J-S11024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN FELIX MENDEZ, JR.

Appellant No. 1175 MDA 2014

Appeal from the Judgment of Sentence June 9, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0005554-2012

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 18, 2015

John Felix Mendez, Jr. appeals the judgment of sentence imposed June 

9, 2014, in the Lancaster County Court of Common Pleas. The trial court 

imposed a mandatory minimum sentence1of three to six years’ 

imprisonment following Mendez’s jury conviction, in absentia, of possession 

with intent to deliver cocaine and possession of drug paraphernalia.2 On 

appeal, Mendez contends the sentence imposed is unconstitutional in light of 

the United States Supreme Court’s decision in Alleyne v. United States, 

133 S.Ct. 2151 (U.S. 2013). We agree. 

____________________________________________

1 See 18 Pa.C.S. § 7508(a)(3)(ii).

2 75 Pa.C.S. §§ 780-113(a)(30) and (a)(32).
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The charges against Mendez arose following the execution of a search 

warrant at his residence on St. Joseph Street in Lancaster, Pennsylvania. 

The search uncovered 24.9 grams of cocaine, as well as various items used 

to cut and package cocaine for distribution. On August 26, 2013, Mendez 

filed a motion to suppress the evidence recovered during the search and 

statements he made later at the police station. Following a hearing, the trial 

court entered an order on November 21, 2013, denying the motion to 

suppress. 

After Mendez expressed his desire to proceed pro se, the trial court, on 

April 28, 2014, conducted a Grazier3 hearing. The court determined that 

Mendez’s waiver of counsel was knowing and voluntarily, and provided 

Mendez with personal notice of his June 9, 2014, trial date.4 On June 3, 

2014, Mendez filed a second motion to suppress, pro se, “which contained 

no new information that had not been previously determined by the prior 

suppression motion and hearing.” Trial Court Opinion, 8/18/2014, at 2. 

On June 9, 2014, Mendez failed to appear for trial. The trial court 

denied Mendez’s second suppression motion, and proceeded to conduct his 

jury trial in absentia. The jury returned a verdict of guilty on both charges, 

specifically finding (1) the crime occurred within a drug free school zone, 

____________________________________________

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4 According to the trial court, “Court Adminstration also sent [Mendez] notice 

of his time and date for trial.” Trial Court Opinion, 8/18/2014, at 2.
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and (2) the weight of the cocaine was 24.9 grams. See Jury Verdict, 

6/9/2014. See also 18 Pa.C.S. §§ 6317 and 7508. The trial court 

proceeded immediately to sentencing, and imposed a mandatory minimum 

sentence, pursuant to 18 Pa.C.S. § 7508(a)(3)(ii),5of three to six years’ 

imprisonment on the charge of PWID, and a concurrent term of one year 

probation for the charge of possession of paraphernalia. Mendez was 

subsequently arrested on a bench warrant,6and this timely appeal followed.7

Mendez’s sole issue on appeal challenges the legality of his sentence. 

He argues the trial court’s imposition of the mandatory minimum sentence 

set forth in Section 7508 is unconstitutional pursuant to the United States 

Supreme Court’s decision in Alleyne. See Commonwealth v. Newman, 

99 A.3d 86 (Pa. Super. 2014) (en banc) (“[A] challenge to a sentence 

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5 See id. (mandatory minimum three year sentence for possession with 

intent to deliver more than 10, but less than 100 grams of cocaine).

6 The trial court stated in its opinion that when Mendez was “picked up on 

[the] bench warrant, he told the court that he knew his trial was to begin on 

June 9, but he did not appear because he had filed a motion on June 3, 

2014.” Trial Court Opinion, 8/18/2014, at 5.

7 On July 17, 2014, the trial court ordered Mendez to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Mendez complied with the court’s directive, and filed a concise statement, 

pro se, on August 7, 2014. Thereafter, on September 29, 2014, Mendez 

filed an application for relief in this Court requesting the appointment of 

appellate counsel. By order entered September 30, 2014, this Court granted 

Mendez’s application and directed the trial court to appoint counsel for direct 

appeal. Counsel was subsequently appointed, and filed a substantive brief 

on Mendez’s behalf.
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premised upon Alleyne ... implicates the legality of the sentence and cannot 

be waived on appeal.”). 

In Alleyne, the United States Supreme Court 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.” Alleyne, 

133 S.Ct. at 2155 (emphasis supplied). Applying that mandate, this Court, 

sitting en banc, concluded that Alleyne rendered the mandatory minimum 

sentencing provision of 42 Pa.C.S. § 9712.1 unconstitutional. See 

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

The Newman Court noted that Subsection (c) of that statute 

permitted the trial court to determine at sentencing whether the elements 

necessary to increase the mandatory minimum sentence, i.e., the defendant 

possessed or was in close proximity to a firearm while selling drugs, were 

proven by a preponderance of the evidence. See 42 Pa.C.S. § 

9712.1(c). However, under the reasoning of Alleyne, the en banc Court 

found that “Section 9712.1 can no longer pass constitutional muster.” 

Newman, supra, 99 A.3d at 98. The Court opined:

[Section 9712.1(c)] permits the trial court, as opposed to the 

jury, to increase a defendant’s minimum sentence based upon a 

preponderance of the evidence that the defendant was dealing 

drugs and possessed a firearm, or that a firearm was in close 

proximity to the drugs. Under Alleyne, the possession of the 

firearm must be pleaded in the indictment, and must be found 

by the jury beyond a reasonable doubt before the defendant 

may be subjected to an increase in the minimum sentence. As 

that is not the case instantly, we are constrained to vacate 
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appellant’s sentence and remand for resentencing without regard 

for any mandatory minimum sentence prescribed by Section 

9712.1.

Id. at 98.

Furthermore, the Newman Court rejected the Commonwealth’s 

suggestion that the illegality of the statute could be remedied upon remand, 

by empanelling a jury to consider the factual questions necessary to impose 

the mandatory minimum. The Court held: 

We find that Subsections (a) and (c) of Section 9712.1 are 

essentially and inseparably connected. Following Alleyne,

Subsection (a) must be regarded as the elements of the 

aggravated crime of possessing a firearm while trafficking drugs. 

If Subsection (a) is the predicate arm of Section 9712.1, 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.

Id. at 101. The Court concluded “it is manifestly the province of the General 

Assembly to determine what new procedures must be created in order to 

impose mandatory minimum sentences in Pennsylvania following Alleyne.

We cannot do so.” Id. at 102.

Following the dictates of Newman, an en banc panel in 

Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed 

December 31, 2014) (en banc), concluded that the mandatory minimum 

provisions set forth in Section 7508, which are structured in the same 

manner as Section 9712.1, are also constitutionally infirm. Id. at *17.

We recognize that the trial court, in the present case, attempted to 

comply with the dictates of Newman by requesting the jury to determine 
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beyond a reasonable doubt whether the facts supported imposition of the 

mandatory minimum sentences. See Jury Verdict, 6/9/2014. However, this 

Court rejected such a procedure in Commonwealth v. Valentine, 101 A.3d 

801 (Pa. Super 2014). 

In Valentine, the trial court permitted the Commonwealth to amend 

the criminal information to include the allegations that the defendant 

committed a crime of violence (1) while visibly possessing a firearm and (2) 

in or near public transportation, facts necessary to impose mandatory 

minimum sentences under 42 Pa.C.S. §§ 9712 and 9713. Id. at 804. 

Furthermore, similar to the present case, the court then included questions 

on the verdict sheet which allowed the jury to determine beyond a 

reasonable doubt whether the facts supported imposition of the mandatory 

minimum. Id. at 811. In finding that the trial court performed an 

“impermissible legislative function,” the Valentine Court opined:

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 

the statutes are therefore unconstitutional as a whole. 

Moreover, Newman makes clear that “it is manifestly the 

province of the General Assembly to determine what new 

procedures must be created in order to impose mandatory 
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minimum sentences in Pennsylvania following Alleyne.” 

Therefore, the trial court lacked the authority to allow the jury to 

determine the factual predicates of §§ 9712 and 9713. 

Id. at 811-812 (internal citations omitted).

The same is true here. Therefore, we are constrained by Valentine, 

Newman and Vargas to reverse the judgment of sentence, and remand for 

resentencing without consideration of the Section 7508 mandatory 

minimum.8

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2015

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8 We note that, upon remand, the trial court is also precluded from imposing 

the “drug-free school zone” mandatory minimum set forth in 18 Pa.C.S. § 

6317(a). That statute, too, has been found constitutionally infirm under 

Alleyne. See Commonwealth v. Bizzel, ___ A.3d ___, 2014 PA Super 

267 (Pa. Super. filed December 2, 2014).