J-S12020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ENECA WILLIAMS,

Appellant No. 859 EDA 2014

Appeal from the Judgment of Sentence February 18, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004607-2013

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015

Appellant, Eneca Williams, appeals from the judgment of sentence 

entered on February 18, 2014, in the Delaware County Court of Common 

Pleas. We affirm.

Following a jury trial, Appellant was found guilty of driving under the 

influence (“DUI”), second offense, and driving while operating privileges 

were suspended, DUI related. On February 18, 2014, the trial court 

imposed a sentence of nine to twenty-three months of incarceration, 

followed by three years of probation on the DUI conviction, and a concurrent 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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term of sixty days of incarceration on the driving while operating privileges 

were suspended charge.1 

Appellant filed a timely notice of appeal, and the trial court directed 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). Appellant complied and raised one issue: 

“The Trial Court made unduly prejudicial statements to the jury suggesting 

that the failure to reach a unanimous verdict would cause a financial burden 

to Delaware County.” Appellant’s Concise Statement of Errors Complained 

of on Appeal, 4/10/14 (full italicization omitted). However, on appeal, 

Appellant has abandoned this issue and instead purports to present a 

challenge to the legality of his sentence involving the application of a 

mandatory minimum sentence. Appellant’s Brief at 11. Appellant’s 

argument is premised on this Court’s decisions in Commonwealth v. 

Newman, 99 A.3d 86 (Pa. Super. 2014), and Commonwealth v. 

Valentine, 101 A.3d 801 (Pa. Super. 2014), which applied the United States 

Supreme Court’s holding from Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151 (2013).

____________________________________________

1 While flat sentences are generally not permitted in Pennsylvania, 

Appellant’s flat sentence of sixty days is permissible pursuant to 75 Pa.C.S. 

§ 1543(b)(1). See Commonwealth v. Klingensmith, 650 A.2d 444 (Pa. 

Super. 1994) (stating that 75 Pa.C.S. § 1543(b) implicitly created an 

exception to the minimum/maximum sentencing requirements of 42 Pa.C.S. 

§ 9756(b) by specifically authorizing a trial court to impose a flat sentence 

for driving with a suspended license when the license was suspended as a 

result of a prior DUI conviction).
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As a general rule, where an appellant is directed to comply with 

Pa.R.A.P. 1925(b), any issues not raised in a timely filed concise statement 

of errors complained of on appeal will be deemed waived. Commonwealth 

v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. 

Lord, 719 A.2d 306, 309 (Pa. 1998)). However, issues concerning the 

legality of one’s sentence can, in some instances, be raised for the first time 

on appeal. “Generally, a challenge to the application of a mandatory 

minimum sentence is a non-waiveable challenge to the legality of the 

sentence.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) 

(citation and quotation marks omitted). 

Because we conclude that Appellant has presented a non-waiveable 

challenge to the legality of his sentence, we shall address the issue 

presented. We note that issues challenging the legality of a sentence are 

questions of law, and our standard of review over such questions is de novo

and our scope of review is plenary. Akbar, 91 A.3d at 238.

As noted above, Appellant argues that the decisions in Newman and 

Valentine, which apply the Alleyne holding, afford him relief. We disagree. 

In Alleyne, the United States Supreme Court held that facts which increase 

a mandatory minimum sentence must be submitted to the jury and must be 

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Both 

Newman and Valentine dealt with mandatory minimum sentences 

resulting from findings that were determined to be elements of the offense 
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itself; therefore, the Supreme Court’s pronouncement in Alleyne mandated 

those determinations to be submitted to the jury as required by Apprendi 

v. New Jersey, 530 U.S. 466 (2000). Newman, 99 A.3d at 97; 

Valentine, 101 A.3d at 804.2 

However, in the case at bar, the fact supporting the mandatory 

minimum, a prior DUI conviction, is not an element of the current offense. 

Thus, the instant matter is readily distinguishable from the mandatory 

minimum sentences struck down in Newman and Valentine.

Furthermore, Apprendi explicitly distinguished the bases for an 

increase in a sentence, and noted that prior convictions were excepted from 

its mandate. See Apprendi, 530 U.S. at 490 (“Other than the fact of a 

prior conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.”).

3

 Here, it is undisputed that the increase in 

Appellant’s minimum sentence was due to his prior DUI conviction.4 

____________________________________________

2 While Valentine does not specifically cite Apprendi, its analysis cites to 

Alleyne and its application of Apprendi. See Alleyne, 133 S.Ct. at 2155.

3 We are cognizant that this area of our jurisprudence has indeed been called 

into question. Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 

2014). However, we are bound by stare decisis to adhere to the law in its 

current state.

4 We also note that after a request by Appellant’s counsel, the trial court, in 

an abundance of caution, placed the issue of Appellant’s prior conviction 

before the jury. N.T., Trial, 1/30/14, at 15. Following deliberations which 

(Footnote Continued Next Page)
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Therefore, neither Newman, Valentine, Alleyne, nor Apprendi, affords 

Appellant relief. Accordingly, because Appellant’s mandatory minimum 

sentence is not illegal, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Bowes Joins the memorandum.

Justice Fitzgerald Notes Dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015

(Footnote Continued) _______________________

were held separately from those that resulted in the guilty verdict on the 

charges of DUI and driving while operating privileges were suspended, the 

jury specifically determined, beyond a reasonable doubt, that Appellant had 

a prior DUI conviction. Id. at 19.