[ed] that [Ansel’s]
judgment of sentence be vacated and that the case be remanded to [the
trial] court for resentencing.” Trial Court Supplemental Opinion, 2/20/2015.
The Commonwealth opposes remand for resentencing.
In Cardwell, this Court, applying Alleyne, held 18 Pa.C.S. § 7508 is
unconstitutional as a whole and its subsections non-severable.4 See also
Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc). In
light of Cardwell, we conclude the sentence imposed on Ansel’s PWID
cocaine conviction cannot stand, and we agree with Judge Lieberman that
the judgment of sentence should be vacated and the case remanded for
resentencing. Accordingly, we vacate the judgment of sentence in its
entirety and remand for resentencing, without application of the mandatory
minimum prescribed in 18 Pa.C.S. § 7508. See Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283-1284 (Pa. 1986) (if appellate court
alters overall sentencing scheme, then remand for re-sentencing is proper);
____________________________________________
4
The Commonwealth maintains that the unconstitutional portion of Section
7508 is severable from the remainder of the statute. However, we note that
the Section 7508 “proof at sentencing” provision, which permits the trial
court to find the necessary elements by a preponderance of the evidence,
contains almost identical language as that found in another mandatory
minimum statute, 18 Pa.C.S. § 6317, which the Pennsylvania Supreme Court
has held to be unconstitutional in its entirety and non-severable.
Commonwealth v. Hopkins, ___ A.3d ___ [2015 Pa. LEXIS 1282] (Pa.
June 15, 2015).
-3-
J-S47025-15
Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (if
trial court errs in its sentence on one count in multi-count case, then all
sentences for all counts will be vacated and matter remanded for court to
restructure its entire sentencing scheme).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
-4-