Com. v. Serrano, M.

• Court: Superior Court of Pennsylvania
• Decided: June 4, 2015
• Docket: 982 WDA 2013
• Status: Unpublished

Opinion

J-S29001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL SERRANO

Appellant No. 982 WDA 2013

Appeal from the Judgment of Sentence May 3, 2013 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000099-2011

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.

JUDGMENT ORDER BY PANELLA, J. FILED JUNE 04, 2015

A previous panel of this Court remanded this case for re-sentencing.

See Commonwealth v. Serrano, 61 A.3d 279 (Pa. Super. 2013). On

remand, the sentencing court imposed sentence on counts two through four

and ran the sentences consecutively. Count two is Serrano’s conviction for

possession with intent to deliver a controlled substance (heroin), 35 P.S.

780-113(a)(30), and the trial court imposed a term of imprisonment of

fifteen to thirty years. The sentence for count two imposed a mandatory

minimum, as the sentencing court notes in its sentencing order. See Order,

5/3/13, at 6, ¶10.

____________________________________________

 Retired Senior Judge assigned to the Superior Court. J-S29001-15

There is a problem with this sentence. It is illegal. This Court has

held that section 7508 is facially invalid pursuant to Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). Simply put,

“a mandatory minimum sentence imposed under this statute is illegal.”

Commonwealth v. Vargas, 108 A.3d 858, 876 (Pa. Super. 2014) (en

banc) (citing Fennell).

We have little doubt that our decision upsets the sentencing scheme.

Accordingly, we vacate the judgment of sentence and remand for re-

sentencing. See, e.g., Commonwealth v. Phillips, 946 A.2d 103, 115

(Pa. Super. 2008) (“If a correction by this Court may upset the sentencing

scheme envisioned by the trial court, the better practice is to remand.”).1

Judgment of sentence vacated. Case remanded for re-sentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/4/2015

1 Our disposition makes the first issue raised on appeal moot.

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