J-S01039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHARLES MCMICHAEL

Appellant No. 3197 EDA 2014

Appeal from the Judgment of Sentence August 11, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005966-2013

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 12, 2016

Appellant, Charles McMichael, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his jury 

trial convictions for robbery, conspiracy, and possessing instruments of 

crime (“PIC”).1 On March 25, 2013, codefendant Marquis Jackson’s brother 

and the two victims were in the Jackson family home. Appellant and 

codefendant entered the house, and Appellant pointed a firearm at the 

victims while ordering them to empty their pockets. On May 13, 2014, a 

jury convicted Appellant of two (2) counts of robbery and one (1) count each 

of conspiracy and PIC. On August 6, 2014, Appellant filed a motion to bar 

application of a mandatory minimum sentence, which the court granted in 

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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 907(a), respectively. 
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part and denied in part. The court sentenced Appellant on August 11, 2014, 

to concurrent terms of five-and-a-half (51⁄2) to twelve (12) years’ 

incarceration for the robbery and conspiracy convictions, pursuant to the 

mandatory minimum sentencing statute at 42 Pa.C.S.A. § 9712 (sentences 

for offenses committed with firearms). The court imposed a concurrent term 

of two-and-a-half (21⁄2) to five (5) years’ incarceration for PIC. Appellant 

timely filed a post-sentence motion on August 20, 2014, which the court 

denied on November 4, 2014. Appellant filed a timely notice of appeal on 

November 12, 2014, and a voluntary statement per Pa.R.A.P. 1925(b). 

Section 9712 states its statutory provisions shall not be an element of 

the crime, and its applicability shall be determined at sentencing by a 

preponderance of the evidence. In Alleyne v. United States, ___ U.S. 

___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme 

Court expressly held that any fact increasing the mandatory minimum 

sentence for a crime is considered an element of the crime to be submitted 

to the fact-finder and found beyond a reasonable doubt. See also

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

(holding 42 Pa.C.S.A. § 9712.1 can no longer pass constitutional muster as 

it permits court to increase defendant’s minimum sentence based upon 

preponderance of evidence). This Court extended the logic of Alleyne and 

Newman to Section 9712, in Commonwealth v. Valentine, 101 A.3d 801 

(Pa.Super. 2014), holding that statute is likewise unconstitutional insofar as 
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it permits increase of a defendant’s sentence based on the preponderance of 

the evidence standard; the court could not cure the unconstitutionality of the 

statute with a verdict sheet containing specific jury interrogatories. Id. In 

so doing, the court would improperly create a new sentencing procedure, as 

the statute is not severable and is unconstitutional in its entirety. Id. 

Instantly, the court imposed mandatory minimum sentences for each 

of Appellant’s robbery and conspiracy convictions, pursuant to 42 Pa.C.S.A. 

§ 9712. The sentences were unlawful, despite the jury’s finding beyond a 

reasonable doubt that Appellant possessed a firearm during the robberies. 

See id. Accordingly, we affirm Appellant’s convictions, but vacate the 

judgment of sentence in its entirety and remand for resentencing on all 

convictions, without imposition of a mandatory minimum term.2 See 

Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal 

denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error in 

multi-count case requires that all sentences be vacated so court can 

restructure its whole sentencing scheme). 

Judgment of sentence vacated; case remanded for resentencing. 

Jurisdiction is relinquished. 

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2 We decline the Commonwealth’s invitation to hold our decision on this 

appeal pending the resolution of Alleyne challenges presently under review 

by the Pennsylvania Supreme Court. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2016