Com. v. Jones, T. ( 2019 )

J-S84019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL JONES :
:
Appellant : No. 2581 EDA 2017
Appeal from the Judgment of Sentence August 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014589-2012
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 22, 2019
Terrell Jones appeals nunc pro tunc from the judgment of sentence
imposed on August 29, 2013, in the Court of Common Pleas of Philadelphia
County. Jones seeks relief from the judgment of sentence to serve an
aggregate term of six and one-half to 13 years’ imprisonment, followed by
four years of probation, after he entered an open plea to robbery – threaten
serious bodily injury, conspiracy, burglary, and carrying a firearm without a
license.1 Jones challenges both the legality and discretionary aspects of his
sentence. Based upon the following, we vacate the judgment of sentence and
remand for resentencing.
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1 18 Pa.C.S. §§ 3701(a)(1)(ii), 3502(c)(1), 903(c), and 6101(a)(1),
respectively.
J-S84019-18
The convictions in this case stem from Jones’s robbery of the victim in
her home, at gunpoint, with a co-conspirator. The procedural background of
this case has been summarized by the trial court, as follows:
On November 7, 2012, Terrell Jones was arrested for
numerous charges including Robbery - Threaten Immediate
Serious Injury, Burglary, Conspiracy to Commit Robbery, and
VUFA- Firearm Not to be Carried Without a License. On December
11, 2012, Mr. Jones appeared for a preliminary hearing before the
Honorable Charles Hayden. Mr. Jones was held for court on the
charges.
On July 2, 2013, Mr. Jones entered an open guilty plea to
the charges of conspiracy to commit robbery, robbery that
threatened immediate serious injury, burglary, and carrying a
firearm without a license before the Honorable Sean F. Kennedy.
On August 28, 2013, the Honorable Sean F. Kennedy sentenced
Mr. Jones to be confined for a period of five to ten years for the
robbery offense; one year and six months to three years
confinement for the burglary consecutive to the robbery; one year
and six months to three years confinement for the conspiracy
concurrent with the burglary; and four years probation
consecutive to the confinement for the carrying a firearm without
a license. On September 9, 2013, Mr. Jones filed a Motion for
Reconsideration of Sentence. Following a hearing, the Motion for
Reconsideration of Sentence was denied on October 3, 2013.
On June 30, 2014, Mr. Jones filed a timely pro se PCRA
petition. On July 20, 2017, following a hearing, the Defendant’s
appellate rights were restored nunc pro tunc. On August 11, 2017,
[Jones] filed a timely Notice of Appeal to the Pennsylvania
Superior Court.
Trial Court Opinion, 2/27/2018, at 4 (record citations omitted).2
We begin with Jones’s challenge to the legality of the sentence. As the
Commonwealth concedes, the mandatory minimum sentencing provision for
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2We add that Jones timely complied with the order of the trial court to file a
Pa.R.A.P. 1925(b) concise statement.
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offenses committed with firearms, 42 Pa.C.S. § 9712, which was applied to
Jones’s robbery conviction, has been declared unconstitutional and illegal in
light of Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (holding that
facts that increase mandatory minimum sentences must be submitted to the
jury and must be found beyond a reasonable doubt). In Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014), this Court held Section 9712
unconstitutional in light of Alleyne. Therefore, the mandatory minimum
sentence imposed on Jones’s robbery conviction is illegal.
Both the Commonwealth and the trial court take the position Jones is
entitled to be resentenced on his robbery conviction only. However, as
vacating Jones’s sentence for robbery may upset the overall sentencing
scheme as to Jones’s other convictions, we conclude it is proper for this Court
to vacate the sentence in its entirety. See Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986) (stating generally if appellate
court disturbs overall sentencing scheme, then remand for resentencing is
proper). Accordingly, we vacate the judgment of sentence and remand for
resentencing.3
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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3 In light of our disposition, we decline to address Jones’s claim regarding the
discretionary aspects of his sentence.
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J-S84019-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
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