J-S42017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DIANA CANAVIN

Appellant No. 1690 EDA 2014

Appeal from the Judgment of Sentence November 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009466-2012

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

JUDGMENT ORDER BY MUNDY, J.: FILED JULY 23, 2015

Appellant, Diana Canavin, appeals from the November 15, 2013 

aggregate judgment of sentence of five to ten years’ imprisonment, followed 

by three years’ probation, imposed after she was found guilty of one count 

each of robbery, aggravated assault, criminal conspiracy, theft by unlawful 

taking, and possession of an instrument of crime.1 After careful review, we 

vacate and remand for resentencing.

Appellant challenges the five-year mandatory minimum sentence she 

received under 42 Pa.C.S.A. § 9713. Appellant’s Brief at 5, 7-8. The trial 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2702(a)(1), 903(c), 3921(a), and 907(a), 

respectively.
J-S42017-15

- 2 -

court acknowledges it sentenced Appellant to the mandatory minimum 

pursuant Section 9713. Trial Court Opinion, 11/14/14, at 9.

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

this Court, applying Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014) (en banc), concluded that Section 9713 is facially unconstitutional. 

Id. at 811-812. Recently, our Supreme Court agreed with Newman and 

Valentine’s conclusions. See Commonwealth v. Hopkins, --- A.3d ---, 

2015 WL ------- (Pa. 2015) (slip op. at 2, 19, 22, 23) (concluding that 18 

Pa.C.S.A. § 6317 is facially unconstitutional because its various subsections 

could not be severed from each other under 1 Pa.C.S.A. § 1925). As Section 

9713 is unconstitutional on its face, there is no set of circumstances in which 

the statute can be constitutionally applied. United States v. Salerno, 481 

U.S. 739, 745 (1987); accord Commonwealth v. McKown, 79 A.3d 678, 

687 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014). Therefore, 

because the trial court applied a facially unconstitutional statute in 

sentencing Appellant, the resultant sentence is illegal.2 As our decision 

upsets the trial court’s sentencing scheme, we must vacate the entire 

judgment of sentence and remand for resentencing. See generally 

Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013).

____________________________________________

2

In light of our disposition, Appellant’s remaining challenge to the 

mandatory minimum sentence is moot.
J-S42017-15

- 3 -

Based on the foregoing, we conclude the trial court imposed an illegal 

sentence when it applied Section 9713 to Appellant. Accordingly, the trial 

court’s November 15, 2013 judgment of sentence is vacated, and the case is 

remanded for resentencing, without consideration of the mandatory 

minimum provisions, consistent with this judgment order.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/2015