J-S37022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES H. MILLS

Appellant No. 1803 MDA 2013

Appeal from the Judgment of Sentence entered September 10, 2013

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0001318-2013

BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014

James H. Mills appeals from the judgment of sentence entered for his 

guilty plea to robbery. Appellant argues that the trial court’s imposition of a 

mandatory minimum sentence is illegal under Alleyne v. United States, 

133 S. Ct. 2151 (2013). This case is controlled by this Court’s recent 

decision in Commonwealth v. Valentine, 2014 PA Super 220, 2014 WL 

4942256, 2014 Pa. Super. LEXIS 3420 (filed Oct. 2, 2014), which declared 

unconstitutional the mandatory minimum sentencing statute used in this 

case. Therefore, we are constrained to vacate and remand for resentencing. 

On January 23, 2013, Appellant approached a woman on a Harrisburg 

street and demanded money. When she told Appellant she had none, 

Appellant placed an object against her back, said it was a gun, and forced 

her toward an ATM machine. Two nearby off-duty police officers foiled 
J-S37022-14

- 2 -

Appellant’s plan. After a brief foot chase, the officers apprehended Appellant 

and discovered that his “gun” was a pair of wire snips. 

On September 10, 2013, Appellant pled guilty to one count of robbery, 

graded as a first-degree felony, 18 Pa.C.S.A. § 3701(a)(1)(ii). During the 

guilty plea colloquy, Appellant admitted that a mandatory five-year sentence 

applied because he committed a crime of violence while using a replica of a 

firearm that placed the victim in reasonable fear of death or serious bodily 

injury. See N.T., 9/10/13, at 4-7, 10. The trial court accepted the guilty 

plea, and sentenced Appellant to five to ten years in prison, applying the 

mandatory minimum sentence at 42 Pa.C.S.A. § 9712(a) requested by the 

Commonwealth. This appeal followed.

Appellant raises one issue for our review:

Whether the trial court erred in imposing a mandatory minimum 

sentence pursuant to 42 Pa.C.S.A. § 9712, since, under the 

United States Supreme Court’s ruling in Alleyne v. United 

States, 133 S. Ct. 2151 (2013), imposing a mandatory 

minimum sentence under 42 Pa.C.S.A. § 9712 is 

unconstitutional?

Appellant’s Brief at 4 (typeface altered). Although Appellant admitted to 

using wire snips to simulate a firearm, he argues that § 9712 is facially 

unconstitutional.1 We agree, as Valentine, supra, is directly on-point. 

____________________________________________

1 A challenge to the legality of a sentence is a question of law, which we 

review de novo. Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. 

Super. 2013).

(Footnote Continued Next Page)
J-S37022-14

- 3 -

Valentine applies Alleyne, in which the Supreme Court of the United 

States held: 

[a]ny fact that, by law, increases the penalty for a crime is an 

“element” that must be submitted to the jury and found beyond 

a reasonable doubt. Mandatory minimum sentences increase the 

penalty for a crime. It follows, then, that any fact that increases 

the mandatory minimum is an “element” that must be submitted 

to the jury.

Alleyne, 133 S. Ct. at 2155 (internal citation omitted). Alleyne is 

grounded in the Sixth Amendment right to a jury trial. Id. at 2163-64 

(holding that the use of judge-found facts violated the defendant’s Sixth 

Amendment rights). 

This Court has struggled to apply Alleyne, because many of 

Pennsylvania’s mandatory minimum sentencing statutes include language 

now found to be unconstitutional. See Commonwealth v. Watley, 81 A.3d 

108, 117 (Pa. Super. 2013) (en banc) (dicta) (“[Alleyne], therefore, 

renders those Pennsylvania mandatory minimum sentencing statutes that do 

not pertain to prior convictions constitutionally infirm insofar as they permit 

(Footnote Continued) _______________________

Appellant did not challenge the legality of his sentence before the trial 

court—even though his guilty plea and sentencing date occurred three 

months after Alleyne was decided. We must nevertheless address 

Appellant’s contention, because a challenge to the application of a 

mandatory minimum sentence—including a challenge under Alleyne—is a 

non-waivable challenge to the legality of the sentence. Commonwealth v. 

Thompson, 93 A.3d 478, 494 (Pa. Super. 2014). But cf. Commonwealth 

v. Johnson, 93 A.3d 806, 806 (Pa. 2014) (granting allocatur to consider, 

inter alia, “[w]hether challenge to a sentence pursuant to [Alleyne] 

implicates the legality of the sentence and is therefore non-waivable”).
J-S37022-14

- 4 -

a judge to automatically increase a defendant’s sentence based on a 

preponderance of the evidence standard.”) (footnote omitted). The 

sentencing statute in this case is an example:

(a) Mandatory sentence.--Except as provided under [42 

Pa.C.S.A. §] 9716 (relating to two or more mandatory minimum 

sentences applicable), any person who is convicted in any court 

of this Commonwealth of a crime of violence as defined in [id.

§] 9714(g) (relating to sentences for second and subsequent 

offenses), shall, if the person visibly possessed a firearm or a 

replica of a firearm, whether or not the firearm or replica was 

loaded or functional, that placed the victim in reasonable fear of 

death or serious bodily injury, during the commission of the 

offense, be sentenced to a minimum sentence of at least five 

years of total confinement notwithstanding any other provision 

of this title or other statute to the contrary. Such persons shall 

not be eligible for parole, probation, work release or furlough.

(b) Proof at sentencing.--Provisions of this section shall not 

be an element of the crime and notice thereof 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 any evidence presented at trial and shall 

afford the Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall determine, 

by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9712 (subsections (c)-(e) omitted). 

In Commonwealth v. Newman, 2014 PA Super 178, 2014 WL 

4088805, at *15, 2014 Pa. Super. LEXIS 2871, at *40 (filed Aug. 20, 2014) 

(en banc), we declared 42 Pa.C.S.A. § 9712.12 wholly unconstitutional. In 

____________________________________________

2 42 Pa.C.S.A. § 9712.1 required a five-year mandatory minimum sentence 

for drug trafficking crimes committed while in actual or constructive 

possession of a firearm in close proximity to the drugs.
J-S37022-14

- 5 -

Newman, we we found that the “enforcement arm” of the statute, 42 

Pa.C.S.A. § 9712.1(c), was inseparable from the “predicate arm,” 42 

Pa.C.S.A. § 9712.1(a), which delineated the facts triggering the mandatory 

sentence. Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super. LEXIS 

2871, at *31-33. Thus, because the inseparable enforcement arm violated 

Alleyne, we found the entire statute unconstitutional. Id., 2014 Pa. Super. 

LEXIS 2871, at *31-33.

Valentine extends Newman to the statute at issue here, 42 

Pa.C.S.A. § 9712, which has an identical “enforcement arm” as § 9712.1. 

Valentine, 2014 WL 4942256, at *7-8, 2014 Pa. Super. LEXIS 3420, at

*17-21. Moreover, Valentine rejects the harmless error analysis employed 

in Watley that saved the imposition of a mandatory sentence in that case. 

Id. at *9 n.4, 2014 Pa. Super. LEXIS 3420, at *23 n.9 (acknowledging 

Watley, but adhering “to our decision in Newman which concluded that the 

entirety of the mandatory minimum sentencing statute must be stricken as 

unconstitutional”).

In Valentine, the defendant received a five-year mandatory sentence 

because he robbed a woman at gunpoint on a city bus. Valentine, 2014 WL 

4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *2-3. At his trial, the jury, 

through special interrogatories, found the facts necessary to trigger 
J-S37022-14

- 6 -

application of 42 Pa.C.S.A. §§ 9712 and 9173.3 Valentine, 2014 WL 

4942256, at *1, 2014 Pa. Super. LEXIS 3420, at *3-4. Even though the jury

found beyond a reasonable doubt the triggering facts, we held that the 

mandatory sentences could not be applied. Rather, the statutes 

implementing the mandatory sentence were wholly unconstitutional:

Here, the trial court permitted the jury, on the verdict slip, to 

determine beyond a reasonable doubt whether Appellant 

possessed a firearm that placed the victim in fear of immediate 

serious bodily injury in the course of committing a theft for 

purposes of the mandatory minimum sentencing provisions of 42 

Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or 

in part at or near public transportation, for purposes of the 

mandatory minimum sentencing provisions of 42 Pa.C.S.A. 

§ 9713(a). The jury responded “yes” to both questions. In 

presenting those questions to the jury, however, we conclude, in 

accordance with Newman, that the trial court performed an 

impermissible legislative function by creating a new procedure in 

an effort to impose the mandatory minimum sentences in 

compliance with Alleyne.

The trial court erroneously presupposed that only Subsections 

(c) of both 9712 and 9713 (which permit a trial judge to 

enhance the sentence based on a preponderance of the evidence 

standard) were unconstitutional under Alleyne, and that 

Subsections (a) of 9712 and 9713 survived constitutional 

muster. By asking the jury to determine whether the factual 

prerequisites set forth in § 9712(a) and § 9713(a) had been 

met, the trial court effectively determined that the

unconstitutional provisions of § 9712(c) and § 9713(c) were 

severable. Our decision in Newman however holds that the 

unconstitutional provisions of § 9712(c) and § 9713(c) are not 

severable but “essentially and inseparably connected” and that 

____________________________________________

3 42 Pa.C.S.A. § 9713 required a five-year mandatory minimum sentence for 

crimes of violence committed in or near public transportation. Section 9713 

contains an identical “enforcement arm” as §§ 9712 and 9712.1.
J-S37022-14

- 7 -

the statutes are therefore unconstitutional as a whole. 

[Newman, 2014 WL 4088805, at *13-14, 2014 Pa. Super. 

LEXIS 2871, at *34-35]. (“If Subsection (a) is the predicate arm 

. . . then Subsection (c) is the enforcement arm. Without 

Subsection (c), there is no mechanism in place to determine 

whether the predicate of Subsection (a) has been met.”).

* * *

Because Alleyne and Newman render §§ 9712 and 9713 

unconstitutional, we vacate the judgment of sentence and 

remand for the re-imposition of sentence without consideration 

of any mandatory minimum sentence as provided by §§ 9712 

and 9713.

Id. at *8-9.

Valentine applies to Appellant’s case. First, it applies because 

Appellant’s judgment of sentence is not final, and the general rule is to apply 

the law in effect at the time of the appellate decision. Commonwealth v. 

Housman, 986 A.2d 822, 840 (Pa. 2009). Second, a statute declared 

unconstitutional is generally void ab initio. “An unconstitutional statute is 

ineffective for any purpose since its unconstitutionality dates from the time 

of its enactment and not merely from the date of the decision holding it so.” 

Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa. Super. 1996) 

(quoting Commonwealth v. Brown, 431 A.2d 905, 907-08 (Pa. 1981)); 

see also Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010) 

(vacating a conviction under 18 Pa.C.S.A. § 4119 (trademark 

counterfeiting), because the statute was declared unconstitutional after the 

date of conviction). 

Because § 9712 is void, there is no statutory authorization for the 

mandatory minimum sentence imposed here. “If no statutory authorization 
J-S37022-14

- 8 -

exists for a particular sentence, that sentence is illegal and subject to 

correction.” Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 

2013) (quotation omitted); see also Commonwealth v. Randal, 837 A.2d 

1211, 1214 (Pa. Super. 2003) (en banc) (concluding that a Supreme Court 

decision declaring unconstitutional ignition interlock law required vacation of 

defendant’s sentence, even though defendant was sentenced before 

declaration of unconstitutionality). We recognize that Appellant admitted the 

fact triggering § 9712 and conceded that it applied, but a defendant cannot 

agree to serve an illegal sentence. Commonwealth v. Gentry, --- A.3d ---

, 2014 PA Super 219 2014 WL 4942271, at *4, 2014 Pa. Super. LEXIS 3421, 

at *12 (filed Oct. 3, 2014) (“Our cases clearly state that a criminal 

defendant cannot agree to an illegal sentence, so the fact that the illegality 

was a term of his plea bargain is of no legal significance.”).

In light of Valentine, 42 Pa.C.S.A. § 9712 is void, and no statutory 

basis exists to sentence Appellant to a mandatory minimum of five years in 

prison. Accordingly, we vacate Appellant’s sentence and remand for 

resentencing without consideration of § 9712.

4

____________________________________________

4 The unconstitutionality of § 9712 does not affect the trial court’s discretion 

to impose any other lawful sentence. See Alleyne, 133 S. Ct. at 2163 (“We 

have long recognized that broad sentencing discretion, informed by judicial 

factfinding, does not violate the Sixth Amendment.”); Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting 

that Alleyne does not affect a trial court’s ability to deviate from the 

Sentencing Guidelines).
J-S37022-14

- 9 -

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2014