J-S47025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JASON ANSEL

Appellant No. 1 MDA 2015

Appeal from the Judgment of Sentence June 3, 2013

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0000612-2012

BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED JULY 28, 2015

Jason Ansel appeals nunc pro tunc from the judgment of sentence 

imposed on June 3, 2013, in the Court of Common Pleas of Berks County. 

Ansel entered a negotiated plea to one count of possession with the intent to 

deliver (PWID) cocaine, and one count of PWID marijuana.1 The trial judge 

sentenced him to serve an aggregate term of 5 to 10 years’ incarceration. 

Ansel contends his sentence is illegal under Alleyne v. United States, 133 

S.Ct. 2151, 2155 (2013) (holding that an aggravating fact that increases a 

mandatory minimum sentence must be submitted to the jury for a finding 

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* Retired Senior Judge assigned to the Superior Court. 

1 35 P.S. § 780-113(a)(30).
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beyond a reasonable doubt).2 Based upon the following, we vacate the 

judgment of sentence and remand for resentencing. 

As stated, Ansel entered a negotiated guilty plea to two counts of 

PWID (cocaine and marijuana). During the entry of the plea, Ansel admitted 

to the weight of the controlled substances recovered by police. In 

sentencing Ansel, the trial court applied the mandatory minimum sentencing 

provisions of 18 Pa.C.S. § 7508(a)(3)(ii). Specifically, the trial court 

sentenced Ansel to a mandatory minimum term of 5 to 10 years’ 

imprisonment on the count for PWID cocaine, and a concurrent term of 9 

months to 5 years’ imprisonment on the count for PWID marijuana.

Ansel did not file a post-sentence motion or direct appeal. However, 

he filed a petition pursuant to the Post Conviction Relief Act (PCRA),3and 

the PCRA court granted the petition and reinstated Ansel’s appeal rights 

nunc pro tunc. This appeal followed. 

On January 29, 2015, Ansel filed a Pa.R.A.P. 1925(b) statement, 

raising the issue of an illegal sentence based upon Alleyne. The Honorable 

Stephen B. Lieberman, in a supplemental Rule 1925(a) opinion, determined 

this Court’s decision in Commonwealth v. Cardwell, 105 A.3d 748 (Pa. 

Super. 2014) (holding trial court erred by imposing mandatory minimum 

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2 Alleyne was decided on June 17, 2013, two weeks after Ansel was 

sentenced by the trial court.

3 42 Pa.C.S. §§ 9541–9546.
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sentence under Section 7508 even where parties stipulated to weight of 

drugs), “appears to be directly on point,” and “request[ed] that [Ansel’s] 

judgment of sentence be vacated and that the case be remanded to [the 

trial] court for resentencing.” Trial Court Supplemental Opinion, 2/20/2015. 

The Commonwealth opposes remand for resentencing.

In Cardwell, this Court, applying Alleyne, held 18 Pa.C.S. § 7508 is 

unconstitutional as a whole and its subsections non-severable.4 See also 

Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc). In 

light of Cardwell, we conclude the sentence imposed on Ansel’s PWID 

cocaine conviction cannot stand, and we agree with Judge Lieberman that 

the judgment of sentence should be vacated and the case remanded for 

resentencing. Accordingly, we vacate the judgment of sentence in its 

entirety and remand for resentencing, without application of the mandatory 

minimum prescribed in 18 Pa.C.S. § 7508. See Commonwealth v. 

Goldhammer, 517 A.2d 1280, 1283-1284 (Pa. 1986) (if appellate court 

alters overall sentencing scheme, then remand for re-sentencing is proper); 

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4

 The Commonwealth maintains that the unconstitutional portion of Section 

7508 is severable from the remainder of the statute. However, we note that 

the Section 7508 “proof at sentencing” provision, which permits the trial 

court to find the necessary elements by a preponderance of the evidence, 

contains almost identical language as that found in another mandatory 

minimum statute, 18 Pa.C.S. § 6317, which the Pennsylvania Supreme Court 

has held to be unconstitutional in its entirety and non-severable. 

Commonwealth v. Hopkins, ___ A.3d ___ [2015 Pa. LEXIS 1282] (Pa. 

June 15, 2015).
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Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (if 

trial court errs in its sentence on one count in multi-count case, then all 

sentences for all counts will be vacated and matter remanded for court to 

restructure its entire sentencing scheme). 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015