Com. v. Spangler, A. ( 2015 )

J-S63027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE LAMONT SPANGLER
Appellant No. 277 MDA 2014
Appeal from the Judgment of Sentence March 15, 2011
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002280-2009
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 29, 2015
Appellant, Andre Lamont Spangler, appeals from the judgment of
sentence entered March 15, 2011. After careful review, we vacate the
judgment of sentence and remand for resentencing.
Spangler pled guilty to various drug related offenses based upon
allegations of multiple sales of cocaine. The trial court initially sentenced
Spangler to a term of incarceration of 10 to 20 years. After considering
Spangler’s post-sentence motions, however, the trial court resentenced
Spangler to an aggregate term of imprisonment of 7 to 14 years.
Spangler subsequently filed a petition pursuant to the Post Conviction
Relief Act (“PCRA”), through which his direct appeal rights were reinstated
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S63027-14
nunc pro tunc by PCRA court order dated January 10, 2014. This timely
appeal followed.
On appeal, Spangler raises the following issues for our review:
1. Should Mr. Spangler be resentenced due to sentencing
entrapment and/or sentencing manipulation?
a. Did law enforcement engage in sentencing entrapment
and/or sentencing manipulation in the course of its
investigation?
b. Is Appellant entitled to a new sentence due to
sentencing entrapment and/or sentencing
manipulation?
2. Is 18 Pa.C.S.A. § 7508 unconstitutionally vague?
3. Does 18 Pa.C.S.A. § 7508 violate the equal protection
clauses?
4. Is 18 Pa.C.S.A. § 7508 unconstitutional as applied in this case
since it constitutes cruel and unusual punishment?
Appellant’s Brief, at 7.
We need not address any of the issues raised by Spangler as the
parties now recognize that while the instant appeal was pending this Court,
sitting en banc, held that section 7508 is facially invalid pursuant to the
Supreme Court of the United States’ decision in Alleyne v. United States,
___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).
Furthermore, this issue cannot be waived. See Commonwealth v.
Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (holding that
violations of Alleyne could not be waived). The Commonwealth concedes
that Spangler is entitled to re-sentencing. We therefore vacate Spangler’s
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judgment of sentence and remand for re-sentencing pursuant to the dictates
of Newman and Alleyne.
Judgment of sentence vacated. Case remanded for re-sentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2015
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