J-S21035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

TROY GIBSON,

Appellee No. 2675 EDA 2014

Appeal from the Judgment of Sentence September 2, 2014

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0002594-2014

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 06, 2015

The Commonwealth appeals from the judgment of sentence imposed 

after Appellee, Troy Gibson, pleaded guilty pursuant to an open plea to three 

counts of criminal conspiracy and one count each of knowing and 

intentional/simple possession of a controlled substance, possession with 

intent to deliver a controlled substance (PWID), and possession of drug 

paraphernalia.1 We affirm.

On September 2, 2014, Appellee pleaded guilty to the above crimes 

and stipulated that he possessed 2.09 grams of heroin with the intent to 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 903 and 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), 

respectively.
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distribute. The Commonwealth requested that the court impose the 

mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i) on 

the charge of PWID. The trial court denied the Commonwealth’s request 

pursuant to this Court’s holding in Commonwealth v. Newman, 99 A.3d 

86 (Pa. Super. 2014) (en banc). (See N.T. Guilty Plea and Sentencing, 

9/02/14, at 12). It sentenced Appellee to a standard range term of not less 

than eight nor more than sixteen months’ incarceration on the charge of 

PWID, and to concurrent terms of not less than eight nor more than sixteen 

months’ incarceration on the charge of conspiracy to commit PWID, and not 

less than six nor more than twelve months’ incarceration on the charge of 

possession of drug paraphernalia.2 (See id. at 12-14). The Commonwealth 

timely appealed.3

The Commonwealth raises one question for our review: “Did the trial 

court erroneously fail to apply the two-year mandatory minimum for 

commission of [the] offense [of PWID]?” (Commonwealth’s Brief, at 5). 

Specifically, the Commonwealth claims that, because Appellee waived his 

right to a jury trial when he entered a guilty plea, and admitted to 

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2

The conviction for knowing and intentional possession merged for 

sentencing purposes.

3

Pursuant to the court’s order, the Commonwealth filed a timely Rule 

1925(b) statement of errors complained of on appeal on October 6, 2014. 

See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 31, 2014. 

See Pa.R.A.P. 1925(a).
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possessing more than two grams of heroin with the intent to distribute, the 

“[i]mposition of the mandatory sentence did not implicate the Sixth 

Amendment jury trial right established in Alleyne [v. United States, 133 S. 

Ct. 2151 (2013).]” (Id. at 7). The Commonwealth’s issue does not merit 

relief.

At the outset, we note that issues pertaining to Alleyne go 

directly to the legality of the sentence. . . . An illegal sentence 

must be vacated. Issues relating to the legality of a sentence 

are questions of law[.] . . . Our standard of review over such 

questions is de novo and our scope of review is plenary.

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citations 

and quotation marks omitted).

Here, the trial court denied the Commonwealth’s request that it 

sentence Appellee pursuant to the mandatory minimum provided by 18 

Pa.C.S.A. § 7508, which provides, in pertinent part:

(a) General rule.─Notwithstanding any other provisions of this 

or any other act to the contrary, the following provisions shall 

apply:

* * *

(7) A person who is convicted of violating section 

13(a)(14), (30) or (37) of The Controlled Substance, Drug, 

Device and Cosmetic Act where the controlled substance or a 

mixture containing it is heroin shall, upon conviction, be 

sentenced as set forth in this paragraph:

(i) when the aggregate weight of the compound or 

mixture containing the heroin involved is at least 1.0 

gram but less than 5.0 grams the sentence shall be a 

mandatory minimum term of two years in prison and 

a fine of $5,000 . . . .
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* * *

(b) Proof of sentencing.─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.

18 Pa.C.S.A. § 7508(a)(7)(i) and (b).

However, 

[a] panel of this Court recently held that our en banc opinion in 

[Newman, supra,] and the panel decision in Commonwealth 

v. Valentine, 101 A.3d 801 (Pa. Super 2014) mandate that we 

hold 18 Pa.C.S.A. § 7508 unconstitutional in its entirety. Thus, a 

mandatory minimum sentence imposed under this statute is 

illegal. [] Fennell, [supra at] 15-20[].

Commonwealth v. Vargas, 2014 WL 7447678, at *17 (Pa. Super. filed 

Dec. 31, 2014) (en banc).

Specifically, in Fennell:

[The defendant] stipulated to laboratory reports that, at a 

minimum, suggest that the total weight of the heroin was 2.035 

grams. As a result, the trial court concluded that the 

Commonwealth did prove this element to the trial court beyond 

a reasonable doubt, as required by Alleyne . . . . However, the 

trial court’s opinion reveals that this conclusion was solely 

premised on its belief that Section 7508(b), which permits the 

trial court to find the necessary elements by a preponderance of 

the evidence, was severable from the rest of the statute. 

Pursuant to this Court’s decision in Newman, this conclusion 

was not correct. 
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Furthermore, we see no meaningful difference, for the 

purposes of Newman and Valentine, between submitting the 

element to the jury and accepting a stipulation from a 

defendant. They both have the purpose of finding a method to 

impose a mandatory minimum sentence outside the statutory 

framework, but consistent with Alleyne. However, both 

Newman and Valentine unequivocally state that creating a 

new procedure in an effort to impose a mandatory minimum 

sentence is solely within the province of the legislature. While 

submission to a jury is a more formal and involved procedure, 

we decline to fracture Newman and Valentine further by 

concluding that when read together, they only prohibit formal 

mandatory minimum procedures, but permit informal ones. 

Based on these considerations, we conclude that the trial court 

erred in imposing the mandatory minimum sentence in this case.

Fennell, supra at 20 (citations omitted).

Here, Appellee pleaded guilty and stipulated to possessing over two 

grams of heroin. (See N.T. Guilty Plea, 9/02/14, at 5). Although Fennell 

submitted to a bench trial, see Fennell, supra at 15, this difference in 

procedural posture does not affect our analysis. In fact, any sentence 

imposed pursuant to section 7508 is illegal because the statute is 

unconstitutional. See Vargas, supra at *17. Allowing the imposition of a 

mandatory minimum sentence pursuant to section 7508 on the basis that 

Appellee has pleaded guilty would impermissibly “[create] a new procedure 

in an effort to impose a mandatory minimum sentence[, which] is solely 

within the province of the legislature.” Fennell, supra at 20. 

Accordingly, we conclude that the trial court properly denied the 

Commonwealth’s request that it impose the mandatory minimum provision 

of section 7508, and instead sentenced Appellee in accordance with the 
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sentencing guidelines. (See N.T. Guilty Plea and Sentencing, 9/02/14, at 

12-14); see also Vargas, supra at *17; Fennell, supra at 20. The 

Commonwealth’s issue lacks merit.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015

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4 We decline the Commonwealth’s invitation to reverse Appellee’s judgment 

of sentence, and to, in effect overrule our prior decisions “holding that 

mandatory minimum sentences are unconstitutional.” (Commonwealth’s 

Brief, at 11; see id. at 11-15). These cases remain binding precedent that 

we are bound to follow. See Commonwealth v. Reed, 107 A.3d 137, 143 

(Pa. Super. 2014) (“This Court is bound by existing precedent under the 

doctrine of stare decisis and continues to follow controlling precedent as long 

as the decision has not been overturned by our Supreme Court.”) (citation 

and footnote omitted).