Com. v. McMichael, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES MCMICHAEL
Appellant No. 3197 EDA 2014
Appeal from the Judgment of Sentence August 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005966-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 12, 2016
Appellant, Charles McMichael, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for robbery, conspiracy, and possessing instruments of
crime (“PIC”).1 On March 25, 2013, codefendant Marquis Jackson’s brother
and the two victims were in the Jackson family home. Appellant and
codefendant entered the house, and Appellant pointed a firearm at the
victims while ordering them to empty their pockets. On May 13, 2014, a
jury convicted Appellant of two (2) counts of robbery and one (1) count each
of conspiracy and PIC. On August 6, 2014, Appellant filed a motion to bar
application of a mandatory minimum sentence, which the court granted in
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 907(a), respectively.
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part and denied in part. The court sentenced Appellant on August 11, 2014,
to concurrent terms of five-and-a-half (5½) to twelve (12) years’
incarceration for the robbery and conspiracy convictions, pursuant to the
mandatory minimum sentencing statute at 42 Pa.C.S.A. § 9712 (sentences
for offenses committed with firearms). The court imposed a concurrent term
of two-and-a-half (2½) to five (5) years’ incarceration for PIC. Appellant
timely filed a post-sentence motion on August 20, 2014, which the court
denied on November 4, 2014. Appellant filed a timely notice of appeal on
November 12, 2014, and a voluntary statement per Pa.R.A.P. 1925(b).
Section 9712 states its statutory provisions shall not be an element of
the crime, and its applicability shall be determined at sentencing by a
preponderance of the evidence. In Alleyne v. United States, ___ U.S.
___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the United States Supreme
Court expressly 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. See also
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc)
(holding 42 Pa.C.S.A. § 9712.1 can no longer pass constitutional muster as
it permits court to increase defendant’s minimum sentence based upon
preponderance of evidence). This Court extended the logic of Alleyne and
Newman to Section 9712, in Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super. 2014), holding that statute is likewise unconstitutional insofar as
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it permits increase of a defendant’s sentence based on the preponderance of
the evidence standard; the court could not cure the unconstitutionality of the
statute with a verdict sheet containing specific jury interrogatories. Id. In
so doing, the court would improperly create a new sentencing procedure, as
the statute is not severable and is unconstitutional in its entirety. Id.
Instantly, the court imposed mandatory minimum sentences for each
of Appellant’s robbery and conspiracy convictions, pursuant to 42 Pa.C.S.A.
§ 9712. The sentences were unlawful, despite the jury’s finding beyond a
reasonable doubt that Appellant possessed a firearm during the robberies.
See id. Accordingly, we affirm Appellant’s convictions, but vacate the
judgment of sentence in its entirety and remand for resentencing on all
convictions, without imposition of a mandatory minimum term. 2 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 requires that all sentences be vacated so court can
restructure its whole sentencing scheme).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
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2
We decline the Commonwealth’s invitation to hold our decision on this
appeal pending the resolution of Alleyne challenges presently under review
by the Pennsylvania Supreme Court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
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