Appeal from the Judgment of Sentence July 10, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000234-2012
BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Lycoming County Court of Common Pleas, following the bench trial convictions of Appellee, Timothy D. Eiland, for possession of a controlled substance, possession of a controlled substance with the intent to deliver ("PWID"), and possession of drug paraphernalia. We affirm.
The relevant facts and procedural history of this case are as follows. On January 25, 2012, following a traffic stop, police discovered drugs on Appellee's person and drug paraphernalia in the rental vehicle Appellee was driving. The Commonwealth charged Appellee with various drug related offenses. At a bench trial on May 6, 2013, the court convicted Appellee of simple possession, PWID, and possession of drug paraphernalia. After trial, the Commonwealth issued notice of its intent to seek the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 6317 (mandating two year minimum sentence for defendant convicted of PWID where offense occurred within 1, 000 feet of school or within 250 feet of playground).
Appellee proceeded to sentencing on July 10, 2013. At sentencing, defense counsel argued imposition of the mandatory minimum sentence would be improper, in light of the United States Supreme Court's recent decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing mandatory minimum sentence for crime is considered element of crime to be submitted to fact-finder and found beyond reasonable doubt). After argument, the court permitted the Commonwealth to present testimony concerning where Appellee's offenses occurred in relation to a school and a playground. Thereafter, the court explained it found Appellee committed PWID within 1, 000 feet of a school and within 250 feet of a playground but refused to impose the mandatory minimum sentence under Section 6317, in light of Alleyne. (Sentencing Order, 7/10/13, at 1). The court sentenced Appellee to an aggregate term of fourteen (14) to twenty-eight (28) months' imprisonment, plus one year of probation. The Commonwealth timely filed a notice of appeal on July 25, 2013. On July 31, 2013, the court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely complied.
The Commonwealth raises one issue for our review:
WHETHER THE TRIAL COURT ERRED BY REFUSING TO IMPOSE THE MANDATORY MINIMUM SENTENCE REQUIRED BY 18 PA.C.S.A. § 6317 ("DRUG-FREE SCHOOL ZONES").
(Commonwealth's Brief at 8).
Our standard of review is as follows:
Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012), appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).
The Commonwealth argues the circumstances of this case are distinguishable from Alleyne because Alleyne involved a jury trial, and Appellee had a bench trial. The Commonwealth contends it established at sentencing, before the same judge who sat as fact-finder at Appellee's trial, that Appellee committed PWID within 1, 000 feet of a school and within 250 feet of a playground. The Commonwealth maintains the United States Supreme Court decided Alleyne prior to Appellee's sentencing, so the court was aware at sentencing a determination on whether Appellee's offense took place within those parameters had to be made beyond a reasonable doubt. The Commonwealth suggests the court rendered its sentencing finding that Appellee's PWID offense occurred within the requisite boundaries under a "beyond a reasonable doubt" ...