Com. v. Kitchell, C. ( 2017 )

J-S01037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
:
v. :
:
CLARK KITCHELL, :
:
Appellant : No. 2015 MDA 2015
Appeal from the Judgment of Sentence January 9, 2013
in the Court of Common Pleas of Luzerne County,
Criminal Division, No(s): CP-40-CR-0001292-2011
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2017
Clark Kitchell (“Kitchell”) appeals, nunc pro tunc, from the judgment of
sentence imposed following his conviction of involuntary deviate sexual
intercourse with a child under the age of 13. See 18 Pa.C.S.A. § 3123(b).
We vacate the judgment of sentence and remand for resentencing.
On October 15, 2012, a jury found Kitchell guilty of the above-
mentioned crime for acts committed against Kitchell’s six-year-old
stepdaughter. The trial court sentenced Kitchell to serve ten to twenty years
in prison. Relevantly, the trial court imposed the mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9718. Kitchell filed a timely appeal,
challenging the competency of the victim. This Court affirmed the judgment
of sentence, and the Pennsylvania Supreme Court denied allowance of
appeal. See Commonwealth v. Kitchell, 100 A.3d 299 (Pa. Super. 2014)
(unpublished memorandum), appeal denied, 96 A.3d 1026 (Pa. 2014).
J-S01037-17
On May 8, 2015, Kitchell filed a timely Petition pursuant to the Post
Conviction Relief Act (“PCRA”),1 arguing that his appellate counsel was
ineffective for failing to raise a claim that his sentence was illegal regarding
the application of the mandatory minimum sentence in light of Alleyne v.
United States, 133 S. Ct. 2151 (2013), which was decided while Kitchell’s
direct appeal was pending. Based upon an agreement between Kitchell and
the Commonwealth, the PCRA court granted the Petition and reinstated
Kitchell’s direct appeal rights as to his judgment of sentence.2 Thereafter,
Kitchell filed a Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
On appeal, Kitchell raises the following question for our review:
Whether the trial court erred in imposing an illegal sentence in
[Kitchell’s] case when it imposed the mandatory minimum
[sentence,] despite the holding in [Alleyne], which had been
decided during his direct appeal period, and held that the
mandatory minimum was unconstitutional[?]
Brief for Appellant at 6 (capitalization omitted).
“Issues relating to the legality of a sentence are questions of law….
Our standard of review over such questions is de novo and our scope of
review is plenary.” Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa.
Super. 2015) (citation omitted).
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
See Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa. Super. 2015)
(noting that Alleyne may be applied to cases pending on collateral review
where the defendant’s judgment of sentence was not final when Alleyne
was decided).
-2-
J-S01037-17
Kitchell argues that the trial court’s imposition of the mandatory
minimum sentence under section 9718 violated Alleyne and
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Brief for Appellant at
10-13. As a result, Kitchell argues that his sentence is illegal, and he is
entitled to resentencing. Id. at 13. The Commonwealth agrees with
Kitchell’s argument, and concedes that the case must be remanded for
resentencing. See Commonwealth’s Letter, 11/29/16.
In Alleyne, the Supreme Court held that any fact that increases the
sentence for a given crime must be submitted to the jury and found beyond
a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Supreme Court
reasoned that a Sixth Amendment violation occurs where these sentence-
determinative facts are not submitted to a jury. Id. at 2156. In Wolfe,
the Supreme Court, relying on Alleyne, held that 42 Pa.C.S.A § 9718 “is
irremediably unconstitutional on its face, non-severable, and void.” Wolfe,
140 A.3d at 633.
Thus, pursuant to the holdings in Alleyne and Wolfe, we conclude
that the mandatory minimum sentence imposed upon Kitchell under 42
Pa.C.S.A. § 9718(a) is illegal. Accordingly, we vacate Kitchell’s judgment of
sentence and remand this case to the trial court for resentencing, without
reference to the mandatory minimum sentencing statute.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
-3-
J-S01037-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
-4-