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

v.

TERRY LEE LIPINSKI

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 358 WDA 2017 Appeal from the Judgment of Sentence December 3, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0008958

- 2013

BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E. JUDGMENT ORDER BY BOWES, J.: FILED JANUARY 22, 2018 Terry Lee Lipinski appeals from the aggregate judgment of sentence of forty to eighty years imposed following his convictions for twenty

- three sexual crimes, including, inter alia , rape a nd involunta ry deviate sexual
intercourse. Appellant ’s sole claim on appeal challenges the legality of his mandatory minimum sentences imposed at six of these counts . We agree that his sentence is illegal , and we therefore vaca te and remand for
resentenc ing. The Commonwealth sought application of mandatory minimum sentences pursuant to 42 Pa.C.S. § 9781, for three counts of r ape, and three counts of involuntary deviate sexual intercourse. That sentencing statute reads, in pertinent part:J

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(a) Mandatory sentence. -- (1) A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:

. . . . 18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating to r ape)

-

- not less than ten years. 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)

-- not less than ten years.

. . . . 42 Pa.C.S. § 9718

. However, § 9718 (c) provides that the court “shall determine, by a preponderance of the evidence, if this section is applicable.”
42 Pa.C.S. § 9718 (c). The trial court imposed six mandatory sentences pursuant to that statute. Following sentencing, our Supreme Court decided Commonwealth v. Wolfe , 140 A.3d 651 (Pa. 2016), and affirmed our sua sponte determination that 42 Pa.C.S. § 9718(a)(1) was facially unconstitutional
under Alleyne v. United States , 570 U.S. 99 (2013) (any fact that, by law, increases the penalty for a crime must be treated as an element of the offense, and found beyond a reasonable doubt by a jury). 1 Therein,

_________________ __________ ______ ____ _______ 1 Appellant’s direct appeal rights were reinstated following a timely PCRA petition.J

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Matthew Wolfe was convicted of, inter alia , two counts of involuntary deviate sexual intercourse. As an element of th at crime, the Commonwealth was required t o prove that the victim was under sixteen years of age. Id . at 653. Wolfe was then sentenced to the mandatory sentence set forth at § 9718(a)(1), which stated , “A person convicted of [ involuntary deviate sexual intercourse] when the victim is less than 1 6 years of age shall be sentenced
to a man datory term of imprisonment[.]” Therefore, no “additional” fact
needed to be determined by the trial court for imposition of the mandatory sentence, since the jury had necessarily determined that the victim was

un der sixteen in rendering a verdict of guilty at the underlying offense

. Wolfe nevertheless concluded that the statute was unconstitutional,
since the trial court was required to make a factual determination notwithstanding the jury’s verdict. “[T]he sentencing court was bound to make its own determination at sentencing, see 42 Pa.C.S. § 9718(c), but it
could not do so in a manner consistent with the Sixth Amendment to the United States Constitution, on account of Alleyne .” Furthermore, Wolfe
held tha t the statute was “unconstitutional on its own non

- severable terms” and therefore rejected the notion tha t the error was harmless in light of the jury’s verdict. The trial court, while recognizing Wolfe , maintains that Appellant’s
claim is meritless as hi s circumstances are distinguishable. The trial court, citing a case from this Court that predates Wolfe , state d that “ the factorJ

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which gave rise to the mandatory minimum sentence was an element of the offense” and therefore the jury had already made the requisite finding beyond a reasonable doubt. However, the same was true in Wolfe , and as a result Appellant is serving an illegal sentence. Since vacating these sentences would upset the sentencing scheme, w e remand for resentencing without application o f the mandatory minimums. Judgment of sentence vacated. Case remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/22/2018