Appeal from the Judgment of Sentence January 10, 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004566-2012
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. [*]
Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County pursuant to Appellee, Andre Hughes's open guilty plea to possession of marijuana with intent to deliver. Specifically, the Commonwealth contends that the trial court erred in failing to impose a mandatory minimum sentence pursuant to the Drug-Free School Zones Act, 18 Pa.Cons.Stat.Ann. § 6317. After careful review, we conclude that pursuant to Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013), the record cannot legally support the imposition of a mandatory minimum sentence, and therefore affirm.
Given the procedural posture of this case, a detailed factual and procedural summary is unnecessary. Hughes pled guilty to possession with intent to deliver marijuana. The trial court subsequently held a sentencing hearing to determine whether the mandatory minimum sentence imposed by the Drug-Free School Zones Act applied. After a hearing, the trial court concluded that the building did not qualify as a "school" under the Drug-Free School Zones Act.
The trial court concluded that the building did not house teaching or instruction of students, but rather constituted a satellite facility for a program of on-line instruction. On appeal, the Commonwealth argues that the trial court erred in concluding that no instruction occurred at the PCCS building.
However, during the pendency of this appeal, the Supreme Court of the United States published its decision in Alleyne v. United States, U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court held that sentencing factors that support the imposition of a mandatory minimum sentence must be submitted to a jury for trial or admitted to by the defendant. See Alleyne; United States v. Yancy, 725 F.3d 596 (6th Cir. 2013). A subsequent panel of this Court held that Alleyne applies to mandatory minimum sentences imposed in Pennsylvania. See Commonwealth v. Munday, 78 A.3d at 666.
Here, the oral guilty plea colloquy is not part of the certified record.Furthermore, the written guilty plea colloquy sets forth the maximum sentence possible, but does not refer to the imposition of a mandatory minimum sentence, despite the presence of a section pre-printed for this circumstance. Combined with the fact that the Commonwealth has not argued, in the trial court or here on appeal, that Hughes admitted to facts sufficient to require imposition of the mandatory minimum sentence, we are left with no basis for the imposition of the mandatory minimum that comports with Munday and Alleyne. Accordingly, we must affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction ...