J-S67013-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROY M. HOGAN,

Appellant No. 847 MDA 2015

Appeal from the Judgment of Sentence January 30, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005616-2012

BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2016

Roy M. Hogan appeals nunc pro tunc from the January 30, 2014 

judgment of sentence of five to ten years imprisonment. Appellant’s crimes 

implicated application of a mandatory minimum sentence that has been 

declared unconstitutional. Nevertheless, since the mandatory minimum 

sentence applicable herein did not affect the sentence actually imposed, we 

affirm. 

On January 30, 2014, a jury found Appellant guilty of various drugrelated offenses based upon the following proof. Criminal Investigator Jose 

Martinez testified that he was employed by the Berks County Police 

Department in an undercover police capacity. His duties were to “go out in 

the street” and “meet potential targets that are dealing drugs and purchase 
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drugs from these individuals.” N.T. Trial, 1/29-30/14, at 47. On August 23, 

2012, he was working in that capacity when another Criminal Investigator, 

Darren Smith, gave him Appellant’s picture. Investigator Smith, through the 

use of a confidential informant (“CI”), had already arranged for Investigator 

Martinez to purchase drugs at 133 South 6th Street, Reading. Investigator 

Martinez and the CI traveled to the noted location. 

Investigator Martinez and the CI entered the first floor hallway and 

encountered Appellant and Jose Torres-Perez. Speaking Spanish, 

Investigator Martinez asked Torres-Perez for two packages of drugs and 

handed him $20 in prerecorded money. Torres-Perez took the cash and told 

Appellant in English that Investigator Martinez wanted two packages. 

Torres-Perez gave Appellant the money, and Appellant gave Torres-Perez 

two clear plastic baggies containing crack cocaine, which Torres-Perez 

transferred to Investigator Martinez. The transaction was videotaped and 

that tape was shown to the jury with the image of the CI blurred so that he 

could not be identified. 

Investigator Smith testified that his department began an investigation 

of drug activity at 133 South 6th Street. He contacted the CI, who indicated

that he would be able to arrange to buy drugs from Appellant at that 

location. Investigator Smith then contacted Investigator Martinez to travel 

with the CI to purchase the drugs and videotape the transaction. 

Investigator Smith also testified that 133 South 6th Street was near two 
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schools. Berks County Detective Nicholas Bolognese told the jury that he 

measured the distance between 133 South 6th Street and the schools using 

special equipment and that the point of sale for the drugs was within 1,000 

feet of both establishments. 

The jury was specifically instructed to make a determination of 

whether 133 South 6th Street was within 1,000 feet of a school for purposes 

of application of 18 Pa.C.S. § 6317(a), which provides, in pertinent part, that 

a person convicted of possession of a controlled substance with intent to 

deliver (“PWID”) or delivery of a controlled substance must be sentenced to 

a mandatory minimum term of imprisonment of two years if the crime 

occurred within 1,000 feet of a public, private, or parochial school. 

On January 30, 2014, the jury found Appellant guilty of delivery of a 

controlled substance within 1,000 feet of a school, conspiracy to deliver a 

controlled substance, PWID within 1,000 of a school, conspiracy to commit 

PWID, possession of a controlled substance, and conspiracy to commit 

possession of a controlled substance. Appellant was sentenced that same 

day to five to ten years imprisonment. While the sentencing hearing was 

not transcribed, the trial court, the Commonwealth, and Appellant agree that 

18 Pa.C.S. § 6317(a) was applicable herein. 

There are two documents of record pertinent to sentencing. The first 

is a guideline sentencing from prepared for the PWID offenses. That form 

indicates that there was a mandatory minimum applicable to the crime and 
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that Appellant was a repeat felony offender and the offense gravity score 

was six. Thus, as the form clearly delineates, the guidelines called for a 

sentence that was at least the mandatory minimum, with a standard range 

sentence of twenty-seven to forty months, a mitigated range sentence of 

twenty-four months, and an aggravated range sentence of forty-six months. 

The Clerk of Courts of Berks County prepared a court commitment form that 

indicates the following. Appellant was sentenced on January 30, 2014, to 

five to ten years imprisonment for the PWID and probation on the conspiracy 

to commit PWID. The sentencing court determined that the remaining four 

offenses merged for sentencing purposes. 

Appellant did not file a direct appeal, but, on December 8, 2014, he 

filed a timely pro se PCRA petition. Counsel was appointed and filed an 

amended petition, averring, inter alia, that Appellant was entitled to 

reinstatement of his direct appeal rights given that he asked trial counsel to 

file a direct appeal and counsel failed to do so. On April 13, 2015, 

Appellant’s direct appeal rights were reinstated, and this appeal followed. 

Appellant raises this issue on appeal, “Did the trial court improperly impose 

a sentence that was excessive, unlawful and/or contrary to Alleyne v. 

United States, 133 S.Ct. 2151 (2013)?” Appellant’s brief at 4. We note 

that the trial court, in its Pa.R.A.P. 1925(b) opinion, concluded that the 

sentence was illegal and that this case “should be remanded to this Court for 

resentencing consistent with Alleyne.” Trial Court Opinion, 6/25/15, at 3. 
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Initially, we note that issues pertaining to imposition of a mandatory 

minimum sentence relate to the legality of sentence and cannot be waived. 

Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012). “Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Id. at 1130. In Alleyne, the United States Supreme Court held 

that any fact, other than a prior conviction, that triggers a mandatory 

minimum sentence must be proven beyond a reasonable doubt before the 

factfinder. Pursuant to this decision, many of Pennsylvania’s mandatory 

minimum sentencing statutes are infirm. See, e.g., Commonwealth v. 

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc); Commonwealth v. 

Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted, 121 A.3d 433 (Pa. 

2015). 

Most significantly, if a mandatory minimum statute outlines that its 

application shall be determined at sentencing by a sentencing court, then it 

is void in its entirety and a defendant cannot be sentenced pursuant to that 

statute. Section 6317 provides,

The provisions of this section shall not be an element of 

the crime. Notice of the applicability of this section to the 

defendant shall not be required prior to conviction, but 

reasonable notice of the Commonwealth's intention to proceed 

under this section shall be provided after conviction and before 

sentencing. The applicability of this section shall be determined 

at sentencing. The court shall consider evidence presented at 

trial, shall afford the Commonwealth and the defendant an 

opportunity to present necessary additional evidence and shall 

determine by a preponderance of the evidence if this section is 

applicable.
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18 Pa.C.S. § 6317(b). 

In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), our 

Supreme Court held that § 6317 was void in its entirety and could not be 

severed so as to permit a jury to determine whether a drug sale or PWID 

occurred within 1,000 feet of a school. See also Commonwealth v. 

Valentine, 101 A.3d 801 (Pa.Super. 2014) (striking down entire statute 

providing that facts necessary for application of mandatory minimum 

sentence found by sentencing court by a preponderance of the evidence and 

ruling that use of a special interrogatory on the verdict slip did not cure 

unconstitutionality of sentence even though jury found facts necessary for 

application of mandatory minimum beyond a reasonable doubt). 

The Commonwealth counters that Appellant is not entitled to relief in 

that he was sentenced to five to ten years imprisonment and cannot prove 

that his sentence was affected by imposition of the two-year mandatory 

minimum sentence. 

We agree with this position. The record establishes that Appellant’s 

sentence did not result from application of the mandatory minimum, which 

was only two years. Rather, Appellant was sentenced above the mandatory 

minimum as well as in excess of the guidelines ranges, perhaps due to his 

status as repeat felony offender, to the statutory maximum for PWID. Since 

Appellant was not sentenced based on the mandatory statute, his sentence 
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is not illegal. Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 

2015).1

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2016

____________________________________________

1 Appellant relies solely upon Alleyne and Hopkins, leveling no objection to 

the fact that it exceeded the recommended guideline ranges.