Com. v. Negron-Pizarro, H.

J-S07009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY E. NEGRON-PIZARRO,
Appellant No. 1001 MDA 2014
Appeal from the Judgment of Sentence Entered January 30, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004768-2011
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 24, 2015
Appellant, Harry Negron-Pizzaro, appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 8-20 years’ incarceration,
imposed following his guilty plea to charges of delivery and possession with
intent to deliver (PWID) heroin. Appellant argues that his sentence is illegal
under Alleyne v. United States, 133 S. Ct. 2151 (2013). After careful
review, we vacate Appellant’s sentence and remand for resentencing.
On January 30, 2013, following Appellant’s open guilty plea to four
counts of delivery of heroin, and one count of PWID (heroin), 1 the trial court
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1
The facts supporting these charges are not necessary to the disposition of
the instant appeal.
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sentenced Appellant to an aggregate term of 8-20 years’ incarceration.2
Appellant filed an untimely motion for reconsideration of sentence on
February 15, 2013. See Pa.R.Crim.P. 720(A)(1) (directing that “a written
post-sentence motion shall be filed no later than 10 days after imposition of
sentence”). The trial court denied the untimely motion on February 28,
2013. Appellant then filed a notice of appeal on April 1, 2013. However,
because Appellant’s post-sentence motion was untimely, it did not stay the
30-day appeal period, thus rendering untimely his notice of appeal, which
was filed two months after his judgment of sentence. See Pa.R.A.P. 903
(“Except as otherwise prescribed by this rule, the notice of appeal … shall be
filed within 30 days after the entry of the order from which the appeal is
taken.”); see also Commonwealth v. Felmlee, 828 A.2d 1105, 1107 n.1
(Pa. Super. 2003) (“Only a timely-filed post-sentencing motion will trigger
an extension of the time for filing a notice of appeal.”). Accordingly, on June
14, 2013, this Court quashed Appellant’s untimely, first direct appeal.
Appellant subsequently filed a pro se PCRA petition on December 26,
2013. The PCRA court appointed PCRA counsel by order dated January 23,
2014, and ordered counsel to file an amended petition within 60 days. An
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2
Appellant’s aggregate sentence consisted of the following components:
Count 1 (delivery), 3-10 years’ incarceration; Count 2 (delivery), 5-10 years’
incarceration consecutive to Count 1; Counts 3-4 (delivery), 5-10 years’
incarceration each, concurrent to Counts 1 and 2; Count 4 (PWID), 5-10
years’ incarceration, concurrent to Counts 1 and 2.
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amended petition was filed, alleging that prior counsel had rendered
ineffective assistance by failing to file a timely notice of appeal from
Appellant’s January 30, 2013 judgment of sentence. By order dated May 14,
2014, the PCRA court granted relief by reinstating Appellant’s direct appeal
rights nunc pro tunc. Appellant then filed a nunc pro tunc notice of appeal
on June 12, 2014. Appellant filed a timely Pa.R.A.P. 1925(b) statement, and
the trial court issued its Rule 1925(a) opinion on August 12, 2014.
Appellant now presents the following questions for our review:
A. Whether Appellant was subjected to an unconstitutional
mandatory minimum sentencing statute?
B. Whether Appellant satisfies the jurisdictional requirements
of the Post-Conviction Relief Act pertaining to claims
raising newly asserted constitutional rights?
Appellant’s Brief at 4.
As an initial matter, we note that we will only address Appellant’s first
question. Appellant’s second question is not cognizable at this time, because
Appellant is before this Court on direct appeal from his January 30, 2013
judgment of sentence. Appellant is not before this Court on appeal from the
granting or denying of a PCRA court order. Accordingly, his second issue is
moot.
Here, it is undisputed that the trial court applied mandatory minimum
sentences (specifically, those prescribed by 18 Pa.C.S. § 7508) in fashioning
Appellant’s sentence. In Alleyne, the Supreme Court of the United States,
held that, pursuant to the Sixth Amendment, any fact that increases the
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mandatory minimum sentence for an offense must be submitted to a jury
and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2163.3
The express language utilized in Section 7508(b) (“Proof at
sentencing”) directly contradicts the Alleyne rule, as this Court recently
recognized in Commonwealth v. Vargas, 2014 WL 7447678 (Pa. Super.
Dec. 31, 2014) (en banc). Therein, a unanimous, en banc panel of this
Court explained:
A panel of this Court recently held that our en banc opinion in
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc)[,] and the panel decision in Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014)[,] mandate that we
hold 18 Pa.C.S.A. § 7508 unconstitutional in its entirety. Thus, a
mandatory minimum sentence imposed under this statute is
illegal. Commonwealth v. Fennell, 2014 WL 6505791, *1–8
(Pa. Super. Nov. 21, 2014). Specifically, the Fennell Court
noted that 18 Pa.C.S.A. § 7508 is structured in the same manner
as the statutes that were at issue in Newman and Valentine—
and, as was true with the statutes at issue in Newman and
Valentine, one particular subsection of 18 Pa.C.S.A. § 7508 is
clearly unconstitutional under Alleyne v. United States, –––
U.S. ––––, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). See 18
Pa.C.S.A. § 7508(b). In particular, Section 7508(b) contains the
following unconstitutional burdens and procedures: it declares
that the substantive, “aggravating facts” contained in Section
7508(a) are “not ... an element of the crime;” it declares that
notice of either the “aggravating facts” or of the applicability of
the mandatory minimum sentencing statute is “not ... required
prior to conviction;” it declares that the applicability of the
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3
The Supreme Court explained, “[t]he essential point is that the aggravating
fact produced a higher [sentencing] range, which, in turn, conclusively
indicates that the fact is an element of a distinct and aggravated crime. It
must, therefore, be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 133 S. Ct. at 2162-63.
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mandatory minimum statute “shall be determined at
sentencing;” it declares that the Commonwealth need only prove
the “aggravating facts” by a preponderance of the evidence;
and, it declares that a judge—and not a jury—is to act as the
fact-finder for purposes of determining the “aggravated facts.”
18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these burdens
and procedures unconstitutional.
Vargas, 2014 WL 7447678 at *17 (footnote omitted).
Because the Alleyne-offending provision of Section 7508 was
determined to be non-severable, any sentence imposed under that statute is
illegal. Id. (”[A]s the Appellant in the case sub judice was sentenced to a
mandatory minimum under Section 7508, which has been deemed
unconstitutional, we must vacate Appellant's judgment of sentence and
remand for resentencing, without consideration of the mandatory minimum
sentence.”). Thus, as Appellant was sentenced under that very same
statute, his sentence is illegal. Therefore, we remand for resentencing, with
instructions to the trial court to resentence Appellant without consideration
of the mandatory minimum sentences set forth in 18 Pa.C.S. § 7508.
The Commonwealth suggests that we should reserve judgment
regarding the legality of Appellant’s sentence, premised upon the argument
that Section 7508(b) is severable from the rest of Section 7508. However,
that matter was effectively decided in Vargas when this Court adopted the
reasoning of Newman, which had found a nearly identical ‘proof at
sentencing’ provision not severable from 42 Pa.C.S. § 9712.1. The
unanimous nature of our decision in Vargas with regard to the
unconstitutionality of the entirety of Section 7508 due to the Alleyne-
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offending subsection, Section 7508(b), leaves us unpersuaded by the
Commonwealth’s argument that Newman was wrongly decided on the
question of severability. Consequently, we decline to withhold judgment in
this matter pending our Supreme Court’s review of Newman (or Vargas).
Finally, both the trial court and the Commonwealth assert that
Alleyne is inapplicable in this case because Appellant admitted the facts
that triggered his mandatory minimum sentence during the course of his
guilty plea. We disagree. Admission of such facts, in the context of a guilty
plea, does not undermine the unconstitutional nature of the statute under
which Appellant was sentenced. In this regard, Appellant’s case is no
different from Vargas’, who had stipulated to the fact that triggered his
mandatory minimum sentence under Section 7508. Moreover, a careful
reading of Vargas indicates that, even if Section 7508(b) were severable
from the statute as a whole, Appellant’s sentence would still be illegal
regardless of his guilty plea admissions.4
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4
Part II of my concurring and dissenting opinion in Vargas, which was
joined by two other judges, was also effectively joined by two additional
judges in the second footnote to President Judge Emeritus Ford Elliott’s
concurring statement. See Vargas, 2014 WL 7447678 at *18 n.2 (Ford
Elliot, P.J.E., concurring statement). Consequently, a majority of the
Vargas Court held that pre-Alleyne stipulations to drug weights implicating
mandatory minimum sentences under Section 7508 cannot survive scrutiny
under Alleyne because “such pre-Alleyne stipulations only had the practical
effect of conceding that the Commonwealth could prove the weight of the
drugs by a preponderance of the evidence at sentencing.” Vargas, 2014 WL
7447678 at *22 (Bender, P.J.E., concurring and dissenting). Admissions of
drug weights that trigger mandatory minimum sentences under Section
(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judge Ott joins this memorandum.
Judge Olson files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
_______________________
(Footnote Continued)
7508 that were made during guilty pleas in the pre-Alleyne era are no
different in this regard from stipulations made during trials in the pre-
Alleyne era. In either case, such admissions were made in anticipation of a
lower standard of proof than is now required by Alleyne. Thus, Appellant’s
sentence cannot survive scrutiny under Alleyne, even if our Supreme Court
ultimately rejects the case for non-severability as set forth by this Court in
Newman, and as applied in Vargas.
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