A Tamaqua man convicted of raping a 12-year-old girl is entitled to be resentenced because facts found by a jury, not a judge, should have decided his mandatory minimum penalty of 10 years, a state Superior court panel of judges has ruled.

The panel of judges, David N. Wecht, Victor P. Stabile and Senior Judge John L. Musmanno, rejected Angel Resto's argument that there was insufficient evidence to convict him.Resto, 23, was convicted on Aug. 25, 2014, of raping the girl. Schuylkill County President Judge William Baldwin delayed sentencing to have a pre-sentence investigation done. On Nov. 24, 2014, he sentenced Resto to a total of 10 to 21 years in state prison.Resto began his appeals process on Dec. 12, questioning whether the evidence was sufficient to support convictions on the charges of rape of a child and statutory sexual assault, and, whether the 10-year mandatory minimum sentence imposed by the trial judge was illegal.His first question was based on the fact that no rape kit was performed on the child."Resto offers no legal authority in support of his claim that a rape kit is a prerequisite to proof beyond a reasonable doubt that sexual intercourse occurred," Wecht wrote. "Unsurprisingly, Resto offers no such authority exists, and that is because no such authority exists."To satisfy each crime, the Commonwealth need only prove, through direct or circumstantial evidence, that sexual intercourse occurred. A rape kit is but one of many ways in which the Commonwealth may satisfy its burden."Wecht wrote that the victim testified as to what Resto did to her, and that "DNA evidence corroborated her testimony beyond a reasonable doubt."As to his challenge of his sentence, the judges agreed that his sentencing was illegal."Resto was sentenced pursuant to an unconstitutional statute. He must be resentenced. Consequently, we vacate the judgment of sentence, and we remand this case for resentencing without consideration of the mandatory minimum sentencing provision at issue in this case," Wecht wrote.The panel based its decision on the case of Alleyne v. United States.In that case, the United States Supreme Court held that "facts that increase mandatory minimum sentences must be submitted to the jury" and must be found beyond a reasonable doubt."In light of the constitutional pronouncement in Alleyne, we have systematically been declaring unconstitutional Pennsylvania's mandatory minimum sentencing statutes that permit a trial court, rather than a jury, to make the critical factual findings for sentencing," Wecht wrote.