February 11, 2014
COMMONWEALTH V. PENNSYLVANIA, Appellee
JEFFREY J. HAMPTON, Appellant
Appeal from the Judgment of Sentence of November 18, 2011 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004702-2009
BEFORE: BOWES, OTT, and STRASSBURGER, [*] JJ.
Jeffrey J. Hampton (Appellant) appeals from his aggregate judgment of sentence of 7 to 14 years of incarceration for six counts of delivery and/or possession with intent to deliver (PWID) (methamphetamine), four counts of PWID (cocaine), sixteen counts of criminal conspiracy (PWID), three counts of possession of a controlled substance, and ninety-four counts of criminal use of communication facility. We vacate Appellant's judgment of sentence and remand for resentencing.
A jury convicted Appellant of the above crimes on March 17, 2011. Appellant was found not guilty of numerous other drug-related charges, including corrupt organizations, conspiracy to conduct corrupt organizations, and dealing in the proceeds of unlawful activity.
A hearing was held, after which the trial court found by a preponderance of the evidence that Appellant possessed specific quantities of methamphetamines and cocaine, which subjected him to mandatory minimum terms of seven years of incarceration and five years of incarceration. See 18 Pa.C.S. §§ 7508(a)(4)(ii) and (a)(3)(ii), respectively. On November 18, 2011, the trial court sentenced Appellant to an aggregate term of 7 to 14 years' incarceration.
Appellant timely filed post-sentence motions challenging both his conviction and his sentence, specifically the application of the mandatory minimum sentences, which were denied on July 3, 2012. Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with the provisions of Pa.R.A.P. 1925. By memorandum decision filed September 13, 2013, this Court affirmed Appellant's judgment of sentence. On September 24, 2013, Appellant filed an application for reargument based upon the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which Appellant claimed provided a new point of controlling law applicable to all cases pending on direct appeal. Application for Reargument, 9/24/2013, at 2. By order of October 29, 2013, we granted panel reconsideration of the appeal, withdrew our memorandum decision, and directed the parties to file new briefs addressing the applicability of Alleyne.
Having received those briefs, we proceed to review the issue,  phrased by Appellant as follows: "Whether the trial court's imposition of mandatory minimum sentences on the charges of delivery/possession with intent to deliver a controlled substance … pursuant to 18 Pa.C.S. §§ 7508(a)(4)(ii) and (a)(3)(i) and (ii) was unlawful under Alleyne[ ]?" Substitute Brief of Appellant at 2.
The trial court accurately summarized the statute under which Appellant was sentenced as follows.
18 Pa.C.S. Section 7508(a)(3)(ii) directs that when a person is convicted of possessing between ten and 100 grams of cocaine with the intent to deliver and he has been convicted of another drug trafficking offense, he shall be sentenced to a minimum of five years in prison. Similarly, 18 Pa.C.S. Section 7508[a](4)(ii) states that when a person is convicted of possessing between ten and 100 grams of methamphetamine with the intent to deliver and he has been convicted of another drug trafficking offense, he shall be sentenced to a minimum of seven years in prison. Further, 18 Pa.C.S. Section 7508(b) provides:
Provisions of this section shall not be an element of the crime: Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability, of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
18 Pa.C.S. Section 7508(b).
Thus, pursuant to [section 7508], it is "appropriate for the trial court to determine at sentencing whether the amount of narcotics which [defendant] intended for delivery equaled or exceeded that which made applicable the mandatory sentence provision of the statute." Commonwealth v. Carroll, 651 A.2d 171 (Pa.Super. 1994).
Trial Court Order, 7/3/2012, at 4-5.
However, in Alleyne, the Supreme Court held as follows.
Any fact that, by law, increases the penalty for a crime is an "element" that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury.
Alleyne, 133 S.Ct. at 2155. Judicial fact finding of an "element" of a crime is unconstitutional. See Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000) ("Taken together, [the Sixth and Fourteenth Amendments] indisputably entitle a criminal defendant to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.") (internal quotation omitted).
Hence, application of section 7508 in sentencing Appellant violated his Sixth and Fourteenth Amendment rights as interpreted by Alleyne. See Commonwealth v. Munday, 78 A.3d 661, 666 (Pa.Super. 2013) ("Because the 'sentencing factor' at issue was not determined by the factfinder to have been proven beyond a reasonable doubt, Appellant's sentence violated the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment."). Indeed, even the Commonwealth concedes that Appellant's sentence "must be vacated and the case remanded to the Court of Common Pleas of Chester County for resentencing in light of Alleyne and Munday." Commonwealth's Letter Brief, 12/9/2013. Accordingly, we vacate Appellant's judgment of sentence and remand the case for resentencing.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.