*1 110 such, v. Id. at 448-455. As we con- of Hicks Dana See Estate
discretion. (Pa. LLC, 943, illegal Companies, Appellant’s sentence 'was .984 A.2d 972 clude 586, 2009), denied, it to pay 610 Pa. insofar as him restitution Super. ordered (2011). to the Commonwealth. As the restitution A.3d 1052 part of was a critical Appellant attempted The evidence scheme, Appellant’s judg- we vacate entire irrelevant. question to elicit from was this ment of sentence remand for resen- and relevant, it In be order evidence , tencing. See at 456. id. “tendency to make fact have a that, sura, crimi- we hold statute it would or than be more less probable nalizing conflicts of interest not vio- does 401(a). without the evidence.” Pa.R.Evid. separation powers, late the of doctrine is Attorney Stretton Whether vagueness, not over- void for understanding prosecu regarding an had broad. the trial court We conclude following proceedings tion before the properly alleged non-prosecu- an excluded Discipline it Court of Judicial did make agreement tion Appellant and between likely more or less violated Commonwealth, sentence, Appellant’s how- 3926(b). 1103(a) Instead, section and/or ever, illegal since the Commonwealth only question Ap this related whether for purposes cannot be deemed a “victim” by prosecution barred pellant’s ordering Accordingly, af- restitution. we with the Commonwealth. That agreement convictions, firm his Appellant’s vacate purely legal question which is is a sentence, judgment remand court, jury, not the trial determine. resentencing. purpose sole Ginn, Pa.Super. v. Cf. Commonwealth 314, (1991) (affirm Judgment of in part 316-317 sentence affirmed part. enforcement Juris- non-prose trial court’s vacated Case remanded. legal it agreement purely cution was a diction relinquished. as at question). As the evidence Appellant
tempted irrel question to elicit this
evant, no we ascertain abuse discretion sustaining the trial order court’s objection.
Commonwealth’s Pennsylvania, COMMONWEALTH Finally, sponte sua consider Appellee legality Appellant’s sentence. See McCatney, v. (Pa. 2017) (citation omit BARNES, Appellant Kwame Lamar ted). 4, 2016, February part of its On as MDA 2014 No. sentence, or judgment of trial the. pay restitution dered Superior Pennsylvania. Court later, Nine months Commonwealth.11 Argued December Pa.-, Veon, —. July Filed (2016), Supreme our held A.3d 435 Court victim that the Commonwealth cannot be a Pa.C.SA,
eligible for restitution under — -, 2015), vacated, A,3d 11. The court did so Pa. accordance then-binding precedent Court's Com- Veon, Super, A.3d 754 monwealth v.
H3 *4 procedural history The facts under- lying undisputed. are On De- 19, 2010, victim, cember was six- who trial, sleeping at the time of teen alone her mother’s home in at Steelton when she message a text from Appellant, received Trial, 2/28/12, ex-boyfriend. her N.T. Although they longer 136-39. were no dat- ing, Appellant the victim still had an relationship. Appellant amicable Id. at 139. message that he indicated the text at the back door residence and the enter victim allowed home. at 140. The victim Id. upstairs the victim’s went bedroom talked, they engaged in in- where sexual Id, tercourse, again. then talked They argument. then 140-41. had victim asked to leave and she *5 to the back escorted downstairs door. him leaving, Id. at 141-42. Prior to Appellant to hit the victim awith vacuum. threatened Subsequently, Appellant Id. at 143-44. victim from strangled by using behind his Id. at 144-45. She arm. lost conscious- S, Roberts, Jr., Harrisburg, for Richard regained Id. at 145. she con- ness. When appellant. sciousness, Appellant victim, said today,” “you’re gonna proceeded die and Adam, District Attor Assistant Katie L. strangle again her until lost she conscious- Commonwealth, Harrisburg, ney, ap- for ness second time.' 145-47. at When Id. pellee. consciousness, finally regained
the victim BENDER, P.J.E., BOWES, BEFORE: wrapped lying she in a blanket was and LAZARUS, STABILE, PANELLA, OTT, recycling in a dumpster head-first under MOULTON, RANSOM, DUBOW, and JJ. Id. Bridge. the State Street 147-50. She eventually managed freed herself and STABILE, BY J.: OPINION get roadway, of a side where the of passing stopped driver vehicle and Appellant ap- Kwame Lamar Barnes hospital. took her to the Id. at 149. The January judgment from the peals victim suffered a broken vertebra her in the of sentence entered Common Pleas neck, injuries, a various facial lacerated (“trial court”), Dauphin County Court large tongue, and swollen contusion to jury following for criminal his convictions eye, right hypothermia. her Id. at 16- assault, attempt-homicide, aggravated kid- 21. napping, recklessly an- endangering (“REAP”).1 review, 20, 2010, person Upon Appellant other On Decembér resentencing. attempt charged with criminal commit vacate and remand 901(a), 2702(a)(1), 2901(a)(3), respectively. 1. 18 Pa.C.S.A.
H5 murder”), (“attempted May the trial court denied on aggravat- The homicide instant followed.3 REAP, assault, kidnapping, terroristic ed threats, taking.2 theft unlawful On four on appeal: raises issues 28, 2012, February the conclusion of Apprendi doctrine. The [L] United trial, guilty was found- juries States Constitution mandates that assault, murder, aggravated decide should all facts' that increase a statutory kidnapping, jury found crime’s maximum sentence. and REAP. The Here, (Appellant] convicted charge of guilty for the ter- murder, generally year 18, 2012, May Appel- roristic On threats. —a maximum If the trial sentence. court lant sentenced to a term of incarcera- crime of attempted submits the tion of 20 to 40 for the years conviction resulting injury murder, a term of consecutive jury, the maximum sentence increases years for his con- of 2½ to 5 incarceration years. But court [the trial] didn’t assault, of aggravated viction and a consec- [Appellant’s] element. submit this Is le- 5 years utive term 2½ to incarceration gal attempted murder maximum sen- kidnapping. his conviction years? tence 20 imposed no additional questions. To appeal [II.] Substantial Appellant timely conviction REAP. sentence, discretionary aspects appealed to this Court.. appellant present “substantial question” sentencing why the court’s ac- 3, 2013, panel On December of this tions are inconsistent with the Sentenc- (“2013 decision”) Court determined that contrary Code to the fundamental the convictions assault and underlying sentencing pro- norms homicide merged should have cess. This court: in- single because the arose from a set crimes a crime’s sentence where creased facts, ie,, Appellant *6 of victim to choked-the fact only changed the exercise of was Accordingly, panel unconsciousness. (2) appellate rights; pro- and failed sentence, of re- judgment vacated the and for its vide reasons new sentence resentencing. for manded [Appellant] record. Does raise substan- Barnes, 2013, unpub- v. 691 No. MDA questions? tial memorandum, 2-3, lished 2013 WL pre-A Judicial Vindictiveness. [III.] 3, (Pa. filed Super, 11247615 December sumption of vindictiveness where arises remand, 2013). 30, 2014, upon January On a imposes court more se- to 20 court resentenced objective vere evidence absent years’ 40 for imprisonment justifying an increased sentence. This of murder consecutive term incarcer- and [Appellant’s] kidnap- trial court doubled years ation of 5 to 10 for the conviction resentencing. It ping sentence at his 5, February 2014, kidnapping. Appel- On on the based increased sentence motion, as at the lant filed which same facts information post-sentence charge taking response, memoran- 2. The unlawful was the trial court issued a theft 12, subsequently preliminary hear- opinion, noting May dismissed at that its 2014 dum ing. opinion set the reasons memorandum forth concluding Appellant for entitled to 3. The file a trial court ordered 1925(a) post-sentence Opin- relief. Pa.R.A.P. 1925(b) statement of com- Pa.R.A.P. errors 6/13/14, ion, at 1. plained appeal. Appellant complied. Code, original 1102(c), [Appel-
time
sentence. Is
the Crimes
18 Pa.C.S.A.
kidnapping
imposed
when it
maximum
new
sentence void?
term im
lant’s]
prisonment
years
of 40
for the offense of
imposed
Record reasons for an
[IV.]
the absence of a
resentencing, following
sentence. On
re-
bodily
finding
injury arising
of serious
mand, the
part
court shall make as
result,
from such offense.
As a
record,
in open
disclose
argues
that his
for
sentence,
the time of
a statement of
the United
murder violates
States Su
the imposed
reason
reasons for
sen-
preme
Apprendi,
Court’s decision in
[Appellant’s]
tence. In
five-minute resen-
wherein the Court held that
than
“[o]ther
tencing this record
does make such a
conviction,
prior
any
the fact of a
fact that
[Ap-
statement. Should
Court vacate
penalty for
beyond
increases the
a crime
pellant’s] current sentence and resen-
prescribed
statutory maximum must
provide
tence him to
state-
reasoned
jury,
be
to a
proved beyond
submitted
ment?
Apprendi,
a reasonable doubt.”
530 U.S. at
Brief
Appellant’s
at 8-9.4
490,
2348;
120 S.Ct.
accord Common
16, 2016, panel
On March
of this Court
Gordon,
231,
wealth v.
596 Pa.
Appellant’s judgment
vacated
of sentence
174,
(2007),
denied,
n.l
cert.
553 U.S.
and remanded the case to the trial court
1024,
2094,
128 S.Ct.
\Y¡
added).
1102(c)
injury.
seri
serious
(emphasis
bodily
“Where
The trial court rea-
result,
per
the
bodily injury does not
bodily
ous
soned that serious
injury had been
may
impris
be sentenced to a term
the jury
son
established because
found the de-
shall
the court
guilty
which
be
fendant
the
companion
onment
fixed
offense
Indeed, in
years.”
however,
more than 20
at
Id.
assault. Relying,
Johnson,
Apprendi,
A.2d at
Reid,
wealth
2005), appeal denied,
tence
not more
attempted homicide.” Commonwealth
must
be
66.
put on
seeking, 40-year
than 20
be
(2005). Moreover,
Serious
[40]
proven
notice when the
years may
bodily injury
years.”
murder. See
before a
be
maximum
Johnson,
Pa.
a defendant
(Pa. Super.
imposed
maximum
Common
is
“a fact
id.
sen
for
at
whether a serious
Here,
that a serious
from the
from the
defendant]
rendered a decision
sulting
jury
charged
greater
however, (1)
was never
attempted
serious
maximum
sought
not on
bodily
attempted
bodily
bodily injury
[the
murder or to invoke
presented
on,
murder.
sentence,
either
injury resulted
notice
defendant]
injury,
murder
question
Thus,
with,
resulted
(2)
prove
[the
nor
re-
Johnson,
here
to a find-
charged
verdict
was limited
of,
guilt
the crime of
convicted the defendant
alia,
generally,
murder
inter
aggra-
which
maxi-
murder and
vated
assault
arising
from the defendant’s
mum sentence
[20]
years.
shooting
who
ambush
the victim
Johnson,
wealth brother defendant’s our of the reeord re- Instantly, review first-degree an unrelated murder case. veals the docket sheet not show does During the on the vic- question attack charged attempt- that Appellant was tim, handgun pointed the defendant resulting bodily inju- ed serious the victim’s head and but missed. fired ry. both the and the Specifically, complaint then pursued defendant the victim and judice information sub allege that do not her, striking several more fired rounds injury to caused in the heel At sen- the victim of her foot. *8 attempted the he to kill victim when her. tencing, upon the trial court the imposed The in this is bereft sheet case also verdict of of imprisonment a term 17½ defendant bodily injury any mention serious years attempted to 40 murder. to respect attempted with the murder issues, Among Additionally, charge. jury other the chal- the was not defendant here on lenged attempted finding the murder instructed to render whether from the bodily injury sentence based insufficient evidence resulted serious Particularly, the attempt. step criminal An if-it act is a substantial jury major as step court the follows: commission the instructed toward also strongly crime and corroborates the charged [Appellant] has been jury’s that person belief the at the time To attempt, [Ap- murder. find criminal did firm he the act intent to had pellant] guilty you offense must commit the crime. following that three the elements find (cid:127) An substantial step act can be a even beyond proven have been a reasonable (cid:127) though would been tak- steps other have doubt: en before crime the carried out. could be First, [Appellant] that did a certain you If that are satisfied the three act; is, he physically assaulted and that elements of have attempted murder strangled victim]. [the beyond doubt, proven been a reasonable Second, alleged that at time of this the you find guilty.. should Oth- [Appellant] act, the specific [Appellant] had intent to erwise, you [Appellant] find is, victim]; fully kill he [the that had the (cid:127) guilty of this crime. to intent kill and was formed conscious 2/28/12,- Trial, N.T. at 214-15. The trial of his own intention. repeated jury to the the same in- And, third, the act constituted a that for attempted structions murder three step substantial toward the commission 236-37, 244-47, more times. See id. [Appellant] killing the intended to indicates, foregoing As the 260-63. bring about. charge did meaning of substantial step:-. A attempted resulting murder m’serious person guilty of attempt an cannot be bodily injury. Appellant also not on commit a unless he or crime she an does sought notice that the Commonwealth ei- that step act constitutes substantial bodily ther to that a prove injury serious of that toward the commission crime. attempted from resulted murder An step act is substantial if is a it. greater invoke the Fi- maximum sentence.6 major step toward commission of the nally, importantly and most for purposes strongly also cor- crime also—and Apprendi, jury.was presented never jury’s per- that roborates belief with, on, nor ques- rendered decision son at the he time did the act had a firm tion of bodily .whether serious injury intent commit the crime. attempted resulted Dif- from murder. again, they I’ll that ferently put, because use read the issue of bodily serious you’re injury words define what from resulting .same mur- supposed to understand. der was never as submitted put Appel- 6. Even if the charge Commonwealth had facts underlying the mur- sought prove lant on notice that it serious der. which the The facts with defendant bodily injury agreed magnitude resulted from the of the detailed victim’s murder, Reid; injuries. Appellant’s still would have (noting 867' at- 1285 See Apprendi if "[the violated not find defendant] at his admitted nolo did. bodily injury plea colloquy serious in connection with at- that the suffered victim serious Also, tempted injury murder. extent the Com- in that he she admitted sus- compel monwealth relies Reid to differ- eleven her tained wounds neck stab here,- slashed.’’), misplaced ent outcome such reliance Accordingly, we concluded procedurally factually because Reid is sufficiently defendant was on notice Reid, distinguishable. sought the defendant en- that the the maximum contendere, plea agreeing years tered into a nolo resulting with the bodily.injury. Commonwealth's recitation Id.
H9
We, however,
special
of the
as
inter-
reject
crime
a
element
or
the Common-
rogatory. Accordingly,
argument
with
consistent
First,
wealth’s
two reasons.
supra,
Apprendi,
Johnson and
con-
Johnson,
as we
any finding
determined in
the trial court
in. sentenc-
clude that
erred
jury
the
bodily injury
serious
-for
ing Appellant
to the maximum term of
aggravated assault could
be used to
imprisonment
years
infer that
jury
the
bodily
found serious
jury
murder because the
did not determine
injury for
charge.
murder
that
bodily injury
serious
relative
occurred
Johnson, 910
n.10;
See
A.2d at 68
accord
charge.,
murder
Watley,
2013) (en banc),
Nonetheless,'
the Commonwealth
denied,
Pa.
serious when he committed omitted). quotation juries marks Because aggravated against assault the victim. In permitted are to render inconsistent contrast, earlier, ver- as we stated Commonwealth,8 in this per- dicts it was charged attempted only fectly acceptable jury for the here to find present- generally jury and the was never injury bodily respect ag- serious to with, on, nor ed rendered decision gravated but not attempted assault mur- question bodily injury a serious whether Moreover, above, der. as we detailed from the resulted murder. jury actually here was never instructed Thus, Johnson, consistent with cannot we nor to make asked a determination on jury’s finding infer from the of serious bodily injury resulting serious from at- injury relating aggravated to as- bodily reasons, tempted on murder. Based these jury that the also sault found serious bodi- it improper would be us to infer from ly injury relating to murder. jury’s finding bodily of serious injury Second, it in is well-settled that relating assault consistent in permissible verdicts are bodily injury also found serious relat- Commonwealth. See v. murder.
States,
Pa.
Finally,
the Commonwealth ar
(2007).
explained
As
gues
the law
the case doctrine
Petteway,
(Pa.
Super.
We note first that inconsistent determining that the not did render perplexing, while often not are consid- finding injury relating ered mistakes do not constitute a disagree. murder. We Consistency basis for reversal. ver- dicts in criminal not necessary. cases is As explained this Court acquittal When one count in an Gacobano, Commonwealth v. indictment is inconsistent with a convic- 2013): count, tion on a second the court looks The law of the case doctrine refers upon acquittal no as more than the family of embody rules which con- jury’s assumption of a power they which cept that a court involved the later exercise, right had no but to which phases litigated of a matter not should they Thus, disposed through lenity. were reopen questions by another decided this Court will not guilty disturb ver- judge of by higher that same court or apparent dicts the basis of inconsis- phases court in the earlier of the matter. long tencies as as there is evidence to ... The various up rules which make support the verdict. rule that incon- the law the case doctrine serve sistent verdicts do constitute revers- only goal to promote judicial econ- ible error applies acquit- (1) even where the omy operate ... but also to protect ted offense is a lesser included expectations offense parties; settled charge decisions; (3) which a defendant to insure uniformity guilty. found consistency during maintain parties Anderson, 8. The dispute aggra- here do not 538 Pa. vated assault is a lesser-included offense of attempted murder. Commonwealth *11 record, case; (4) of Upon are single to review the we of a effectuate course to in agree. constrained The convictions and streamlined administra- proper the (5) facts; of bring litigation question single set justice; tion and arise from a of namely, choked the vic- to an end. such, As tim to the unconsciousness. Gacobano, (quoting 419-20 merge for for these offenses sentences McCandless, 880 A.2d Commonwealth sentencing purposes, and we are com- 2005) (en banc) (Pa. Super, pelled Appellant’s to vacate sentence. omitted)). Therefore, (additional citation doctrine, Barnes, the law of case under unpublished MDA No. (Pa. memorandum, Super, 2-3 has considered filed De- appellate when an court added). 3,2013) (emphasis to it question cember and submitted decided not, upon it will a subse- upon appeal, foregoing excerpt As the from our phase of the quent appeal another demonstrates, prior panel of decision case, previous ruling its reverse even address, this Court asked to nor This though convinced it was erroneous. address, it of the issue whether did frequently adopted and rule has been bodily injury jury here rendered a serious not, in It is applied our own State. how- finding respect murder. ever, It not have the inflexible. does hot prior panel The did determine likewise judicata. of res finality the doctrine bodily jury’s injury whether serious ruling may have been- fol- prior “The finding relating assault was is there lowed as the law case but also found sufficient infer such a difference between adherence injury for the serious discretion, judicata; and res one directs words, charge. In no other deter- murder (sic) it and supercedes and the other prior panel by mination as was made words, in judgment. In compels other beyond a rea- to whether the found question power, it one choking Appellant’s sonable doubt that of submission.” The rule other bodily injury constituted victim of con- largely of the case” is one “law purposes for murder. policy, public venience both which however, considered ad- prior panel, judicial deci- stability are served issue, ie., only very narrow dressed sions, it must be accommodated merged aggravated assault whether justice by the discriminat- the needs for sentenc- purposes judicial power. ing exercise stated, prior panel determined ing. As McCandless, they merged offenses because 880 A.2d that the two (quoting Id. at facts, ie., (additional omitted)). Appel- single arose from set of at 1268 citation victim to unconscious- choking lant’s decision, of this prior panel In the 2013 ness. Court stated: Johnson, sum, “the jury argues that his here as convictions with, nor rendered Attempted presented was never Aggravated
for Assault and on, a seri- question of whether single from a of facts decision Homicide arise set therefore, merge from the at- and, bodily injury these offenses ous resulted Johnson, supra at purposes. tempted murder.” (footnote omitted). (Pa. Accordingly, are Rovinski, [1997]). Appellant’s that the vacate Super. 2007 We note constrained remand re- attempted murder and Appel- not dispute does sentencing. lant’s contention. 2119(f);
Next,
argues that
whether there
R.A.P.
impos
question
abused its discretion
substantial
that the sen-
ing upon him a more severe sentence for
appealed
appropri-
tence
from is not
than, it
kidnapping on remand
on his
Code,
did
Sentencing
ate under the
Consequently, he
original
claims
sentence.9
9781(b).
Pa.C.S.A.
.
pre
his
on remand invites
(citing
Id. at
Ev-
Commonwealth v.
sumption of vindictiveness.
ans,
2006)).
*12
Appellant’s
particular
issues im Whether a
issue
a
Because
constitutes
aspects of
plicate only
discretionary
question
appropriate-
his
about the
substantial
sentence,
is
note it
that
is question
we
ness of sentence
a
to be evalu-
well-settled
discretionary
right
appeal
a
as
.
case-by-case
“[t]he
ated
a
basis. See Com-
pect
Kenner,
sentence is
absolute.” Com
808,
monwealth v.
784 A.2d
811
Dunphy, 20
1215, 1220
v.
A.3d
(Pa.
2001), appeal denied,
monwealth
Super.
568 Pa.
2011). Rather,
(Pa. Super.
appel
an
where
695,
(2002).
[W]e
(1)
case-by-case
evaluated on a.
basis.
appellant
Com
whether
has
determine:
Paul,
(Pa.
825,
v.
925 A.2d
timely
monwealth
828
appeal,
a
notice
see
filed
2007).
(2)
Super.
903;
have
a
We
found
sub
Pa.R.A.P. 902 and
whether
that
question
stantial-
properly preserved
appel
“when the
the issue was
exists
motion,
sentencing
argument
a
lant
a
or in
advances
colorable
reconsid-
sentence,
sentencing judge’s
modify
er and
see
actions were either:
Pa.
[720]; (3)
(1)
appel-
specific provision
R.Crim.P.
whether
inconsistent
defect,
Code;
lant’s
a fatal
Sentencing
brief has
or.
contrary
Pa.
Bowen,
1254,
reviewing
challenge
to the
When
v.
A.3d
discretion,
(Pa.
2012)
court’s
our
of review is
standard
Super.
(quoting
Common
as follows:
566,
Cunningham,
wealth v.
A.2d
Sentencing
(Pa.
2002)),
is
denied,
vested
the sound
matter
Super.
appeal
Pa.
sentencing judge,
discretion of the
and a
(2013).
64 A.3d
appeal
sentence will
not be disturbed
10. Rule
2119(f)
absent a manifest abuse of
An
discretion.
provides
appellant
"[a]n
just
abuse
of discretion more
than
challenges
discretionary aspects of a
who
and,
judgment
appeal,
error in
on'
the trial
in criminal
shall set
matter
forth
court will not be found to have
its
abhsed
his
brief a
statement
the reasons
concise
unless the
discloses- that
discretion
record
upon
re-
appeal
relied
for allowance of
judgment
manifestly
exercised was
un
spect
discretionary aspects
of a sen-
reasonable,
partiality, preju
or the
result
2119(f).
tence.” Pa.R.A.P.
dice, bias, or ill-will.
for having successfully
norms which
underlie
fundamental
attacked his first
play
part
no
conviction
in the
process.” Commonwealth
sen-
(Pa.
tence
Phillips,
Super.
he receives after
new
And
trial.
since
2008) (citation omitted),
denied,
may
the fear
appeal
of such vindictiveness
unconstitutionally deter a
defendant’s
disapproved
grounds
of on
Com
other
trial,
following
grant
a new
sentence
15,
Robinson,.
v.
20-
monwealth
that
rationale for
have
Pearce’s
we
held
(Pa.
(en
).11
2007)
Super.
In North
banc
applies
reasons on the record
providing
Pearce,
711,
v.
395 U.S.
89 S.Ct.
Carolina
original
also
sentence is vacated
when
2072,
(1969),
Due
trial court
after
Thus,
Pearce,
against
resentencing).12
a
under
vindictiveness
defendant
,a
holding
judicial
prior
by
claim
11. Walker and
cases
sue
tiveness,
that claims
vindic-
held
any
process concerns aris-
judicial
resentencing
due
vindictiveness in
a
therefrom,
only discretionary
ing
implicate
legality
challenge
of sen-
“non-waivable
Robinson,
aspects
22.
of sentence.
A.2d at
Robinson,
Robin-
tence.”
based on pro- 5/12/14, the fact that not did Opinion, error. See Trial Court at 4. trial, ceed to newa but rather was resen- by is not Judge Bender, conclusion altered [O]ur President Emeritus resentencing Bowes, Judge Panella, fact that remand and were Judge Judge Lazarus, by Ott, prompted Judge Dubow, [the reversal Judge two Judge join convictions. ... Whether defendant’s] Moulton this Opinion.
remand is the one result reversal Judge Ransom files Concurring or more convictions vacation Judge joins, Statement which Dubow sentence, illegal we conclude that trial court has the same discretion and CONCURRING BY STATEMENT responsibilities resentencing. RANSOM, J.: ld. at 673-74. join I Majority opinion in all re- here was not the victim of a Nevertheless, spects. I separately write on part vindictive sentence the trial note that Appellant raised two cláims chal- court, aggregate as his sentence after re lenging discretionary aspects of his sen- differently, mand Put remained same. tence, (1) asserting that his sentence Greer, Walker, and McHa- consistent with product remand was the of vindictiveness le, the trial court’s resentencing did (2) place the court failed rise to vindictiveness because the trial record reasons for the imposed, sought preserve integrity court here 9721(b). See violation on Pa.C.S. original sentencing scheme im Appellant’s Br. at Majority 18-19.The does sentence. See posing aggregate the same the latter. address Vanderlin, Commonwealth v. Pa.Su per. (recogniz A claim provide that a court failed court, authority of the trial after reduc statement of reasons im ing sentence one count to accord posed presents question. a substantial law, impose greater sentence on Malovich, another count in to insure appellant 1247, 1253(Pa. 2006). order prison length remained a certain Section 9721 provides: Grispino, time); Commonwealth v. *15 In every ease in which the court ... 107, 950,
Pa.Super. 521 954 A.2d remand, following resentences the court (noting that trial court does not violate record, shall make as part the jeopardy principles by increasing double open disclose in court at time of the on aggregate sentence where term remand sentencing, a statement of reason increased), appeal denied, the is not 516 Pa. for imposed. reasons the sentence (1987). Accordingly, A.2d Appellant is not entitled relief his 9721(b) added). (emphasis Pa.C.S. claim under Pearce.13 process due Thus, duty open the to state in reasons
Judgment of sentence applies sentencing vacated. Case re- court to the original for resentencing. manded all hearing, subsequent Jurisdiction re- as as resen- well linquished. hearings. Commonwealth v. tencing upon disposition Appellant's resentencing, 13. Based our the case remanded the sen- issue, afresh; first we need not his fourth address tencing require- judge should start the However, issue. we remind court the trial that imposition ment to state reasons for the ‘‘[r]eimposing judgment of sentence should original applies sentenc- sentence both the be a not mechanical exercise.” Common- ing hearing subsequent and to all resentenc- Losch, Pa.Super. wealth v. ing hearings. Id. at n.9. (1987). When a sentence is vacated and (internal 9, 12 (1984)) Thomas, Pa.Super. citations modified). omitted; some-punctuation According Appellant, the court brief, appellate In its the Common- pro- it discretion when failed to abused its that, wealth contends because the court’s imposed. any reasons the sentence vide original for the reasons sentence were view, has my accurately por- - placed on record the and because trayed resentencing substance merger issue that resentenc- necessitated (N.T. Testimony hearing. See Notes ing question, call those into did'not reasons 01/30/2014, 2-6. Resentencing), The tran- reasoning adequate the court’s earlier script does reveal the court’s familiari- to support imposed. the new sentence case; ty underlying facts of this with the According Commonwealth’s Br. at 14. to the Sentencing reference no there Commonwealth, “to restate the rea- Code or norms that underlie the sen- sons would Id. be redundant.” process; any nor tencing sugges- is there I reject the Commonwealth’s contention. tion upon the court relied considerations As this Court has previously previously, its noted “the sentencing de- informed presence cision. Id.1 mere the record of evidence the court could have relied does sentencing explanation A of its court’s meet requirement judge that the state inérely. perfunctory is not exer- what it rely impos- was the did contrary, cise. To the Thomas, sentence.” A.2d at policy underlying requirement [t]he (rejecting by a similar contention the Com- judge state of sentencing record “simply monwealth that should this Court the reasons for the found applied assume” the considerations same thought to make.public the need (citation [sjhe omitted). at process par- resentencing) To by which arrives By affording appellate previous extent a ticular sentence. statement of reasons in upon fully courts some basis support which may adequately a sentence ex- comprehend fairly review the ac- plain the upon court’s considerations re- court, sentencing tions of the this di- resentencing, the court should mand as against acts arbitrary shield rective specifically incorporate those reasons while, sentencing decisions the same reference.. Id. time, discouraging the entertainment Here, disposition, of bur 'light improper or irrelevant factors. oppor- another court will have required have never Although our courts tunity Ap- make public reasons cite to statement reasons view, pellant’s my sentence. In the court specific language Sentencing should do so. Code, should, nonetheless, ... it evince *16 the court’s reflection the standards joins Concurring this Judge Dubow mentioned con- and should Code Statement. explanation tain consider- some of how guidelines ation of-those affected
determination sentence.
Thomas, 13 (quoting 537 A.2d at Com- Mills, Pa.Super.
monwealth yet resentencing, 1. It is I time of with some infer nonetheless chose concern that Ap- impose illegal See court- well sentence. Resen- N.T. aware issue, prendí tencing appeal, 3-4. resolved