J-S11022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HERACLIO BERNAL CRUZ

Appellant No. 1807 EDA 2015

Appeal from the Judgment of Sentence May 14, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0002602-2012

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED MARCH 29, 2016

Heraclio Bernal Cruz appeals, nunc pro tunc, from the judgment of 

sentence imposed on May 14, 2014, in the Court of Common Pleas of 

Chester County, following his open guilty plea to 37 counts of possession of 

a controlled substance (cocaine) with intent to deliver (PWID) and one count 

of corrupt organizations.1 Heraclio was subject to multiple mandatory 

minimum sentences pursuant to 18 Pa.C.S. § 7508(a)(3)(i)-(iii). In this 

timely appeal, Heraclio argues, and both the Commonwealth and trial court 

agree, that pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), 

his sentence is unconstitutional. Accordingly, Heraclio requests his sentence 

be vacated and the matter remanded for resentencing. After a thorough 

____________________________________________

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 911, respectively.
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review of the submissions by the parties, relevant law, and the certified 

record, we agree, and therefore vacate the judgment of sentence and 

remand for a new sentencing hearing and imposition of a new sentence.

After pleading guilty to 37 counts of PWID, Cruz received an aggregate 

sentence of 23-50 years’ incarceration. This sentence was based upon the 

imposition of consecutive terms of at least five mandatory minimum 

sentences pursuant to the dictates of 18 Pa.C.S. § 7508(a)(3). This section 

includes mandatory minimum sentencing provisions based upon both the 

weight of the contraband possessed as well as recidivist status of the 

defendant. The recidivist portions of the statute are specifically dependent 

on the weight of the drugs possessed.2

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2

In relevant part, 18 Pa.C.S. § 7508 states:

(3) 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 is coca leaves or is 

any salt, compound, derivative or preparation of coca leaves or 

is any salt, compound, derivative or preparation which is 

chemically equivalent or identical with any of these substances 

or is any mixture containing any of these substances except 

decocainized coca leaves or extracts of coca leaves which 

(extracts) do not contain cocaine or ecgonine shall, upon 

conviction, be sentenced to a mandatory minimum term of 

imprisonment and a fine as set forth in this subsection:

(i) when the aggregate weight of the compound or mixture 

containing the substance involved is at least 2.0 grams 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

and less than ten grams; one year 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: 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;

(ii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least ten 

grams and less than 100 grams; three years in prison and 

a fine of $15,000 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: five years in prison and $30,000 or such larger 

amount as is sufficient to exhaust the assets utilized in and 

the proceeds from the illegal activity; and

(iii) when the aggregate weight of the compound or 

mixture of the substance involved is at least 100 grams; 

four years in prison and a fine of $25,000 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: seven years in prison and 

$50,000 or such larger amount as is sufficient to exhaust 

the assets utilized in and the proceeds from the illegal 

activity.

18 Pa.C.S. § 7508(a)(3)(i)-(iii).
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In Alleyne v. United States, supra, the United States Supreme 

Court held that any fact that increases the penalty for a crime is an element 

that must be submitted to a jury and found beyond a reasonable doubt. In 

light of Alleyne, our courts have determined that the mandatory sentencing 

scheme at issue herein is unconstitutional. See Commonwealth v. 

Cardwell, 105 A.3d 748 (Pa. Super. 2014).3 Additionally, Commonwealth 

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

Alleyne applied to any criminal case still pending on direct appeal.

Therefore, as recognized by both the trial court and the 

Commonwealth, Cruz’s sentence is unconstitutional and must be vacated. 

Accordingly, this matter must be remanded for a new sentencing hearing 

and imposition of a new sentence.

Judgment of sentence vacated. This matter is remanded for a new 

sentencing hearing and imposition of new sentence to be held within 45 days 

of receipt of this decision. Jurisdiction relinquished.

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3 Cardwell cites both Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa. 

Super. 2014) regarding the non-severability of the offending portions of 18 

Pa.C.S. § 7508.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2016