Com. v. Stewart, R.

J-S21044-14
J-S21046-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSIU STEWART
Appellant No. 2534 EDA 2013
Appeal from the Judgment of Sentence July 9, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006476-2012
-------------------------------------------------------------------------------------
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSIU STEWART
Appellant No. 2536 EDA 2013
Appeal from the Judgment of Sentence July 9, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006483-2012
BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 07, 2014
J-S21044-14
J-S21046-14
Rassiu Stewart appeals from two judgments of sentence imposed on
July 9, 2013, in the Montgomery County Court of Common Pleas. 1 The trial
separate cases,
to robbery2 and related charges, for his participation in two armed robberies
that occurred on August 13, 2012. On appeal, Stewart challenges the
legality of his sentences. For the reasons set forth below, we vacate the
judgments of sentence, and remand for resentencing.
On March 26, 2013, Stewart entered open guilty pleas in the following
two cases: (1) at Docket No. 6476-2012, he pled guilty to robbery, persons
not to possess firearms, and firearms not to be carried without a license;3
and (2) at Docket No. 6483-2012, he pled guilty to robbery, persons not to
possess firearms, firearms not to be carried without a license, and
possession with intent to deliver controlled substances (PWID).4 Sentencing
was originally scheduled for June 21, 2013, however, that hearing was
____________________________________________
1
Because the appeals at 2534 EDA 2013 and 2536 EDA 2013 both involve
related questions of law and are part of the same sentencing scheme, we
have consolidated them for purposes of disposition.
2
18 Pa.C.S. § 3701.
3
18 Pa.C.S. §§ 3701(a)(1)(iii), 6105, and 6106, respectively.
4
18 Pa.C.S. §§ 3701(a)(1)(iii), 6105, and 6106, and 35 P.S. 780-
113(a)(30), respectively.
-2-
J-S21044-14
J-S21046-14
continued so that the parties could determine whether Stewart had a prior
conviction for robbery, which would constitute a first strike for sentencing
purposes. See 42 Pa.C.S. § 9714(a)(1).5
At the July 2, 2013, sentencing hearing, the Commonwealth provided
a felony of the first degree. Defense counsel agreed the prior conviction
counted as a first strike, and that both of the robbery convictions before the
court would count as second strikes pursuant to Section 9714. See N.T.,
7/9/2013, at 9, 11. The trial court then proceeded to impose the following
sentences. At Docket No. 6476-2012, the trial court sentenced Stewart to a
mandatory min
concurrent terms of four to 10 years for persons not to possess firearms and
two to 10 years for firearms not to be carried without a license. At Docket
No. 6483-2012, the court imposed the same sentence for the count of
robbery and the violations of the Uniform Firearms Act. However, the trial
court also imposed a consecutive sentence of a mandatory minimum five to
____________________________________________
5
ti
the statute. See 42 Pa.C.S. § 9714(g).
-3-
J-S21044-14
J-S21046-14
6
The
trial court directed the sentences at Docket No. 6483-2012 would run
concurrently with the sentences at Docket No. 6476-2012. Therefore, the
incarceration. Stewart filed post sentence motions at both docket numbers
____________________________________________
6
The statute provides, in pertinent part:
(a) Mandatory sentence.--Any person who is convicted of a
violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
233, No. 64),1 known as The Controlled Substance, Drug, Device
and Cosmetic Act, when at the time of the offense the person or
firearm, whether visible, concealed about the person or the
or in close proximity to the controlled substance, shall likewise
be sentenced to a minimum sentence of at least five years of
total confinement.
****
(c) Proof at sentencing.--Provisions of this section shall not be
an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1(a), (c). As we will discuss infra, an en banc panel of
this Court has held that this sentencing provision is unconstitutional.
Commonwealth v. Newman, 2014 Pa. Super. 178 (Pa. Super. 2014) (en
banc).
-4-
J-S21044-14
J-S21046-14
charge of PWID at Docket No. 6483-2013. The court denied the motions on
August 8, 2013, and these timely appeals followed.7
In both appeals, Stewart challenges the legality of the two to 10 year
sentence imposed by the trial court for his convictions of firearms not to be
carried without a license. He argues that, because the charges were graded
as felonies of the third degree, the maximum sentence the trial court could
No. 6483-2012, Stewart contends the five year mandatory minimum
sentence the trial court imposed for his conviction of PWID was illegal in
light of the United States Alleyne v.
United States, 133 S. Ct. 2151 (2013).
Preliminarily, we note that neither of these claims was raised in
-sentence motions or his concise statements.8 However, since
____________________________________________
7
On September 24, 2013, the trial court ordered Stewart to file, in each
case, a concise statement of errors complained of on appeal pursuant to
his concise statements on October 7, 2013.
The appeal of the judgment of sentence at trial Docket No. 6476-2012 is
docketed in this Court at 2534 EDA 2013. The appeal of the judgment of
sentence at trial Docket No. 6483-2012 is docketed in this Court at 2536
EDA 2013.
8
The only issues Stewart raised in his post sentence motions and concise
statements challenged the discretionary aspects of his sentence. Counsel,
however, has abandoned these claims on appeal. Indeed, in the appellate
(Footnote Continued Next Page)
-5-
J-S21044-14
J-S21046-14
both issues implicate the legality of his sentence,9 they are non-waivable
claims, and can be raised for the first time on direct appeal. 42 Pa.C.S. §
9781(a); Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super.
2010).
Our review of a challenge to the legality of a sentence is well-
established:
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Orie Melvin, 2014 Pa. Super. 181, *40 (Pa. Super.
2014).
_______________________
(Footnote Continued)
brief at 2534 EDA 2013 (trial court Docket No. 6476-2012), counsel states
2013, at 18. Counsel then proceeds to explain why the issue is frivolous.
See id. at 18-24. While such an argument is proper in a brief filed pursuant
to Anders v. California, 386 U.S. 738 (1967), and accompanied by a
petition to withdraw as counsel, it is not proper
However, because we are ultimately vacating the judgments of sentence in
these appeals, and remanding for a new sentencing hearing, we decline to
remand for a proper brief.
9
See Commonwealth v. Bradley,
illegal sentence is one that exceeds t
Newman, supra
Alleyne [] implicates the legality of the sentence and cannot be waived on
en banc).
-6-
J-S21044-14
J-S21046-14
tion for each of his convictions of firearms not to
be carried without a license. The Uniform Firearms Act specifically provides
that a person who carries a firearm without a valid license commits a felony
of the third degree.10 18 Pa.C.S. § 6106(a). The statutory maximum
6106, are illegal, and must be vacated.
Although the Commonwealth concedes that the sentences are illegal, it
argues we need not remand for resentencing, but may simply correct the
charges, because it
EDA 2013, at 7.
____________________________________________
10
ch appeal properly listed
the charges of firearms not to be carried without a license as third degree
felonies. See Docket No. 6476-2012, Criminal Information, 10/10/2012, at
Count 6; Docket No. 6483-2012, Criminal Information, 10/10/2012, at
Count 6.
-7-
J-S21044-14
J-S21046-14
e must be corrected, we are
empowered to either amend the sentence directly or to remand the case to
Commonwealth v. Benchoff, 700 A.2d
1289, 1294 (Pa. Super. 1997). See Commonwealth v. Vasquez, 476
A.2d 466, 469 (Pa. Super. 1994) (declining to remand case for resentencing
when improper sentence ran concurrently to proper sentence; appellate
this [C]ourt may upset the sentencing scheme envisioned by the trial court,
Commonwealth v. Dobbs, 682 A.2d
388, 392 (1996). Here, although the charges stem from two separate cases
and run concurrently to other lengthier sentences, they are part of one
sentencing scheme envisioned by the trial court. Therefore, we believe a
remand for resentencing is appropriate and warranted.11
Next, at Docket No. 6483-2012 (2536 EDA 2013), Stewart contends
the mandatory minimum five to 10 year sentence imposed for his conviction
of PWID is
Alleyne, supra. We agree.
____________________________________________
11
Moreover, as we will discuss infra, we are also compelled to vacate the
consecutive sentence imposed by the trial court for the charge of PWID at
Docket No. 6483-2012. Therefore, a remand will allow the court to fashion a
new sentencing scheme.
-8-
J-S21044-14
J-S21046-14
The PWID sentence was imposed pursuant to 42 Pa.C.S. § 9712.1,
which, in relevant part, mandates a trial court to impose a five-year
9712.1(a). The most troublesome part of the sentencing statute is
subsection (c) which permits the trial court to determine the applicability of
the provision during the sentencing hearing, pursuant to a preponderance of
the evidence standard. See id. at § 9712.1(c).
In Alleyne
submitted to
the jury and found beyond a reasonable doubt Alleyne, 133 S. Ct. at
2155 (emphasis supplied). The Court expanded upon its holding in
Apprendi,12 which applied only to facts that increased the statutory
maximum for a crime, to include facts which increase the minimum
sentence. Id. Accordingly, under the holding of Alleyne
under Section 9712.1, must be submitted to a jury.
____________________________________________
12
Apprendi v. New Jersey, 530 U.S. 466 (2000).
-9-
J-S21044-14
J-S21046-14
This Court, sitting en banc in Commonwealth v. Watley, 81 A.3d
108, (Pa. Super. 2013), appeal denied, 95 A.3d 277 (Pa. 2014), recognized
that:
The Alleyne
minimum sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they permit a judge
to automatically increase a defend
preponderance of the evidence standard.
Id. at 117. However, in that case, the en banc panel concluded the
Watley Court held that the jury, by virtue of its guilty verdicts on the
as to whether Appellant possessed the handguns found in the car; the
reason it did not do so in conjunction with the PWID count is that the
prevailing law a Watley, 81
A.3d at 121. The Court explained:
[T]he uncontroverted evidence in the instant case established
that one firearm was located in the same glove compartment as
the drugs and another handgun was located on the passenger-
side floor in close proximity to the drugs, and the jury
determined beyond a reasonable doubt that Appellant possessed
those firearms. Therefore, the facts necessary to establish
application of the mandatory minimum sentence not only were
essentially undisputed and overwhelming, they were determined
by the jury.
Id. at 121.
Here, the Commonwealth contends that Watley is controlling, and
that the Alleyne
- 10 -
J-S21044-14
J-S21046-14
mandatory-triggering fact
Brief, 2536 EDA 2013, at 12. Further, it asserts that if this Court should
determine that a remand for resentencing is required, we should permit a
-finder to determine whether the mandatory minimum ap Id.
Both of these arguments, however, were recently rejected by another en
banc panel of this Court in Commonwealth v. Newman, 2014 Pa. Super.
178 (Pa. Super. 2014).
In Newman, this Court held that Alleyne
9712.1 unconstitu Id. at *15. Although the Newman Court
acknowledged that an Alleyne issue may be subject to a harmless error
analysis, it found the error was not harmless in that case. The Court opined:
We cannot find that the error here was harmless, because the
necessarily overwhelming. As previously noted, the drug
contraband was found in a bathroom. The firearm was found
under a mattress in a bedroom across the hallway, and the
actual distance between the contraband and the firearm was six
to eight feet.
Id.
in Section 9712.1 was subject to much debate among Pennsylvania courts
uld undoubtedly find under
Id. at *13.
The facts in the case sub judice fall somewhere between those
presented in Watley and those in Newman. Here, Stewart entered a guilty
plea. However, absent from his plea was an explicit acknowledgment that
- 11 -
J-S21044-14
J-S21046-14
committed the crime of PWID. 42 Pa.C.S. § 9712.1(a). The Commonwealth
d the
firearm while being chased by police. When that chase ended, he was found
to be in possession of forty-
2536 EDA 2013, at 12. Therefore, it asserts that Stewart admitted the
- . Id.
However, the facts presented by the Commonwealth during the guilty
plea colloquy were as follows:
day, [you] walked into A Plus Store, and the cashier there was
Harris Beg was about a foot or two
behind Mr. Azam. They were both within a few feet of you when
put it on the counter and demanded money. And they told you
u left. Correct?
[Stewart:] Yes, sir.
[Prosecutor:] You also understand that by pleading guilty today,
you are admitting that you had in your possession heroin, plastic
baggies, and wax paper, and you possessed this with the intent
to deliver it?
[Stewart:] Yes.
N.T., 3/26/2013, at 21.
would certainly permit a fact-finder to reasonably infer that Stewart
possessed a firearm while committing PWID, we do not agree that the facts
he admitted during the guilty plea colloquy mandate such a conclusion.
- 12 -
J-S21044-14
J-S21046-14
sentence were not determined by a jury beyond a reasonable doubt, nor
were they explicitly admitted by him, we find the trial court erred in applying
Moreover, we note the Newman Court also rejected the
may submit this question to a fact-finder to determine, beyond a reasonable
doubt, whether the mandatory minimum applies. Indeed the Court opined:
sentencing jury would require this court to manufacture whole
cloth a replacement enforcement mechanism for Section 9712.1;
in other words, the Commonwealth is asking us to legislate. We
recognize that in the prosecution of capital cases in
Pennsylvania, there is a similar, bifurcated process where the
jury first determines guilt in the trial proceeding (the guilt
phase) and then weighs aggravating and mitigating factors in
the sentencing proceeding (the penalty phase). However, this
mechanism was created by the General Assembly and is
enshrined in our statutes at 42 Pa.C.S.A. § 9711. We find that it
is manifestly the province of the General Assembly to determine
what new procedures must be created in order to impose
mandatory minimum sentences in Pennsylvania following
Alleyne. We cannot do so.
Id. at *14. Accordingly, upon remand the trial court is directed to sentence
Stewart without application of the mandatory minimum provision in Section
9712.1.
- 13 -
J-S21044-14
J-S21046-14
Because we conclude the trial court imposed illegal sentences at
Docket Nos. 6476-2012 and 6483-2012, we vacate the judgments of
sentence, and remand for a new sentencing hearing.13
-2012 and
6483-2012 vacated. Cases remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
____________________________________________
13
10 to 20 years for his robbery convictions, imposed pursuant to 42 Pa.C.S. §
9714(a)(1), did not violate Alleyne. This Court has explained that:
Prior convictions are the remaining exception to Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and Alleyne , insofar as a fact-finder is not required to
determine disputed convictions beyond a reasonable doubt to
comport with the Sixth Amendment jury trial right. See
Almendarez Torres v. United States, 523 U.S. 224, 118
S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014).
Accordingly, upon remand, the trial court may re-impose the Section 9714
convictions.
- 14 -