Commonwealth v. Motley

J-S72011-17
2018 Pa. Super. 8
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTOINE MOTLEY,
Appellant No. 1940 EDA 2016
Appeal from the Judgment of Sentence Entered June 19, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003997-2007
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*
OPINION BY BENDER, P.J.E.: FILED JANUARY 19, 2018
Appellant, Antoine Motley, appeals nunc pro tunc from the judgment of
sentence of an aggregate term of 15 to 30 years’ incarceration, followed by
10 years’ probation, imposed after he was convicted of various offenses
including robbery and carrying a firearm without a license. Appellant solely
challenges the legality of his sentence. After careful review, we agree with
Appellant that his sentence is illegal, albeit for a different reason than he
posits herein. Accordingly, we vacate his judgment of sentence and remand
for resentencing.
Briefly, Appellant and a cohort were arrested after they committed an
armed robbery of two employees of the United States Postal Service.
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*
Former Justice specially assigned to the Superior Court.
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Appellant was charged with various offenses and, following a jury trial in
April of 2012, he was convicted of two counts of robbery (threatening
immediate serious bodily injury), 18 Pa.C.S. § 3701(a)(1)(ii); carrying a
firearm without a license, 18 Pa.C.S. § 6106(a)(1); and possessing an
instrument of crime (PIC), 18 Pa.C.S. § 907(a). On June 19, 2012, the court
sentenced Appellant to consecutive terms of 7½ to 15 years’ incarceration
for his two robbery convictions, and two consecutive terms of 5 years’
probation for his PIC and firearm offenses. Therefore, Appellant’s aggregate
sentence is 15 to 30 years’ incarceration, followed by 10 years’ probation.
Appellant filed a timely direct appeal and this Court affirmed, deeming
Appellant’s two issues waived based on his failure to develop any meaningful
argument in support thereof. See Commonwealth v. Motley, No. 1750
EDA 2012, unpublished memorandum at 2-3 (Pa. Super. filed Oct. 15,
2013). Appellant did not file a petition for allowance of appeal with our
Supreme Court.
Instead, on January 7, 2014, Appellant file a timely, pro se petition
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Counsel was appointed and filed an amended petition on Appellant’s behalf,
seeking the restoration of his direct appeal rights. The PCRA court granted
that petition, and Appellant filed the present, nunc pro tunc appeal from his
judgment of sentence. Herein, he raises one issue for our review: “Whether
Appel[l]ant’s sentence should be vacated because it is based upon an illegal
mandatory minimum [sentence?]” Appellant’s Brief at 6.
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Appellant contends that he received two mandatory minimum
sentences for his robbery convictions, and that those sentences are illegal in
light of Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (holding
that “facts that increase mandatory minimum sentences must be submitted
to the jury” and found beyond a reasonable doubt). Based on the following
procedural history and legal authority, we disagree with both of Appellant’s
arguments.
First, after Appellant’s conviction and prior to his sentencing hearing,
the Commonwealth filed a notice of its intent to seek, for each of Appellant’s
two robbery convictions, the imposition of a 10-year, mandatory minimum
sentence as required by 42 Pa.C.S. § 9714 (Sentences for second and
subsequent offenses). However, as the trial court acknowledges, it did not
orally impose those mandatory minimum terms of 10 years’ incarceration at
the sentencing proceeding on June 19, 2012. See Trial Court Opinion,
3/22/17, at 4. Instead, the court imposed a term of 7½ to 15 years’
imprisonment for each of Appellant’s robbery convictions. See id. The
court’s written sentencing order filed that same day also sets forth
consecutive sentences of 7½ to 15 years’ incarceration for those crimes.
Notwithstanding, Appellant now claims that he received mandatory
minimum sentences for his robbery convictions. His argument rests on the
fact that a court commitment form (“form DC-300B”) accompanying the
written sentencing order has the “yes” box checked under the heading
“Mandatory Sentence.” According to Appellant, form DC-300B constitutes
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the written sentencing order, and evinces that mandatory minimum
sentences were applied in his case. He then cursorily states that those
sentences are illegal under Alleyne.
Appellant’s argument is wholly unconvincing. First, form DC-300B
does not constitute part of the trial court’s sentencing order; rather, it is
simply a document generated by the Common Pleas Criminal Court Case
Management System that must be provided to the Department of
Corrections (DOC) upon the commitment of an inmate. See 42 Pa.C.S. §
9764(a). The written sentencing order, signed by the trial judge, constitutes
the sentence imposed by the court. See Commonwealth v. Borrin, 80
A.3d 1219, 1226 (Pa. 2013) (“In Pennsylvania, the text of the sentencing
order … is determinative of the court’s sentencing intentions and the
sentence imposed.”) (citations omitted). Here, that sentencing order
unequivocally demonstrates that Appellant did not receive a mandatory
minimum of 10 years’ incarceration for either of his robbery convictions.
See Sentencing Order, 6/19/12 (stating a sentence of “a Minimum Term of 7
years and 6 months and a Maximum Term of 15 years” for both of
Appellant’s robbery convictions).
Second, even if Appellant had received a mandatory minimum
sentence under section 9714, he is incorrect that that provision is
unconstitutional under Alleyne. Curiously, Appellant recognizes that
mandatory minimum sentences predicated on prior convictions are an
exception to the rule announced in Alleyne. See Appellant’s Brief at 9
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(“Subsequent to [Alleyne,] the appellate courts in this Commonwealth have
consistently held that, with the exception of mandatory minimum sentences
predicated on prior offenses, all of Pennsylvania’s mandatory minimum
sentencing provisions that require the sentencing court to ascertain the
application of the mandatory minimum provisions are unconstitutional.”)
(emphasis added); see also Alleyne, 133 S. Ct. at 2160 n.1. As this Court
has recognized, the mandatory minimum sentences set forth in section 9714
are predicated on prior convictions and, thus, that provision is not
unconstitutional under Alleyne. See Commonwealth v. Bragg, 133 A.3d
328, 333 (Pa. Super. 2016) (recognizing that 42 Pa.C.S. § 9714 “is not
unconstitutional under Alleyne as it provides for mandatory sentences
based on prior convictions”), aff’d, 169 A.3d 1024 (Pa. 2017) (per curiam
order). Thus, Appellant’s challenge to the legality of his sentence is
meritless on this basis, as well.
The Commonwealth, however, presents a convincing argument that
Appellant’s robbery sentences are illegal for a different reason. Specifically,
the Commonwealth maintains that “the court imposed an illegal sentence by
not applying [s]ection 9714 to [Appellant’s] robbery convictions.”
Commonwealth’s Brief at 11 (emphasis in original).1 The Commonwealth
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1
We recognize that the Commonwealth did not raise this sentencing claim
before the trial court, nor exercise its statutory right to appeal from the trial
court’s failure to apply the mandatory sentences. See 42 Pa.C.S. § 9714(f)
(“If a sentencing court shall refuse to apply this section where applicable,
(Footnote Continued Next Page)
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stresses that it “took all the necessary actions to invoke the mandatory
minimum sentences[,]” including filing a notice of its intent to seek those
sentences and “furnish[ing Appellant] with documentation for his prior
robbery convictions,” which were “marked and moved … into the record at
the sentencing hearing.” Id. at 9 (citing N.T. 6/19/12, at 10-11).
The record supports the Commonwealth’s argument that it adhered to
the requirements for invoking application of section 9714. Accordingly, the
trial court was statutorily required to determine, at Appellant’s sentencing
hearing, whether section 9714 is applicable to Appellant and, if so, to impose
the mandatory terms of incarceration required by that provision. See 42
Pa.C.S. § 9714(d) (discussing the requirements of the court for determining
the applicability of section 9714(a) at the sentencing proceeding); 42
Pa.C.S. § 9714(e) (stating that “[t]here shall be no authority in any court to
impose on an offender to which this section is applicable any lesser sentence
than provided for in subsections (a) and (a.1)”). Because the trial court did
not adhere to the dictates of section 9714, Appellant’s sentences for his two
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(Footnote Continued)
the Commonwealth shall have the right to appellate review of the action of
the sentencing court.”). However, our Supreme Court has held “that where
a sentencing court is required to impose a mandatory minimum sentence,
and that mandatory minimum sentence affects a trial court’s traditional
sentencing authority or the General Assembly’s intent in fashioning
punishment for criminal conduct, a defendant’s challenge thereto sounds in
legality of sentence and is therefore nonwaivable.” Commonwealth v.
Foster, 17 A.3d 332, 345 (Pa. 2011). We see no reason why this rule would
not apply in the context of the Commonwealth’s challenge to the court’s
failure to impose a mandatory sentence.
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robbery convictions are illegal and must be vacated. See Commonwealth
v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (“If no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction. … An illegal sentence must be vacated.”) (quoting
Commonwealth v. Alexander, 811 A.2d 1064, 1065, 1066 (Pa. Super.
2002)).2 As our disposition in this regard upsets the court’s overall
sentencing scheme, we vacate Appellant’s judgment of sentence in its
entirety, and remand for resentencing on all counts. See Commonwealth
v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating that if our
disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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2
Unfortunately for Appellant, our disposition will result in the trial court’s
imposing lengthier sentences for his two robbery convictions, assuming that
it finds section 9714(a) applicable to his case. However, the trial court
clearly retains its discretion to craft a similar (or lesser) aggregate sentence
than that which it originally imposed, by running Appellant’s sentences
concurrently rather than consecutively, and/or by imposing terms of
incarceration for his other offenses. Regardless of whether outcome of
Appellant’s resentencing ultimately benefits him, we must vacate his illegal
sentences, as we have jurisdiction to do so. See Randal, 837 A.2d at 1214
(citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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