J-S72011-17

2018 PA Super 8

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTOINE MOTLEY,

Appellant No. 1940 EDA 2016

Appeal from the Judgment of Sentence Entered June 19, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003997-2007

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.: FILED JANUARY 19, 2018

Appellant, Antoine Motley, appeals nunc pro tunc from the judgment of 

sentence of an aggregate term of 15 to 30 years’ incarceration, followed by 

10 years’ probation, imposed after he was convicted of various offenses 

including robbery and carrying a firearm without a license. Appellant solely 

challenges the legality of his sentence. After careful review, we agree with 

Appellant that his sentence is illegal, albeit for a different reason than he 

posits herein. Accordingly, we vacate his judgment of sentence and remand 

for resentencing.

Briefly, Appellant and a cohort were arrested after they committed an 

armed robbery of two employees of the United States Postal Service. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Appellant was charged with various offenses and, following a jury trial in 

April of 2012, he was convicted of two counts of robbery (threatening

immediate serious bodily injury), 18 Pa.C.S. § 3701(a)(1)(ii); carrying a 

firearm without a license, 18 Pa.C.S. § 6106(a)(1); and possessing an 

instrument of crime (PIC), 18 Pa.C.S. § 907(a). On June 19, 2012, the court 

sentenced Appellant to consecutive terms of 71⁄2 to 15 years’ incarceration 

for his two robbery convictions, and two consecutive terms of 5 years’ 

probation for his PIC and firearm offenses. Therefore, Appellant’s aggregate 

sentence is 15 to 30 years’ incarceration, followed by 10 years’ probation. 

Appellant filed a timely direct appeal and this Court affirmed, deeming 

Appellant’s two issues waived based on his failure to develop any meaningful 

argument in support thereof. See Commonwealth v. Motley, No. 1750 

EDA 2012, unpublished memorandum at 2-3 (Pa. Super. filed Oct. 15, 

2013). Appellant did not file a petition for allowance of appeal with our 

Supreme Court.

Instead, on January 7, 2014, Appellant file a timely, pro se petition 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

Counsel was appointed and filed an amended petition on Appellant’s behalf,

seeking the restoration of his direct appeal rights. The PCRA court granted 

that petition, and Appellant filed the present, nunc pro tunc appeal from his 

judgment of sentence. Herein, he raises one issue for our review: “Whether 

Appel[l]ant’s sentence should be vacated because it is based upon an illegal 

mandatory minimum [sentence?]” Appellant’s Brief at 6.
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Appellant contends that he received two mandatory minimum 

sentences for his robbery convictions, and that those sentences are illegal in 

light of Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding 

that “facts that increase mandatory minimum sentences must be submitted 

to the jury” and found beyond a reasonable doubt). Based on the following

procedural history and legal authority, we disagree with both of Appellant’s 

arguments.

First, after Appellant’s conviction and prior to his sentencing hearing, 

the Commonwealth filed a notice of its intent to seek, for each of Appellant’s 

two robbery convictions, the imposition of a 10-year, mandatory minimum 

sentence as required by 42 Pa.C.S. § 9714 (Sentences for second and 

subsequent offenses). However, as the trial court acknowledges, it did not

orally impose those mandatory minimum terms of 10 years’ incarceration at 

the sentencing proceeding on June 19, 2012. See Trial Court Opinion, 

3/22/17, at 4. Instead, the court imposed a term of 71⁄2 to 15 years’ 

imprisonment for each of Appellant’s robbery convictions. See id. The 

court’s written sentencing order filed that same day also sets forth

consecutive sentences of 71⁄2 to 15 years’ incarceration for those crimes. 

Notwithstanding, Appellant now claims that he received mandatory 

minimum sentences for his robbery convictions. His argument rests on the 

fact that a court commitment form (“form DC-300B”) accompanying the 

written sentencing order has the “yes” box checked under the heading 

“Mandatory Sentence.” According to Appellant, form DC-300B constitutes
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the written sentencing order, and evinces that mandatory minimum 

sentences were applied in his case. He then cursorily states that those 

sentences are illegal under Alleyne. 

Appellant’s argument is wholly unconvincing. First, form DC-300B 

does not constitute part of the trial court’s sentencing order; rather, it is 

simply a document generated by the Common Pleas Criminal Court Case 

Management System that must be provided to the Department of 

Corrections (DOC) upon the commitment of an inmate. See 42 Pa.C.S. §

9764(a). The written sentencing order, signed by the trial judge, constitutes

the sentence imposed by the court. See Commonwealth v. Borrin, 80 

A.3d 1219, 1226 (Pa. 2013) (“In Pennsylvania, the text of the sentencing 

order ... is determinative of the court’s sentencing intentions and the 

sentence imposed.”) (citations omitted). Here, that sentencing order 

unequivocally demonstrates that Appellant did not receive a mandatory 

minimum of 10 years’ incarceration for either of his robbery convictions. 

See Sentencing Order, 6/19/12 (stating a sentence of “a Minimum Term of 7 

years and 6 months and a Maximum Term of 15 years” for both of 

Appellant’s robbery convictions).

Second, even if Appellant had received a mandatory minimum 

sentence under section 9714, he is incorrect that that provision is 

unconstitutional under Alleyne. Curiously, Appellant recognizes that 

mandatory minimum sentences predicated on prior convictions are an 

exception to the rule announced in Alleyne. See Appellant’s Brief at 9 
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(“Subsequent to [Alleyne,] the appellate courts in this Commonwealth have 

consistently held that, with the exception of mandatory minimum sentences 

predicated on prior offenses, all of Pennsylvania’s mandatory minimum 

sentencing provisions that require the sentencing court to ascertain the 

application of the mandatory minimum provisions are unconstitutional.”)

(emphasis added); see also Alleyne, 133 S.Ct. at 2160 n.1. As this Court 

has recognized, the mandatory minimum sentences set forth in section 9714 

are predicated on prior convictions and, thus, that provision is not 

unconstitutional under Alleyne. See Commonwealth v. Bragg, 133 A.3d 

328, 333 (Pa. Super. 2016) (recognizing that 42 Pa.C.S. § 9714 “is not 

unconstitutional under Alleyne as it provides for mandatory sentences 

based on prior convictions”), aff’d, 169 A.3d 1024 (Pa. 2017) (per curiam 

order). Thus, Appellant’s challenge to the legality of his sentence is 

meritless on this basis, as well.

The Commonwealth, however, presents a convincing argument that 

Appellant’s robbery sentences are illegal for a different reason. Specifically, 

the Commonwealth maintains that “the court imposed an illegal sentence by 

not applying [s]ection 9714 to [Appellant’s] robbery convictions.” 

Commonwealth’s Brief at 11 (emphasis in original).1 The Commonwealth 

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1 We recognize that the Commonwealth did not raise this sentencing claim 

before the trial court, nor exercise its statutory right to appeal from the trial 

court’s failure to apply the mandatory sentences. See 42 Pa.C.S. § 9714(f) 

(“If a sentencing court shall refuse to apply this section where applicable, 

(Footnote Continued Next Page)
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stresses that it “took all the necessary actions to invoke the mandatory 

minimum sentences[,]” including filing a notice of its intent to seek those 

sentences and “furnish[ing Appellant] with documentation for his prior 

robbery convictions,” which were “marked and moved ... into the record at 

the sentencing hearing.” Id. at 9 (citing N.T. 6/19/12, at 10-11). 

The record supports the Commonwealth’s argument that it adhered to 

the requirements for invoking application of section 9714. Accordingly, the 

trial court was statutorily required to determine, at Appellant’s sentencing 

hearing, whether section 9714 is applicable to Appellant and, if so, to impose

the mandatory terms of incarceration required by that provision. See 42 

Pa.C.S. § 9714(d) (discussing the requirements of the court for determining 

the applicability of section 9714(a) at the sentencing proceeding); 42 

Pa.C.S. § 9714(e) (stating that “[t]here shall be no authority in any court to 

impose on an offender to which this section is applicable any lesser sentence 

than provided for in subsections (a) and (a.1)”). Because the trial court did 

not adhere to the dictates of section 9714, Appellant’s sentences for his two 

(Footnote Continued) _______________________

the Commonwealth shall have the right to appellate review of the action of 

the sentencing court.”). However, our Supreme Court has held “that where 

a sentencing court is required to impose a mandatory minimum sentence, 

and that mandatory minimum sentence affects a trial court’s traditional 

sentencing authority or the General Assembly’s intent in fashioning 

punishment for criminal conduct, a defendant’s challenge thereto sounds in 

legality of sentence and is therefore nonwaivable.” Commonwealth v. 

Foster, 17 A.3d 332, 345 (Pa. 2011). We see no reason why this rule would 

not apply in the context of the Commonwealth’s challenge to the court’s 

failure to impose a mandatory sentence.
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robbery convictions are illegal and must be vacated. See Commonwealth 

v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (“If no statutory 

authorization exists for a particular sentence, that sentence is illegal and 

subject to correction. ... An illegal sentence must be vacated.”) (quoting 

Commonwealth v. Alexander, 811 A.2d 1064, 1065, 1066 (Pa. Super. 

2002)).2 As our disposition in this regard upsets the court’s overall 

sentencing scheme, we vacate Appellant’s judgment of sentence in its 

entirety, and remand for resentencing on all counts. See Commonwealth 

v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating that if our 

disposition upsets the overall sentencing scheme of the trial court, we must 

remand so that the court can restructure its sentence plan).

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

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2 Unfortunately for Appellant, our disposition will result in the trial court’s 

imposing lengthier sentences for his two robbery convictions, assuming that 

it finds section 9714(a) applicable to his case. However, the trial court 

clearly retains its discretion to craft a similar (or lesser) aggregate sentence

than that which it originally imposed, by running Appellant’s sentences 

concurrently rather than consecutively, and/or by imposing terms of 

incarceration for his other offenses. Regardless of whether outcome of 

Appellant’s resentencing ultimately benefits him, we must vacate his illegal 

sentences, as we have jurisdiction to do so. See Randal, 837 A.2d at 1214 

(citation omitted). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2018