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Commonwealth v. Fennell

Superior Court of Pennsylvania

November 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CASEEN FENNELL, Appellant

Submitted October 28, 2014

Page 14

Appeal from the Judgment of Sentence August 12, 2013 of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0013779-2012. Before NICHOLS, J.

Karl Baker, Public Defender, Philadelphia, and Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, MUNDY, and PLATT, JJ.[*]

OPINION

Page 15

MUNDY, J.:

Appellant, Caseen Fennell, appeals from August 12, 2013 aggregate judgment of sentence of three to six years' imprisonment after he was convicted of one count each of possession with intent to deliver (PWID) and intentional possession of a controlled substance.[1] After careful review, we vacate and remand for resentencing.

We summarize the relevant factual and procedural history of this case as follows. On November 29, 2012, the Commonwealth filed an information, charging Appellant with the above-mentioned offenses. On May 1, 2013, Appellant proceeded to a bench trial, at the conclusion of which, the trial court found Appellant guilty of the same. On August 12, 2013, the trial court sentenced Appellant to three to six years' imprisonment for PWID, and no further penalty for the possession charge, as the counts merged for the purposes of sentencing. Relevant to this appeal, Appellant received a three-year mandatory minimum sentence on the basis of the weight of the heroin, pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i). On August 23, 2013, Appellant filed an untimely post-sentence motion, but the trial court did not take any action. On September 11, 2013, Appellant filed a timely notice of appeal.[2]

On appeal, Appellant raises the following issue for our review.

Did not the [trial] court err in applying certain provisions of the mandatory minimum sentencing statute at 18 Pa.C.S. § 7508 to [Appellant]'s case, and thereby sentencing [Appellant] to a term of incarceration of 3 to 6 years, in that portions of [Section] 7508 are facially unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and are non-severable from the remaining portions of the statute?

Appellant's Brief at 3.

At the outset, we note that issues pertaining to Alleyne go directly to the legality of the sentence. Commonwealth v. Lawrence, 2014 PA Super 182, 99 A.3d 116, 123 (Pa. Super. 2014). With this in mind, we begin by noting our well-settled standard of review. " A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction." Commonwealth v. Borovichka, 2011 PA Super 88, 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation omitted). It is also well-established that " [i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Commonwealth v. Rivera, 2014 PA Super 140, 95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). " An illegal sentence must be vacated." Id. " Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Akbar, 2014 PA Super 89, 91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted).

In this case, Appellant was sentenced under a mandatory minimum statute at Section 7508, which provides in relevant part as follows.

§ 7508. Drug trafficking sentencing and penalties
(a) General rule.--Notwithstanding any other provisions of ...

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