Submitted: October 28, 2014.
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0009069-2012. Before NICHOLS, J.
Karl Baker, Public Defender, Philadelphia, for appellant.
Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.[*] OPINION BY MUNDY, J.
Appellant, Jamar Cardwell, appeals from the June 18, 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. After careful review, we vacate and remand for resentencing.
We summarize the relevant factual and procedural background of this case as follows. On August 8, 2012, the Commonwealth filed an information charging Appellant with the above-mentioned offenses. On March 23, 2013, Appellant proceeded to a one-day bench trial, at the conclusion of which the trial court convicted Appellant of both charges. On June 18, 2013, the trial court imposed a sentence of three to six years' imprisonment on each charge, to run concurrently to each other. Relevant to this appeal, Appellant received a three-year mandatory minimum sentence for PWID on the basis of the weight of the phencyclidine (PCP), pursuant to 18 Pa.C.S.A. § 7508(a)(4)(i). Appellant filed a timely post-sentence motion on June 26, 2013, which the trial court denied on August 13, 2013. On August 14, 2013, Appellant
filed a timely notice of appeal.
On appeal, Appellant raises one 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 provisions 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 ...