J. S15040/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ALEXANDER DIAZ, : No. 2505 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, April 25, 2012,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0000992-2011

BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2017

Alexander Diaz appeals from the judgment of sentence of April 25, 

2012, following reinstatement of his direct appeal rights nunc pro tunc. 

We vacate the judgment of sentence and remand for resentencing.

The trial court summarized the history of this case as follows:

Appellant/Defendant was tried and convicted 

for possession with intent to deliver [(“PWID”)] 

heroin and related crimes, after the undercover 

purchase of heroin on September 23, 2010 in 

Chester, Delaware County, Commonwealth of 

Pennsylvania.[Footnote 1]

[Footnote 1] Two prior undercover heroin 

purchases occurred on September 17, 

2010 and September 21, 2010 involving 

the defendant’s co-defendant, Alexander 

Santo.

Appellant, Alexander Diaz, appeals from the 

judgment of sentence imposed on April 25, 2012, 
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following his conviction for [PWID], Conspiracy to 

delivery [] of heroin and possession of 

paraphernalia.[Footnote 2]

[Footnote 2] On December 8, 2011 the 

defendant was found guilty after a Jury 

Trial on the merits. Sentencing 

proceeded thereafter on April 25, 2012 

together with a Post-Sentence Rights 

colloquy. A counseled Motion to Modify 

and Reduce Sentence was filed 

thereafter on May 7, 2012 which was 

denied by order of court dated June 1, 

2012. No direct appeal was filed or 

preserved.

On September 26, 2012 a Pro Se

PCRA Petition was filed averring, 

inter alia, ineffectiveness for failure to 

file or preserve the defendant’s direct 

appeal rights.

After appointment of collateral 

counsel the defendant was granted leave 

and continuances to file multiple 

amendments to defendant’s PCRA 

Petition. There appearing [to be] no 

dispute the Defendant’s rights on direct 

appeal were not properly protected by 

trial counsel and thus extinguished, this 

court on July 28, 2014 granted the nunc 

pro tunc reinstatement of the 

Defendant’s right to direct appeal.

The Office of the Delaware County 

Public Defender[,] consistent with such 

time constraints [as] this court directed 

via its July 28, 2014[] order reinstating 

nunc pro tunc direct appellate rights[,] 

lodged on August 29, 2014[] an appeal 

notice from the Defendant’s sentencing 

judgment.
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On Appeal, Appellant challenges his convictions 

for lack of sufficient evidence. Appellant/Defendant 

also attacks his sentence contending the Trial Court 

impermissibly and unconstitutionally imposed a 

mandatory minimum sentence in violation of 

Alleyne v. United States, 133 S.Ct. 2151, 186 

L.Ed.2d 314 (2013).

Appellant proceeded to a two-day jury trial on 

December 7-8, 2010. Appellant was found guilty of 

the aforementioned charges. Subsequently, on 

April 25, 2012, with the benefit of a presentence 

investigation and report, this Court imposed the 

following sentence. On the PWID heroin conviction, 

this Court imposed a sentence of 48 months to 

96 months imprisonment with a 10 year consecutive 

probation for the criminal conspiracy conviction and 

an additional 1 year probation consecutive to the 

conspiracy conviction for the possession of 

paraphernalia conviction. (Sentencing, 4/25/12, 

pp. 54-62).

Trial court opinion, 6/28/16 at 1-2 (emphasis added and deleted).

On January 9, 2015, the trial court ordered appellant to file a concise 

statement of errors complained of on appeal within 21 days pursuant to 

Pa.R.A.P. 1925(b), and appellant timely complied on January 28, 2015. On 

June 28, 2016, the trial court filed a Rule 1925(a) opinion.1

Appellant has raised the following issue for this court’s review:

Whether the mandatory minimum sentence 

imposed in this matter on the charge of 

[PWID] is illegal and must be vacated since the 

statutory provisions utilized have been ruled 

unconstitutional[?]

 

1 The reasons for the nearly two-year delay between when appellant filed his 

notice of appeal on August 29, 2014, and receipt of the record in this court 

on July 1, 2016, are unclear.
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Appellant’s brief at 7 (capitalization deleted).2

Here, appellant was subject to a mandatory minimum sentence of 

2-4 years’ imprisonment for PWID under 18 Pa.C.S.A. § 6317 (drug-free 

school zones). (Trial court opinion, 6/28/16 at 5.) In Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015), our supreme court concluded that the 

United States Supreme Court’s decision in Alleyne rendered Section 6317 

unconstitutional in its entirety. See also Commonwealth v. Wolfe, 140 

A.3d 651, 653 (Pa. 2016) (“The effect of Alleyne’s new rule was to 

invalidate a range of Pennsylvania sentencing statutes predicating 

mandatory minimum penalties upon non-elemental facts and requiring such 

facts to be determined by a preponderance of the evidence at sentencing.”).

The Commonwealth argues that the trial court imposed a sentence of 

4-8 years, twice the mandatory minimum. (Commonwealth’s brief at 6.) 

Therefore, according to the Commonwealth, the 2-year mandatory did not 

affect appellant’s sentence. (Id. at 7.) However, the trial court specifically 

determined that Section 6317 applied. (Appellant’s brief at 14; trial court 

opinion, 6/28/16 at 5.) See Commonwealth v. Barnes, A.3d , 

2016 WL 7449232 at *5 (Pa. 2016) (rejecting the Commonwealth’s 

argument that the sentencing court was not without authority to enter the 

appellant’s sentence because it possessed separate discretionary authority 

 

2 Appellant’s sufficiency of the evidence claim has been abandoned on 

appeal.
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under which he could have received the same sentence). We vacate 

appellant’s judgment of sentence and remand to the trial court for 

resentencing without application of 18 Pa.C.S.A. § 6317.

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2017