J-S58015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CEDRIC LAMONT DANIELS,

Appellant No. 192 MDA 2016

Appeal from the Judgment of Sentence June 17, 2014

in the Court of Common Pleas of Cumberland County

Criminal Division at Nos.: CP-21-CR-0001420-2013

CP-21-CR-0001430-2013

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 22, 2016

Appellant, Cedric Lamont Daniels, appeals from the judgment of 

sentence imposed June 17, 2014,1following a jury conviction of four counts 

of possession with intent to deliver (PWID) and one count of criminal 

conspiracy.2 He contends that he was sentenced to an unconstitutional 

mandatory minimum sentence imposed under 18 Pa.C.S.A. § 7508(a)(7). 

The Commonwealth concedes that this matter should be remanded for 

resentencing because the sentence imposed was based on a sentencing 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The dockets in this matter reflect that Appellant’s sentences were imposed 

on June 17, 2014. We have amended the caption accordingly.

2 See 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(c), respectively.
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guideline form, which was part of the presentence investigation report (PSI), 

and which reflected an unconstitutional mandatory minimum. We vacate the 

judgment of sentence and remand for resentencing.

We take the factual and procedural history in this matter from our 

review of the certified record. On May 14, 2014, a jury convicted Appellant 

of three counts of PWID and one count of criminal conspiracy to commit 

PWID at Docket No. 1420-2013, and one count of PWID at Docket No. 1430-

2013. The jury also determined that the amount of heroin that Appellant 

possessed with the intent to deliver was one gram or greater. (See N.T. 

Trial, 5/12/14, at 314, 328-29).

On June 17, 2014, the court conducted a sentencing hearing. At the 

beginning of the hearing, Appellant’s counsel explained that he had an 

opportunity to review the PSI and found that it was accurate. (See N.T. 

Sentencing, 6/17/14, at 2). The PSI noted that the Commonwealth filed 

mandatory notices for Counts 1, 2, and 3; and listed the sentencing 

guidelines for Count 3 as “Mitigated: 36 Standard: 36-36 Aggravated: 36”. 

(PSI, 6/13/14, at unnumbered page 2). Attached to the PSI were guideline 

sentence forms, which indicated that there was a mandatory minimum 

sentence of thirty-six months on Count 3.3 (See id. at unnumbered page 

____________________________________________

3 At times Count 3 at Docket No. 1420 is listed as Count 1C. (See, e.g.,

PSI, at unnumbered page 11). We have referred to it as Count 3 throughout 

this memorandum.
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11). Prior to the court imposing sentence, the Commonwealth argued that 

Appellant “was convicted of being a heroin dealer. There are mandatories. 

And Count 3 at 1420, the standard range is three years.” (N.T. Sentencing, 

at 3-4).

 The court sentenced Appellant, at Docket No. 1420, to a term of not 

less than twenty-seven months nor more than five years’ incarceration, and 

a fine of $500.00 for Count 1, PWID; not less than twenty months nor more 

than five years of incarceration for Count 2, PWID, to run concurrent to 

Count 1; not less than three nor more than six years’ incarceration for Count 

3, PWID, to run concurrent to Counts 1 and 2; and not less than two nor 

more than five years’ incarceration, and a fine of $500.00 for Count 4, 

criminal conspiracy. (See N.T. Sentencing, at 4-5). The trial court 

sentenced Appellant, at Docket No. 1430, to a sentence of not less than 

twenty-seven months nor more than five years of incarceration and imposed 

a $500.00 fine. (See id. at 4). The sentence at Docket No. 1420 was 

consecutive to the one imposed at Docket No. 1430. (See id. at 5). After 

imposing sentence, the court explained: “These are the standard range or 

mandatory minimum sentences in this case.” (Id. at 5). 

On June 22, 2014, Appellant timely filed a pro se notice of appeal, 

which the court docketed on June 25, 2014, and forwarded to Appellant’s 
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trial counsel.4 On November 10, 2015, the court appointed counsel to 

represent Appellant on his direct appeal, and directed him to file a counseled 

concise statement of errors complained of on appeal. See Pa.R.A.P. 

1925(b). Appellant filed a timely statement of errors on December 15, 

2015. See id. The court entered its opinion on January 12, 2016. See

Pa.R.A.P. 1925(a).

____________________________________________

4 Appellant’s initial notice of appeal created a procedural quagmire, which a 

prior panel of this Court summarized as follows: 

[O]n June 20, 2014, the court docketed Appellant’s pro se PCRA 

petition. Although trial counsel had not withdrawn, the court 

appointed PCRA counsel for Appellant on June 25, 2014—the 

same day the court docketed Appellant’s notice of appeal. On 

September 22, 2014, PCRA counsel filed a Turner/Finley

petition to withdraw. On September 24, 2014, the court issued 

a Pa.R.Crim.P. 907 notice and also granted PCRA counsel’s 

petition to withdraw. On October 23, 2014, the PCRA court 

dismissed Appellant’s PCRA petition. Four days later, the court 

docketed Appellant’s pro se response to the Rule 907 notice. On 

November 10, 2014, the PCRA court, after reviewing Appellant’s 

response, again dismissed his PCRA petition; the order was also 

mailed the same day.

That same day, November 10, 2014, Appellant filed a 

second, pro se notice of appeal. The notice of appeal did not 

state [whether] Appellant was appealing from the October 23rd 

or November 10th orders. Appellant timely filed a court-ordered 

Pa.R.A.P. 1925(b) statement.

(Commonwealth v. Daniels, 1969 MDA 2014, unpublished memorandum 

at *2-3 (Pa. Super. filed Aug. 5, 2015) (footnotes omitted)). Because 

Appellant’s direct appeal was still pending, this Court found that the trial 

court lacked jurisdiction to act on Appellant’s PCRA petition and quashed the 

appeal. (See id. at *1).
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Appellant raises one question on appeal.

(1) Did the [trial] court err in applying the mandatory minimum 

sentencing statute of 18 Pa.C.S.[A.] § 7508 in violation of 

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

appeal denied, 121 A.3d 494 (Pa. 2015)]?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

Appellant claims that the trial court’s sentence of not less than three 

nor more than six years on Count 3 was a mandatory minimum sentence 

pursuant to section 7508, which this Court concluded was unconstitutional in 

Fennell, supra. (See Appellant’s Brief, at 6-8). The Commonwealth 

argues that, technically, the court did not sentence Appellant to a mandatory 

minimum, but alleges that the court erred when it relied on a PSI that 

contained guidelines based on a mandatory minimum sentence. (See

Commonwealth’s Brief, at 3). The trial court maintains that Appellant was 

not sentenced to a mandatory minimum sentence, and that the three years 

imposed on Count 3 was the standard range sentence as indicated in the 

PSI. (See Trial Court Opinion, 1/12/16, at 15) (explaining sentence for 

Count 3 “was a standard range sentence according to the guidelines filed in 

the clerk’s office, and not a mandatory minimum sentence.”) (footnote 

omitted). Upon review, we are constrained to agree with Appellant that the 

sentence imposed was an unconstitutional mandatory minimum.

Our standard of review is well-settled.

A challenge to the legality of a sentence . . . may be entertained 

as long as the reviewing court has jurisdiction. It is also wellestablished that [i]f no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to 
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correction. 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.

Fennell, supra at 15 (citations and quotation marks omitted).

Here, Appellant alleges that the court imposed a mandatory minimum 

sentence pursuant to section 7508, which provides, inter alia: 

(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 

or such larger amount as is sufficient to exhaust the assets 

utilized in and the proceeds from the illegal activity; 

however, if at the time of sentencing the defendant has 

been convicted of another drug trafficking offense: a 

mandatory minimum term of three years in prison and 

$10,000 or such larger amount as is sufficient to exhaust 

the assets utilized in and the proceeds from the illegal 

activity[.]

18 Pa.C.S.A. § 7508(a)(7)(i).

In Fennell, supra, this Court considered whether the appellant’s 

sentence imposed under section 7508(a) was constitutional under Alleyne 

v. United States, 133 S.Ct. 2151 (2013), given that the appellant 

stipulated to the weight of the drugs for the purpose of the mandatory 

minimum. See Fennell, supra at 20. The Court reasoned that any method 

to impose a mandatory minimum sentence outside the statutory framework 

was inconsistent with Alleyne. See id. Therefore, the Court held that the 
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appellant was entitled to relief because his mandatory minimum sentence 

imposed under section 7508 was unconstitutional. See id.

In Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015), this 

Court considered whether the trial court’s imposition of a mandatory 

minimum sentence pursuant to section 7508 was constitutional where, 

rather than a stipulation to the amount of drugs, the jury, as factfinder, 

determined the weight of the drugs. See Mosley, supra at 1090. It 

concluded that “the trial court performed an impermissible legislative 

function by creating a new procedure in an effort to impose the mandatory 

minimum sentence in compliance with Alleyne.” Id. at 1091.

Similarly, in the instant matter, the court created a verdict slip wherein 

the jury determined that the amount of heroin possessed for Count 3 was 

greater than one gram. (See N.T. Trial, 5/12/14, at 314, 328-29). The 

Commonwealth gave notice that it was seeking the mandatory minimum for 

that count. (See PSI, at unnumbered page 2). The PSI prepared by the 

probation office and provided to the trial court included a guideline sentence 

form that stated that Count 3 had a mandatory minimum sentence of thirtysix months. (See id.). The sentencing recommendation for Count 3 

included sentencing guidelines which read: “Mitigated: 36 Standard: 36-36 

Aggravated: 36[.]” (Id.). Thus, it appears that the probation officer 

considered the thirty-six month mandatory minimum when preparing the 

guideline amounts for the PSI.
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Thereafter, at sentencing, the Commonwealth argued: “There are 

mandatories. And Count 3 at 1420, the standard range is three years.” 

(N.T. Sentencing, at 3-4). The court then imposed a period of incarceration 

for Count 3 of “not less than three years or more than six years.” (Id. at 5). 

After imposing sentence the court explained: “These are all standard range 

or mandatory minimum sentences in this case.” (Id.).

Thus, upon review, we are constrained to conclude that the trial court 

sentenced Appellant on Count 3 to an unconstitutional three-year mandatory 

minimum sentence imposed under section 7508. See Mosley, supra at 

1091; Fennell, supra at 15, 20. Accordingly, we must vacate the judgment 

of sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded for re-sentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2016