J-S14006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TITO GARCIA

Appellant No. 2844 EDA 2013

Appeal from the Judgment of Sentence June 4, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003693-2011

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY OLSON, J.: FILED MAY 15, 2015

The learned Majority concludes that the trial court improperly used the 

mandatory minimum sentence contained in 18 Pa.C.S.A. § 7508 in 

sentencing Tito Garcia (Garcia). Finding that the court’s alleged reliance on 

§ 7508 resulted in an illegal sentence, the Majority vacates Garcia’s 

sentence and remands. In so doing, the Majority effectively transforms 

Pennsylvania’s now-invalid mandatory sentencing schemes into a sentencing 

cap, beyond which the trial courts of this Commonwealth will be reluctant to 

tread. As I am unable to agree with the Majority’s analysis and conclusion, I 

must respectfully dissent.

My initial point of departure from the Majority’s analysis involves its 

election to review this case as one involving a challenge to the legality of 

Garcia’s sentence. I agree with the Majority that, in general, issues 
J-S14006-15

- 2 -

pertaining to Alleyne v. United States, 133 S.Ct. 2151 (2013) relate to the 

legality of a sentence. See Commonwealth v. Cardwell, 105 A.3d 748, 

750 (Pa. Super. 2014). As such, those issues ordinarily involve questions of 

law over which our standard of review is de novo and our scope of review is 

plenary. Id. 

My concern arises from how we should weigh Garcia’s appellate issues 

against the precise factual and procedural history of this case. The trial 

court stated that it did not impose a mandatory minimum sentence under 

§ 7508. Indeed, the transcript of Garcia’s sentencing hearing fully supports 

this assertion: not once during that proceeding did the trial court even 

mention § 7508 or the application of that provision to the facts herein. 

Instead, the trial court imposed a lengthier term of incarceration based 

exclusively upon Garcia’s criminal history and lack of remorse. For reasons 

that I shall discuss in greater detail below, I cannot agree that the trial court 

assessed a sentence that it lacked the authority to impose. The challenged 

sentence did not exceed the statutory maximum. Moreover, it is important 

to note that the trial court sentenced Garcia on June 4, 2013, 13 days 

before the United States issued its decision in Alleyne. Thus, § 7508 

remained a constitutionally valid sentencing provision when the court set 
J-S14006-15

- 3 -

Garcia’s punishment.1 Since Garcia’s penalty fell within statutory limits and, 

more importantly, since the trial court expressly stated that it did not rely on 

§ 7508 in fashioning Garcia’s sentence, I read Garcia’s appellate issues as 

asking only whether the sentencing court abused its discretion when setting 

Garcia’s punishment. Thus, I would review this case under a more 

deferential, abuse of discretion standard.2 Applying such a standard, I 

would uphold Garcia’s sentence.

____________________________________________

1

Indeed, at sentencing, it was defense counsel who specifically requested 

application of the three to six year mandatory minimum sentence set forth in 

§ 7508. See N.T., 6/4/13, at 6-7. 

2 Under Pennsylvania law, an illegal sentence is one that the trial court lacks 

statutory authority to impose. See Commonwealth v. Mears, 972 A.2d 

1210, 1211 n.1 (Pa. Super. 2009). When the trial court issued its judgment 

of sentence on June 4, 2013, it undoubtedly possessed the authority to 

order Garcia to serve four to eight years in prison, followed by three years’ 

probation, for his crimes. The Majority does not hold otherwise and, 

notwithstanding Alleyne and its progeny within this Commonwealth, the 

trial court still retains the discretionary authority to order such a 

punishment. My learned colleagues do not question the trial court’s 

authority to impose the sentence that it did; they merely scrutinize the 

propriety of an alleged component of the trial court’s sentencing 

determination. In view of these circumstances, I must conclude that this 

case calls for a discretionary sentencing analysis. See Commonwealth v. 

Chase, 530 A.2d 458, 460 (Pa. Super. 1987) (where sentence was 

undeniably within legal limits imposed by the legislature and appellant's only 

contention was that the court considered an improper factor, consideration 

of improper factor did not make sentence illegal and appeal challenged only 

discretionary aspects of appellant's sentence).
J-S14006-15

- 4 -

In Commonwealth v. Sheller, 961 A.2d 187 (Pa. Super. 2008), this 

Court set forth the standard for reviewing a claim challenging a discretionary 

aspect of sentencing.3 In that case, we stated:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

When imposing a sentence, the sentencing court is required to 

consider the sentence ranges set forth in the Sentencing 

Guidelines, but it [is] not bound by the Sentencing Guidelines. 

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007) 

(“It is well established that the Sentencing Guidelines are purely 

advisory in nature.”); Commonwealth v. Walls, 926 A.2d 957, 

965 (Pa. 2007) (referring to the Sentencing Guidelines as 

“advisory guideposts” which “recommend ... rather than require 

a particular sentence”). The court may deviate from the 

recommended guidelines; they are “merely one factor among 

many that the court must consider in imposing a sentence.” 

Yuhasz, 923 A.2d at 1118. A court may depart from the 

guidelines “if necessary, to fashion a sentence which takes into 

account the protection of the public, the rehabilitative needs of 

the defendant, and the gravity of the particular offense as it 

relates to the impact on the life of the victim and the 

community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. 

Super. 2001). When a court chooses to depart from the 

guidelines however, it must “demonstrate on the record, as a 

proper starting point, [its] awareness of the sentencing 

____________________________________________

3 Although our case law requires that discretionary sentencing challenges be 

preserved through a post-sentence motion and the inclusion of a substantial 

question in a concise statement filed under Pa.R.A.P. 2119(f), Sheller, 

supra, I shall forego a discussion of issue preservation in the interest of 

brevity. 
J-S14006-15

- 5 -

guidelines.” Eby, 784 A.2d at 206. Further, the court must 

“provide a contemporaneous written statement of the reason or 

reasons for the deviation from the guidelines.” 42 Pa.C.S.A. 

§ 9721(b).

When reviewing a sentence outside of the guideline range, the 

essential question is whether the sentence imposed was 

reasonable. [Walls, 926 A.2d at 962]. An appellate court must 

vacate and remand a case where it finds that “the sentencing 

court sentenced outside the sentencing guidelines and the 

sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In 

making a reasonableness determination, a court should consider 

four factors:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable 

if it fails to properly account for these four statutory factors. A 

sentence may also be found unreasonable if the “sentence was 

imposed without express or implicit consideration by the 

sentencing court of the general standards applicable to 

sentencing.” Walls, 926 A.2d at 964. These general standards 

mandate that a sentencing court impose a sentence “consistent 

with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the 

community, and the rehabilitative needs of the defendant.” 42 

Pa.C.S.A. § 9721(b).

Sheller, 961 A.2d at 190-191.

In the instant case, the sentencing court, with the benefit of a presentence investigation report, a mental health report, and an investigation of 

Garcia’s criminal history, sentenced Garcia to four to eight years’ 

imprisonment, which exceeded the aggravated range. The court explained 
J-S14006-15

- 6 -

that it enhanced Garcia’s punishment because of his criminal history and his 

complete lack of remorse. As the Majority notes, the trial court never 

mentioned at Garcia’s sentencing hearing that it relied on § 7508 to impose 

its sentence in this case. See Majority Memorandum at 7 (“trial court did 

not specify that it was utilizing the mandatory minimum sentence contained 

in section 7508(a)(2)(i) in fashioning Garcia’s sentence”). Moreover, it is 

clear from the court's statements that it considered all of the requisite 

factors, including the nature and circumstances of the offense, the 

recommended guideline range, protection of the public, the gravity of the 

offense, and the rehabilitative needs of the defendant, when imposing the 

sentence challenged in this appeal. See 42 Pa.C.S.A. §§ 9781(d) and 

9721(b). Further, the sentencing court had a pre-sentence investigation 

report at the time of sentencing and clearly had an opportunity to review 

Garcia’s history and consider his demeanor and characteristics. Thus, the 

record confirms that the trial court did not abuse its discretion.

The learned Majority states that it is relying upon the record to 

substantiate its contention that the trial court utilized § 7508 in fashioning 

Garcia’s sentence. I must respectfully disagree that the record supports this 

conclusion, given that the trial court never mentioned § 7508 when fixing 

Garcia’s punishment. The Majority correctly notes that the trial court denied 

Garcia’s pre-trial motion to preclude consideration of § 7508 at sentencing. 

However, since the trial court denied Garcia’s motion before Alleyne was 
J-S14006-15

- 7 -

issued, its decision was legally correct. I do not believe that the trial court’s 

correct disposition of a pre-trial motion supports a finding that the trial court 

imposed an illegal sentence. The learned Majority also observes that the 

parties “operat[ed] under the assumption [at sentencing] that the 

mandatory sentence was in play.” Majority Memorandum at 7. Again, since 

the trial court sentenced Garcia before Alleyne was issued, there is little 

doubt that this was true. Nevertheless, this says nothing about whether 

§ 7508 impermissibly influenced the trial court’s sentencing determination.

The Majority next suggests that, “Garcia’s sentence would have been 

illegal if the trial court had not sentenced Garcia pursuant to section 

7508[.]” Majority Memorandum at 8 (emphasis omitted). The Majority’s 

assertion that the trial court sentenced Garcia pursuant to § 7508 stands in 

stark contrast to its immediately prior observation that the “trial court did 

not specify that it was utilizing the mandatory minimum sentence 

contained in section 7508(a)(2)(i) in fashioning Garcia’s sentence[.]” 

Majority Memorandum at 7 (emphasis added). This inherent tension in the 

positions advanced by the Majority leads me to conclude that the only link 

between § 7508 and the sentence imposed in this case emerges from the 

inferences drawn by the Majority itself. It cannot be both ways, however. If 

the trial court sentenced Garcia pursuant to § 7508, then it would have said 
J-S14006-15

- 8 -

so.4 Yet, as the Majority observes, it did not. Instead, the sentencing 

transcript makes clear that Garcia’s extensive criminal history and 

remorseless attitude led the court to impose a harsher sentence. Nothing in 

Alleyne forbids this. Alleyne simply held that all factors supporting the 

application of a mandatory minimum sentence had to be determined by a 

jury beyond a reasonable doubt. Alleyne did not consider, much less 

invalidate, a sentencing court’s inherent discretionary authority to enhance 

punishment based upon factors such as a defendant’s criminal history or 

remorseless demeanor. Equally important, no Pennsylvania decision issued 

in the wake of Alleyne has so held. Since there is no basis in the record to 

____________________________________________

4 Although I take the trial court at its word that it did not rely on § 7508 in 

fixing Garcia’s sentence, I do not do so in a vacuum. Since the trial court 

sentenced Garcia 13 days before the issuance of Alleyne, it had no reason 

to “hide the ball” with respect to any alleged reliance on § 7508. My review 

of the transcript of Garcia’s sentencing hearing confirms, however, that the 

court never mentioned § 7508 at sentencing.

The Majority sees the issue differently. Because Garcia’s sentence exceeds 

the mandatory minimum, the Majority concludes that the trial court relied, 

at least in part, on § 7508. Hence, the Majority finds improper reliance upon 

§ 7508 from the trial court’s pre-trial rulings, the respective contemplation 

of the parties, and the court’s Rule 1925(a) opinion. However, reference to 

the transcript of Garcia’s sentencing hearing is absent from the Majority’s 

substantive analysis.

Because a sentencing transcript offers the most probative information 

regarding what has led a trial court to impose a particular sentence, I 

believe that the most reasonable inference to draw in this case is that the 

sentencing court did not rely on § 7508 in fixing Garcia’s punishment.
J-S14006-15

- 9 -

assert that Garcia received a mandatory minimum sentence under § 7508,5

or that the trial court considered any other impermissible factor6in imposing 

its sentence, I would not hold that Garcia’s sentence was unlawful.

Lastly, the Majority maintains that Garcia’s stipulation at trial to the 

weight of seized contraband is not grounds to distinguish this case from 

Alleyne. In advancing this view, the Majority points to this Court’s 

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc), Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), 

and Cardwell, supra. While I agree that these decisions foreclose any 

possibility of distinguishing this case from Alleyne because of Garcia’s 

stipulation at trial, I do not believe that these decisions furnish a basis for 

relief. In its Rule 1925(a) opinion, the court referred to Garcia’s trial 

stipulation in an attempt to distinguish Alleyne. We should recall, however, 

that the trial court issued its opinion on June 13, 2014, months before our 

decisions in the above-cited cases. Our decision in Newman was issued on 

August 20, 2014, Valentine was filed on October 3, 2014, and Cardwell

was issued on November 25, 2014. Thus, although the trial court’s legal 

____________________________________________

5 Since Garcia did not receive a mandatory minimum sentence under 

§ 7508, I would distinguish the case law applying Alleyne to matters 

pending on direct appeal.

6 A defendant’s criminal history does not trigger the constitutional 

protections described in Alleyne.
J-S14006-15

- 10 -

conclusions (in its Rule 1925(a) opinion) with respect to Garcia’s stipulation 

ultimately proved incorrect, these determinations were not necessarily 

erroneous when they were initially made. More significantly, the trial court’s 

analysis of this issue represented merely an alternative to its dispositive and 

unrefuted position that it did not consider § 7508 in imposing Garcia’s 

sentence.

In sum, the learned Majority holds as a matter of law that the trial 

court imposed an illegal sentence because it used the mandatory sentencing 

provision found at § 7508 in determining Garcia’s sentence. To reach its 

conclusion, the Majority examines this case as a challenge to the legality of 

Garcia’s sentence. I would hold that, because § 7508 is alleged only to have 

influenced the trial court’s imposition of a statutorily authorized punishment, 

the issue in this case implicates discretionary review. Under a deferential 

standard, I would find no abuse of the trial court’s discretion. At Garcia’s 

sentencing hearing, the court never mentioned § 7508 in assessing the 

penalty that it imposed. Instead, the court focused exclusively on Garcia’s 

persistent involvement in criminal activity and his lack of remorse for his 

actions. Even if other parts of the record contained references to § 7508, of 

which the trial court was undoubtedly aware, this does not establish that 

§ 7508 influenced the trial court’s sentencing determination where Garcia’s 

sentencing transcript so overwhelmingly demonstrates that the trial court 

concentrated on other, entirely proper, factors in imposing a reasonable 
J-S14006-15

- 11 -

punishment. I also do not believe that the trial court’s legal rulings support 

the learned Majority’s position and I am reluctant to criticize the trial judge’s 

rulings in hindsight. For each of these reasons, I respectfully dissent.