Appeal from the Judgment of Sentence May 24, 2011, Court of Common Pleas, Montgomery County, Criminal Division at No. CP-46-CR-0007715-2010
The opinion of the court was delivered by: Donohue, J.:
BEFORE: STEVENS, P.J., BENDER and DONOHUE, JJ.
Paul Leonard Stein ("Stein") appeals from the judgment of sentence entered on May 24, 2011 by the Court of Common Pleas, Montgomery County. We affirm.
The facts of this case are not in dispute, and were aptly summarized by the trial court as follows:
On January 28, 2011, Stein pled guilty to one count of delivery of marijuana and one count of possession with the intent to deliver marijuana.[FN]1 At the guilty plea hearing, during which Stein was unequivocally advised of the five-year mandatory minimum sentence, Stein specifically admitted that: (a) on September 8, 2010 he delivered approximately one pound of marijuana to an undercover police officer within 100 feet of Cheltenham High School; (b) upon his arrest, police seized a Smith and Wesson .9mm revolver and $1,500 in marked currency from his person; and (c) on the same date, police executing a search warrant at Stein's residence found additional marijuana, firearms and a bulletproof vest.
Based on these facts, Stein entered into an open guilty plea to two counts of possession with the intent to deliver marijuana, in exchange for the Commonwealth's promise to: (a) nol prosse the remaining charges; (b) not seek the school zone sentencing enhancement; and (c) not seek to have the Court sentence Stein to consecutive sentences. It was made clear to Stein, however, that the Commonwealth would seek a mandatory minimum five-year sentence on the delivery count, based on the fact that he was carrying a gun at the time of the offense.
The Commonwealth timely filed its Notice of Intent to Seek Mandatory Sentence, again advising Stein of its intent to seek the mandatory minimum term of five years for certain drug offenses committed with firearms, pursuant to 42 Pa.C.S. § 9712.1. At sentencing on May 24, 2011, the [c]court determined that on September 8, 2010, Stein was in possession of a Smith & Wesson .9 mm [sic] revolver when he engaged in a controlled sale of marijuana to undercover officers. Accordingly, the undersigned recognized that the aforementioned mandatory minimum was applicable and sentenced Stein to a flat five year term,*fn1 in accordance with the parties' agreement.
[FN]1 35 P.S. § 780-113(a)(30).
Trial Court Opinion, 9/28/11, at 1-2 (record citations omitted).
Stein did not file post-sentence motions. He filed a timely notice of appeal on June 17, 2011, and he complied with the trial court's order for a concise statement pursuant to Pa.R.A.P. 1925(b). He raises the following issues for our review:
[1.] Is the mandatory sentence set forth in 42 Pa.C.S. § 9712.1 applicable to situations where a defendant, who is convicted of violating 35 P.S. § 780-113(a)(30), is licensed to carry a firearm and the firearm is not ...