OPINION BY BENDER, J.
Appellant, Herbert Munday, appeals from the judgment of sentence of an aggregate term of 5-10 years' incarceration imposed following his conviction for drug and firearm offenses. In light of the Supreme Court of the United States' recent holding in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Appellant argues the imposition of a mandatory minimum term of 5 years' incarceration pursuant to 42 Pa.C.S. § 9712.1 constitutes an illegal sentence because the facts necessary for imposition of the mandatory minimum were not established beyond a reasonable doubt. After
The trial court summarized the facts underlying Appellant's conviction as follows:
Trial Court Opinion, 8/2/12, at 1-2.
Following Appellant's arrest, the Commonwealth charged him by criminal information with: 1) delivery of a controlled substance (cocaine), 35 P.S. § 780-113(a)(30); 2) person not to possess firearms, 18 Pa.C.S. § 6105; 3) possessing instruments of crime, 18 Pa.C.S. § 907; and 4) possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16). In the criminal information, the Commonwealth gave notification of its intent to pursue a mandatory minimum sentence under 42 Pa.C.S. § 9712.1 (sentences for certain drug offenses committed with firearms). Appellant's non-jury trial commenced and ended on July 13, 2010. The trial court convicted Appellant on all counts. Sentencing was postponed to allow for the preparation of a presentence investigation report.
The sentencing hearing was subsequently held on November 2, 2010. At count 1, the trial court imposed a 5-year mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712.1. At count 2, the trial court sentenced Appellant to a concurrent term of 1-2 years' incarceration. Likewise, at count 3, Appellant was sentenced to a concurrent term of 1-2 years' incarceration. Appellant's sentence at count 4 merged with his sentence at Count 1. Thus, the
Appellant filed a timely notice of appeal on November 8, 2010. After Appellant filed a pro se docketing statement, we remanded, by order dated January 5, 2011, to determine if Appellant had been abandoned by trial counsel. On April 29, 2011, the trial court permitted Appellant's trial counsel to withdraw and then appointed Appellant's current counsel. The trial court filed its Pa.R.A.P. 1925(a) opinion on August 7, 2012, wherein it found Appellant had waived any claims for appellate review because current counsel had failed to file a timely Pa.R.A.P. 1925(b) concise statement. Appellant filed a motion with this Court seeking remand for the filing of a concise statement. By order dated November 7, 2012, we granted Appellant's motion, providing him with 21 days to file a concise statement and ordering the trial court to file a responsive opinion pursuant to Pa.R.A.P. 1925(a). Appellant complied by filing a concise statement with the trial court on November 28, 2012, however, by that time the trial court judge, The Honorable Willis W. Berry, had retired from the Court of Common Pleas. Consequently, the only trial court opinion of record in this matter was the one Judge Berry issued on August 7, 2012.
In Appellant's initial Brief, he presented a single issue for our review. Appellant claimed there was insufficient evidence to apply the mandatory minimum sentence imposed pursuant to 42 Pa.C.S. § 9712.1. During Appellant's oral argument, his counsel advised this Court of the recent United States Supreme Court decision in Alleyne, which had been decided only days prior to the submission of Appellant's Brief. Appellant requested, and we granted him, permission to file a Supplemental Brief to address the applicability of Alleyne in the instant matter. In Appellant's Supplemental Brief, he presents the following claim for our review:
Appellant's Supplemental Brief, at 1.
"A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction." Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super.2007) (en banc). The phrase `illegal sentence' is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Id. at 21. Those categories are: "(1) claims that the sentence fell `outside of the legal parameters prescribed by the applicable statute'; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)." Id. The instant case falls into the latter category.
In Apprendi, the Supreme Court of the United States held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Stated another way, it "is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed
Prior to Apprendi, in McMillan v. Pennsylvania, 477 U.S. 79, 80, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Supreme Court of the United States considered a constitutional challenge to a previous version of the statute at issue in this case, 42 Pa.C.S. § 9712. The portion of the statute at issue in McMillan is not dissimilar to the portion of 42 Pa.C.S. § 9712.1 before us today: the prior version of the statute mandated "that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the person `visibly possessed a firearm' during the commission of the offense." McMillan, 477 U.S. at 81, 106 S.Ct. 2411. The McMillan court considered, inter alia, whether that provision was unconstitutional pursuant to "the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment." Id. at 80, 106 S.Ct. 2411. The High Court held that it was not unconstitutional because the provision expressly made visible possession of a firearm a sentencing factor rather than an element of the underlying offense. Thus, the Court concluded, because it was not an element of the offense, the Constitution did not require visible possession of the firearm to be proven beyond a reasonable doubt. Id. at 91, 106 S.Ct. 2411.
In light of its holding in Apprendi, the Supreme Court of the United States revisited the McMillan decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). The statute at issue in Harris involved an increase in the minimum sentence if, at sentencing, it was determined that the defendant brandished a firearm during the commission of the underlying offense. The Harris Court concluded that judicial factfinding that increased the minimum sentence to be imposed, but did not increase the sentence beyond the statutory maximum, was permissible under the Sixth Amendment. Harris, 536 U.S. at 567-68, 122 S.Ct. 2406. Premised upon the McMillan, Apprendi, and Harris decisions, this Court had previously held that judicial factfinding of sentencing factors giving rise to a mandatory minimum sentence imposed in accordance with 42 Pa.C.S. § 9712.1 is not violative of either the United States or Pennsylvania Constitutions' right to trial by jury. See Commonwealth v. Nguyen, 834 A.2d 1205, 1208 (Pa.Super.2003) ("Appellate case law has routinely held that the sentencing trigger is not an element of the offense but rather only a factor that does not improperly deny the jury the right to make relevant factual determinations.").
This term, in Alleyne, the United States Supreme Court expressly overruled Harris, holding that any fact that increases the mandatory minimum sentence for a crime "is `an element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The Alleyne majority reasoned that "[w]hile Harris limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum." Alleyne, 133 S.Ct. at 2160. This is because "[i]t is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime[,]" and "it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment." Id. at 2161. Thus, "[t]his reality demonstrates that the core crime and the fact triggering the
Turning to the instant case, Appellant was subjected to the mandatory minimum sentence provided for in 42 Pa.C.S. § 9712.1, the current manifestation of the mandatory minimum sentencing statute at issue in McMillan. Section 9712.1 provides, in pertinent part, as follows:
42 Pa.C.S. § 9712.1 (footnote omitted).
Presuming the trial court followed the dictates of section 9712.1(c) (and we have no reason to presume otherwise), the determination of whether Appellant, "at the time of the offense[,] [was] in physical possession or control of a firearm" under section 9712.1(c) was treated as a `sentencing factor' and not `an element' of the underlying drug offense. As such, the trial court was only required to make such a finding based upon a preponderance of the evidence rather than based upon proof beyond a reasonable doubt. Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067, 1070 (1985) (providing that when a sentencing factor "is not an element of the offense ... [it only] requires proof of the sentencing factor by a preponderance of the evidence"). However, Alleyne undeniably establishes, despite our legislature's express statutory language to the contrary in this instance, that when a mandatory minimum sentence is under consideration based upon judicial factfinding of a `sentencing factor,' that `sentencing factor' is, in reality, "an element of a distinct and aggravated crime" and, thus, requires it be proven beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163.
Appellant has not presented us with the question, and we decline to address, sua sponte, whether section 9712.1 is facially invalid in light of Alleyne. Nevertheless, we conclude that the imposition of the mandatory sentencing provision of 42 Pa.C.S. § 9712.1 in this case violated the rule in Apprendi as interpreted by Alleyne. Because the `sentencing factor' at issue was not determined by the factfinder to have been proven beyond a reasonable doubt, Appellant's sentence violated the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment. Accordingly, we vacate the judgment of sentence and remand for resentencing.