Com. v. McRae, O.

Opinion

J-S83035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ORRIN WINSTON MCRAE : : Appellant : No. 1900 EDA 2017

Appeal from the Judgment of Sentence February 4, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001580-2013

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 17, 2018

Appellant, Orrin Winston McRae, appeals nunc pro tunc from the

judgment of sentence entered in the Delaware County Court of Common

Pleas, following his negotiated guilty plea to possession with intent to deliver

a controlled substance (“PWID”), possession of a firearm with an altered

manufacturer’s number, persons not to possess firearms, resisting arrest,

and fleeing or attempting to elude a police officer.1 Following entry of

Appellant’s negotiated plea on February 4, 2014, the court imposed the

agreed aggregate sentence of 8 to 16 years’ imprisonment plus two years’

concurrent probation. Appellant’s sentence for PWID included a mandatory

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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 6110.2; 6105; 5104; 75 Pa.C.S.A. § 3733, respectively. J-S83035-17

minimum per 42 Pa.C.S.A. § 9712.1.2 Appellant did not file a direct appeal.

On May 8, 2014, Appellant timely filed a pro se petition under the Post

Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. The court

appointed counsel, who filed a petition to withdraw and no-merit letter per

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On

September 25, 2014, the court let counsel withdraw and issued appropriate

notice per Pa.R.Crim.P. 907. The court denied PCRA relief on April 2, 2015.

On May 5, 2017, this Court reversed and remanded for reinstatement of

Appellant’s direct appeal rights nunc pro tunc. See Commonwealth v.

McCrae, 170 A.3d 1191 (Pa.Super. 2017).

Appellant timely filed a nunc pro tunc notice of appeal on June 2,

2017. On June 5, 2017, the court ordered Appellant to file a concise

statement of errors per Pa.R.A.P. 1925(b). Following an extension,

Appellant timely complied on August 23, 2017. On appeal, Appellant

challenges the legality of his mandatory minimum sentence, invoking

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013) (holding any fact that increases mandatory minimum sentence for ____________________________________________

2 See 42 Pa.C.S.A. § 9712.1(a), (c) (stating any person convicted of PWID shall be sentenced to minimum sentence of at least five years’ confinement, when at time of offense person was in physical possession or control of firearm or firearm was in close proximity to controlled substance; provisions of this section shall not be element of crime and applicability of this section shall be determined at sentencing by preponderance of evidence).

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crime is considered element of crime for fact-finder to find beyond a

reasonable doubt). See Commonwealth v. Newman, 99 A.3d 86, 98-102

(Pa.Super. 2014) (en banc) (holding Section 9712.1 is unconstitutional;

vacating and remanding for resentencing without imposition of mandatory

minimum under Section 9712.1).

Instantly, the court imposed a mandatory minimum sentence for

Appellant’s PWID conviction under Section 9712.1. The imposition of the

mandatory minimum sentence under that statute was unlawful. See id.

Both the trial court and the Commonwealth agree that Appellant is entitled

to sentencing relief under Alleyne and its progeny. Accordingly, we vacate

the judgment of sentence and remand for resentencing without imposition of

any mandatory minimum sentence.

Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/18

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