Com. v. Canavin, D. ( 2015 )

J-S42017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DIANA CANAVIN
Appellant No. 1690 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009466-2012
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
JUDGMENT ORDER BY MUNDY, J.: FILED JULY 23, 2015
Appellant, Diana Canavin, appeals from the November 15, 2013
aggregate judgment of sentence of five to ten years’ imprisonment, followed
by three years’ probation, imposed after she was found guilty of one count
each of robbery, aggravated assault, criminal conspiracy, theft by unlawful
taking, and possession of an instrument of crime.1 After careful review, we
vacate and remand for resentencing.
Appellant challenges the five-year mandatory minimum sentence she
received under 42 Pa.C.S.A. § 9713. Appellant’s Brief at 5, 7-8. The trial
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2702(a)(1), 903(c), 3921(a), and 907(a),
respectively.
J-S42017-15
court acknowledges it sentenced Appellant to the mandatory minimum
pursuant Section 9713. Trial Court Opinion, 11/14/14, at 9.
In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),
this Court, applying Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc), concluded that Section 9713 is facially unconstitutional.
Id. at 811-812. Recently, our Supreme Court agreed with Newman and
Valentine’s conclusions. See Commonwealth v. Hopkins, --- A.3d ---,
2015 WL ------- (Pa. 2015) (slip op. at 2, 19, 22, 23) (concluding that 18
Pa.C.S.A. § 6317 is facially unconstitutional because its various subsections
could not be severed from each other under 1 Pa.C.S.A. § 1925). As Section
9713 is unconstitutional on its face, there is no set of circumstances in which
the statute can be constitutionally applied. United States v. Salerno, 481
U.S. 739, 745 (1987); accord Commonwealth v. McKown, 79 A.3d 678,
687 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014). Therefore,
because the trial court applied a facially unconstitutional statute in
sentencing Appellant, the resultant sentence is illegal.2 As our decision
upsets the trial court’s sentencing scheme, we must vacate the entire
judgment of sentence and remand for resentencing. See generally
Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013).
____________________________________________
2
In light of our disposition, Appellant’s remaining challenge to the
mandatory minimum sentence is moot.
-2-
J-S42017-15
Based on the foregoing, we conclude the trial court imposed an illegal
sentence when it applied Section 9713 to Appellant. Accordingly, the trial
court’s November 15, 2013 judgment of sentence is vacated, and the case is
remanded for resentencing, without consideration of the mandatory
minimum provisions, consistent with this judgment order.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2015
-3-