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[U] Commonwealth v. Callaway

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RAYMOND CALLAWAY Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence June 13, 2013 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000957-2012

BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J. JUDGMENT

ORDER

PANELLA, J.

In Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), 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. This Court has held that Alleyne applies to mandatory minimum sentences imposed in Pennsylvania. See Commonwealth v. Munday, 78 A.3d 661, 666 (Pa.Super. 2013).

Here, after a jury trial, the trial court imposed a flat five-year mandatory minimum sentence as it found that the Commonwealth proved by a preponderance of the evidence that Callaway possessed a firearm in close proximity to a controlled substance. The trial court, see Trial Court Opinion, 8/14/13, at 5, the Commonwealth, see Appellee's Brief, at 7, and Callaway, see Appellant's Brief, at 12, all agree that pursuant to Alleyne that the judgment of sentence must be vacated and remanded for re-sentencing. We also agree.

While at the time of sentencing in this matter, which preceded the decision in Alleyne, the trial court acted in accordance with the law in making the factual determination that resulted in the imposition of the mandatory minimum sentence, such action cannot now withstand judicial scrutiny as it results in an illegal sentence. Accordingly, we vacate the judgment of sentence and remand this case for re-sentencing.

Judgment of sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished. Judgment Entered.


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