Com. v. Diaz, A. ( 2017 )

J. S15040/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALEXANDER DIAZ, : No. 2505 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, April 25, 2012,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000992-2011
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2017
Alexander Diaz appeals from the judgment of sentence of April 25,
2012, following reinstatement of his direct appeal rights nunc pro tunc.
We vacate the judgment of sentence and remand for resentencing.
The trial court summarized the history of this case as follows:
Appellant/Defendant was tried and convicted
for possession with intent to deliver [(“PWID”)]
heroin and related crimes, after the undercover
purchase of heroin on September 23, 2010 in
Chester, Delaware County, Commonwealth of
Pennsylvania.[Footnote 1]
[Footnote 1] Two prior undercover heroin
purchases occurred on September 17,
2010 and September 21, 2010 involving
the defendant’s co-defendant, Alexander
Santo.
Appellant, Alexander Diaz, appeals from the
judgment of sentence imposed on April 25, 2012,
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following his conviction for [PWID], Conspiracy to
delivery [] of heroin and possession of
paraphernalia.[Footnote 2]
[Footnote 2] On December 8, 2011 the
defendant was found guilty after a Jury
Trial on the merits. Sentencing
proceeded thereafter on April 25, 2012
together with a Post-Sentence Rights
colloquy. A counseled Motion to Modify
and Reduce Sentence was filed
thereafter on May 7, 2012 which was
denied by order of court dated June 1,
2012. No direct appeal was filed or
preserved.
On September 26, 2012 a Pro Se
PCRA Petition was filed averring,
inter alia, ineffectiveness for failure to
file or preserve the defendant’s direct
appeal rights.
After appointment of collateral
counsel the defendant was granted leave
and continuances to file multiple
amendments to defendant’s PCRA
Petition. There appearing [to be] no
dispute the Defendant’s rights on direct
appeal were not properly protected by
trial counsel and thus extinguished, this
court on July 28, 2014 granted the nunc
pro tunc reinstatement of the
Defendant’s right to direct appeal.
The Office of the Delaware County
Public Defender[,] consistent with such
time constraints [as] this court directed
via its July 28, 2014[] order reinstating
nunc pro tunc direct appellate rights[,]
lodged on August 29, 2014[] an appeal
notice from the Defendant’s sentencing
judgment.
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On Appeal, Appellant challenges his convictions
for lack of sufficient evidence. Appellant/Defendant
also attacks his sentence contending the Trial Court
impermissibly and unconstitutionally imposed a
mandatory minimum sentence in violation of
Alleyne v. United States, 133 S. Ct. 2151, 186
L. Ed. 2d 314 (2013).
Appellant proceeded to a two-day jury trial on
December 7-8, 2010. Appellant was found guilty of
the aforementioned charges. Subsequently, on
April 25, 2012, with the benefit of a presentence
investigation and report, this Court imposed the
following sentence. On the PWID heroin conviction,
this Court imposed a sentence of 48 months to
96 months imprisonment with a 10 year consecutive
probation for the criminal conspiracy conviction and
an additional 1 year probation consecutive to the
conspiracy conviction for the possession of
paraphernalia conviction. (Sentencing, 4/25/12,
pp. 54-62).
Trial court opinion, 6/28/16 at 1-2 (emphasis added and deleted).
On January 9, 2015, the trial court ordered appellant to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b), and appellant timely complied on January 28, 2015. On
June 28, 2016, the trial court filed a Rule 1925(a) opinion.1
Appellant has raised the following issue for this court’s review:
Whether the mandatory minimum sentence
imposed in this matter on the charge of
[PWID] is illegal and must be vacated since the
statutory provisions utilized have been ruled
unconstitutional[?]
1
The reasons for the nearly two-year delay between when appellant filed his
notice of appeal on August 29, 2014, and receipt of the record in this court
on July 1, 2016, are unclear.
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Appellant’s brief at 7 (capitalization deleted).2
Here, appellant was subject to a mandatory minimum sentence of
2-4 years’ imprisonment for PWID under 18 Pa.C.S.A. § 6317 (drug-free
school zones). (Trial court opinion, 6/28/16 at 5.) In Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court concluded that the
United States Supreme Court’s decision in Alleyne rendered Section 6317
unconstitutional in its entirety. See also Commonwealth v. Wolfe, 140
A.3d 651, 653 (Pa. 2016) (“The effect of Alleyne’s new rule was to
invalidate a range of Pennsylvania sentencing statutes predicating
mandatory minimum penalties upon non-elemental facts and requiring such
facts to be determined by a preponderance of the evidence at sentencing.”).
The Commonwealth argues that the trial court imposed a sentence of
4-8 years, twice the mandatory minimum. (Commonwealth’s brief at 6.)
Therefore, according to the Commonwealth, the 2-year mandatory did not
affect appellant’s sentence. (Id. at 7.) However, the trial court specifically
determined that Section 6317 applied. (Appellant’s brief at 14; trial court
opinion, 6/28/16 at 5.) See Commonwealth v. Barnes, A.3d ,
2016 WL 7449232 at *5 (Pa. 2016) (rejecting the Commonwealth’s
argument that the sentencing court was not without authority to enter the
appellant’s sentence because it possessed separate discretionary authority
2
Appellant’s sufficiency of the evidence claim has been abandoned on
appeal.
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under which he could have received the same sentence). We vacate
appellant’s judgment of sentence and remand to the trial court for
resentencing without application of 18 Pa.C.S.A. § 6317.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2017
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