COMMONWEALTH OF PENNSYLVANIA, Aрpellee v. JIMEL KING, Appellant
No. 3 EAP 2019
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
DECIDED: July 21, 2020
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ARGUED: September 11, 2019
JUSTICE DONOHUE
We granted allowance of appeal in this matter to consider the legality of Jimel King‘s enhanced sentence for attempted murder resulting in serious bodily injury under
I. Factual and Procedural History2
On June 17, 2015, Jimel King jumped out of a vehicle driven by Ramir Porter and fired at least nine bullets towards Arielle Banks, with one striking her ankle and another her lower back. Banks survived, but her hip and ankle were shattered. She provided information to the police that linked King and Porter to the crime.
On August 14, 2015, the Commonwealth filed a criminal information charging King with attempted murder, aggravated assault, conspiracy, carrying a firearm without a license, possession of a firearm by a pеrson prohibited, and possessing an instrument of crime. The attempted murder charge alleged that King “[i]ntentionally and with malice attempted to cause the death of another human being[.]” Information, 8/14/15, at 1. The Commonwealth provided notice of its intent to seek a mandatory minimum of at least five years of incarceration pursuant to
Before the jury retired to deliberate, the parties reviewed and agreed to the content and form of the verdict sheet which, in addition to listing all of the charges, contained the following interrogatory: “Answer only [i]f you find [King] guilty of Attempted Murder. Do you find beyond a reasonable doubt that the victim suffered serious bodily injury? YES or NO[.]” Id. at 200; Verdict Sheet, 5/26/16, at 1. The jury found King guilty of all charges.5
King was originally sentenced to consecutive terms of imprisonment of twenty to forty years for attempted murder, ten to twenty years for conspiracy to commit murder, and five to ten years for possession of a firearm by a person prohibited. N.T., 8/31/16, at 31-32. King also received concurrent terms of five years of probation for carrying a firearm without a license and carrying a firearm on public streets in Philadelphia. Id. The court merged aggravated assault with attempted murder and imposed no further penalty on the remaining convictions. Id. The trial court issued a written sentencing order later that day, correcting King‘s sentence of ten to twenty years of incarceration for conspiracy to commit murder to no further penalty, instead imposing that same term for conspirаcy to commit aggravated assault. Corrected Sentencing Order, 8/31/2016, at 1. King filed a post-sentence motion raising several claims not pertinent to the instant appeal, which was denied.
King appealed to the Superior Court, arguing that his sentence for attempted murder was illegal because the Commonwealth never charged “attempted murder causing serious bodily injury” or provided formal notice that it intended to seek the enhanced sentence under
The trial court recognized that the charging documents failed to specifically allege attempted murder causing serious bodily injury or reference
The trial court distinguished Johnson from the instant case, reasoning that the dispositive fact in Johnson was the failure to present the question of serious bodily injury to the jury, resulting in an Apprendi violation. Trial Court Opinion, 5/15/17, at 15. The
In an unpublished memorandum decision the Superior Court reversed King‘s conviction for carrying a firearm on public streets in Philadelphia, but otherwise affirmed the judgment of sentence.7 Commonwealth v. King, 2883 EDA 2016, 2018 WL 4271212 (Pa. Super. Sept. 7, 2018). In addition to his Apprendi claim, King argued for the first time on appeal that the trial court illegally imposed consecutive sentences for attempted murder and conspiracy to commit murder in violation of
Before addressing King‘s claims, the panel explained that legality of sentencing claims involve questions of law for which the standard of review is de novo and the scope of review is plenary. See King, 2883 EDA 2016 at 3 (citing Commonwealth v. Barnes,
In addressing the Apprendi claim, the panel first noted that serious bodily injury resulting from attempted murder is a fact that must be proven prior to imposing the enhanced sentence. Id. (citing Commonwealth v. Johnson, 910 A.2d 60, 66-67 (Pa. Super. 2006)). The panel also explained that the Commonwealth must place an offender on notice where it intends to seek the forty-year maximum sentence under
The panel also discussed Barnes. Barnes was convicted of attempted murder and sentenced to twenty to forty years of incarceration pursuant to
In light of these decisions, the panel concluded that King received sufficient notice of the Commonwealth‘s intent to seek the enhanced sentence for attempted murder resulting in serious bodily injury under
The court next rejected King‘s claim that the corrected sentence, imposing ten to twenty years of incarceration for conspiracy to commit aggravated assault, was illegal. King asserted that
a. Did not the Superior Court err and deny [King] due prоcess and Sixth Amendment rights in holding that the Commonwealth need not provide formal notice to a defendant when seeking to prosecute him for an aggravated offense, specifically the 40-year maximum sentence authorized under
18 Pa.C.S.A. §1102(c) ?b. Did not the Superior Court err and conflate
18 Pa.C.S. §§ 906 and903(c) in holding that conspiracy to commit murder and conspiracy to commit aggravated assault are separate conspiracies, where [King‘s] actions were the object of one conspiratorial agreement and relationship, pursuant to§ 903(c) , and where [King] was, therefore, subject to an illegal sentence contrary to the prohibition under§ 906 against multiple convictions for more than one inchoate offense?
Commonwealth v. King, 203 A.3d 973 (Pa. 2019).
II. Enhanced Sentence for Attempted Murder
A. The Arguments of the Parties
King first asserts that the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the notice and jury requirements of the Sixth Amendment, require the Commonwealth to provide formal notice, in either the indictment or information, when it intends to seek the enhanced maximum sentence of forty years of imprisonment for attempted murder causing serious bodily injury under
King relies on Barnes to argue there are three conditions that must be met before an enhanced sentence under
King maintains that the Superior Court recently “reaffirmed” the notice requirement with regard to
The Commonwealth argues that King received sufficient notice of its intent to seek the sentencing enhancement for attempted murder resulting in serious bodily injury pursuant to
The Commonwealth asserts that the charging documents were sufficient under that asserted standard and provided sufficient notice. Id. at 13. The indictment accused King of attempted murder by “shooting at [Banks] with a loaded firearm, striking her multiple times about the body” and specifically alleged serious bodily injury with respect to aggravated assault based on the same acts. Id. at 13 (quoting Indictment аt 1, 3). The information, viewed against the backdrop of the indictment, was likewise sufficient. Id. Although the attempted murder charge did not allege serious bodily injury, the subsequent charge averred that King had participated in a conspiracy with the objectives of assault and murder, furthered by the overt act of “[shooting] another multiple times with a firearm[.]” Id. at 13-14 (quoting Information at 1). The Commonwealth also notes that
The Commonwealth further argues that King‘s conviction comports with Apprendi. Id. at 17. The Commonwealth disagrees with King‘s assertion that Apprendi requires any fact, other than a prior conviction, that increases the maximum penalty for a crime be charged in the indictment. Id. at 18. The Commonwealth explains that the Apprendi Court did not address the indictment issue because Apprendi did not directly challenge the indictment. Id. The Commonwealth maintains that Apprendi requires fair notice, which occurred in this case. Id. Apprendi also requires that any fact, other than a prior conviction, be submitted to a jury and proved beyond a reasonable doubt. Id. at 18-19.
The Commonwealth further asserts that Johnson, Barnes, and Bickerstaff are all inapposite. Id. at 20. The juries in Johnson and Barnes never determined whether the defendants’ attempted murder offenses resulted in serious bodily injury. Id. Additionally, unlike the circumstances in Bickerstaff, King was not ambushed by the verdict sheet including an interrogatory regarding serious bodily injury associated with attempted murder. Id. at 20-21. Alternatively, the Commonwealth asks this Court to reject the holding in Bickerstaff to the extent it imposes a per se rule requiring reversal based on the failure to cite
Lastly, the Commonwealth maintains that any Apprendi error in this case was harmless. Id. at 22 (citing United States v. Cotton, 535 U.S. 625 (2002)). The Commonwealth focuses on the fact that the evidence of serious bodily injury was “overwhelming and uncontеsted,” given both parties stipulated to the severity of Banks’ injuries. Id. The Commonwealth asserts that King‘s defense was not impaired by lack of formal notice because his defense strategy was that another unknown individual shot Banks. Id.
B. Analysis
King does not allege that the enhanced sentence under
“[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)). Jones is a federal case involving a federal prosecution and rests on the Grand Jury Clause of the Fifth Amendment to the United States Constitution as summarized by the United States Court of Appeals for the Sixth Circuit:
Apprendi did not hold that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 476. Rather, this is the holding of Jones, a case involving a federal prosecution, to which the Fifth Amendment Grand Jury Clause clearly applies. See United States v. Cotton, 535 U.S. 625, 627 (2002). Apprendi relied on Jones to hold that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 530 U.S. at 490. The Apprendi holding does not mention any requirements related to the indictment.
Williams v. Haviland, 467 F.3d 527, 532 (6th Cir. 2006). See also Cotton, 535 U.S. at 627 (“In federal prosecutions, such facts must also be charged in the indictment.“) (citation omitted).
Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. He relies entirely on the fact that the “due process of law” that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). That Amendment hаs not, however, been construed to include the Fifth Amendment right to “presentment or indictment of a Grand Jury” that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We thus do not address the indictment question separately today.
Apprendi, 530 U.S. at 477 n.3 (emphasis added). The Commonwealth relies in part on this aspect of Apprendi to establish that the criminal information was sufficient under
We agree with King that the indictment and criminal information were facially inadequate because neither document alerted King to the Commonwealth‘s intention to
Just as it requires a criminal statute to give fair warning of the conduct proscribed, see, e.g., Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479, 487 (2005), due process requires that the criminal information provide fair notice of every crime of which a criminal defendant is accused, see Commonwealth v. Khorey, 555 A.2d 100, 108 (Pa. 1989);
Pa.R.Crim.P. 560(C) (providing that “[t]he information shall contain the ... citation of the statute or other provision of law that the defendant is alleged therein to have violated“).
The Khorey Court, in turn, observed that “One purpose of аn indictment or an information is to satisfy the requirements of the Sixth Amendment to the United States Constitution and of Article I, Section 9 of the Pennsylvania Constitution, which enunciate the right to formal notice of charges.” 555 A.2d at 108. Whatever the source of the notice guarantee, the salient point is that the United States Supreme Court‘s holding in Apprendi establishes that a fact increasing the statutory maximum, i.e. serious bodily injury in this case, must be treated as an element. Apprendi, 530 U.S. at 490. Later, in Alleyne, the Court held that the rationale in Apprendi applied equally “to facts increasing the mandatory minimum.” Alleyne, 570 U.S. at 111-12. In reaching this conclusion, the Court explained:
It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally
prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime ̶ and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.
Alleyne, 570 U.S. at 112-13. Thus, under the Sixth Amendment, “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.” Id. at 113. Importantly, in terms of notice, the Court stated that “[d]efining facts that increase a mandatory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment[,]” and “preserves the historic role of the jury as an intermediary between the [s]tate and criminal defendants.” Id. at 113-14.
Applying these principles, the Commonwealth in effect prosecuted King for the aggravated crime of attempted murder causing serious bodily injury despite charging him with the crime of attempted murder. The statutory definition of attempted murder does not require proof of serious bodily injury. See
It therefore follows that the charging instrument must include those elements to put the defendant on notice of the crime. This Court in Commonwealth v. Alston, 651 A.2d 1092 (Pa. 1994), explained:
The purpose of an Information or an Indictment is to provide the accused with sufficient notice to prepare a defense, and to еnsure that he will not be tried twice for the same act. An Indictment or an Information is sufficient if it sets forth the elements of the offense intended to be charged with sufficient detail that the defendant is apprised of what he must be prepared to meet, and may plead double jeopardy in a future prosecution based on the same set of events. This may be accomplished through use of the words of the statute itself as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.
Alston, 651 A.2d at 1095-96 (internal citations omitted).
Here, the criminal information plainly put King on notice of the crime of attempted murder. But for purposes of Apprendi, King was convicted of the aggravated crime of attempted murder causing serious bodily injury. Nothing in the indictment or criminal information itself alerted King to the Commonwealth‘s intention to prosecute him of that crime. We therefore hold that when the Commonwealth intends to seek an enhanced sentence for attempted murder resulting in serious bodily injury under
C. Remedy
Having found that the criminal information failed to adequately apprise King of the Commonwealth‘s intention, we turn to the question of remedy. As acknowledged by both parties, the element of serious bodily injury in connection with attempted murder was indeed submitted to the jury and found beyond a reasonable doubt as indicated on the jury‘s verdict sheet. The question becomes whether the absence of that fact from the indictment or information requires a finding that the resulting sentence for the aggravated crime was illegal.
We hold that it does not. That the Commonwealth‘s information was insufficient as a matter of due process notice does not resolve whether the conviction at trial was illegally secured. As previously noted, the indictment sets the stage for trial and what the Commonwealth intends to prove. For the following reasons, we conclude that King was adequately apprised through other means of the Commonwealth‘s intentions and that the charging error was harmless beyond a reasonable doubt.
The United States Supreme Court held in Cotton that Apprendi violations based on the failure to include the relevant facts in a federal indictment do not serve to invalidate the conviction and may be subject to plain error analysis. Therefore, Cotton precludes the notion that a defective criminal information automatically warrants relief. We note that our appellate courts do not apply plain error. See Commonwealth v. Hays, 218 A.3d 1260, 1267 (Pa. 2019) (Saylor, C.J., concurring) (“the Court has abrogated the plain error
We find Cotton particularly instructive. In Cotton, several defendants were federally indicted for conspiracy to distribute and possession with intent to distribute a specified amount of сocaine or cocaine base. Id. at 627. The indictment originally specified the amount of drugs involved was five or more kilograms of cocaine and fifty grams or more of cocaine base. Id. A superseding indictment that expanded the time frame of the conspiracy and the number of participants specified only a “detectable amount” of cocaine and cocaine base. Id. at 628. The indictment thus failed to allege the quantities of drugs that triggered enhanced penalties under the relevant statute. Id. The jury found the defendants guilty but did not make a finding as to the quantity of drugs. Id. Instead, the district court made factual findings regarding the quantities of drugs, which increased the defendants’ statutory maximums from twenty years to no more than life. Id. The defendants did not challenge their sentences on the basis that the drug quantity was not listed in the indictment. Id.
While the defendants’ appeals were pending before the court of appeals, the Court decided Apprendi, which led the defendants to challenge the fact that the quantity of drugs was neither alleged in the indictment nor found by the jury. Id. at 628-29. The Court of Appeals noted that the defendants failed to raise this argument before the district court and assessed the claim for plain error. Id. It then vacated the sentences, ultimately concluding that “because an indictment setting forth all the essential elements of an offеnse is both mandatory and jurisdictional” the court was “without jurisdiction to impose
In lieu of addressing whether the error is subject to any type of harmlessness, King instead relies on the notion that Hopkins and other cases from this Court striking down mandatory minimum statutes in the wake of Alleyne equally apply to
The Commonwealth asserts the employment of special verdicts—or, as expressed at oral argument, the finding of a general verdict with special interrogatories addressing proximity and age—as a way to cure the constitutional deficiencies in the statute. We disagree. First, nothing in
Section 6317 suggests the legislature contemplated such an approach. Second, special verdicts would not cure the notice and appeal provisions ofSection 6317 noted above. Specifically, as, under Alleyne, the factual determinations of proximity and age pursuant toSection 6317 would be elements of a new aggravated offense, the complaint and information/indictment would have to set forth related allegations. See, e.g.,Pa.R.Crim.P. 504 ,560 . This notice requirement could not be remedied by the use of special verdicts.
Hopkins, 117 A.3d at 260.
Accepting King‘s argument that his case involves an application of Hopkins would suggest that the statute is simply unconstitutional. In other words, even if the Commonwealth explicitly cited Since a proper notice would permit the sentence, we agree that the instant error is amenable to harmless error review. We further find that the Commonwealth has met its burden of establishing that the error was harmless beyond a reasonable doubt. Similar to Cotton, the evidence of serious bodily injury in this case was overwhelming and uncontroverted. Moreover, this is not a case where the judge made the requisite finding, as in Cotton, but rather it was stipulated to and found by the jury beyond a reasonable doubt. King never contested the severity of Banks’ injuries, but rather stipulated that, as We also find persuasive the Commonwealth‘s point that its failure to provide formal notice of its intent to seek the enhanced sentence did not affect King‘s choice of defense or execution of that defense, considering King stipulated to Banks’ injuries and instead sought to demonstrate that another unknown individual committed the crime. See Commonwealth v. Holcombe, 498 A.2d 833, 848-49 (finding harmless error where trial court‘s jury charge improperly expanding on the information did not substantially prejudice the defendant by making his prior defense strategy inapplicable to the charge faced under King challenges the imposition of consecutive sentences for the inchoate crimes of attempted murder and conspiracy. He argues that despite being charged and convicted of both conspiracy to commit murder and conspiracy to commit aggravated assault, therе was only one conspiracy under With respect to the number of agreements in this matter, King explains that according to Braverman v. United States, 317 U.S. 49, 53 (1942), a single conspiratorial agreement “cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” King‘s Brief at 28. He maintains that the issue of whether single or multiple conspiracies exist depends on application of the following test: The number of overt acts in common; the overlap of personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the locations in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and the degree to which interdependence is needed for the overall operation to succeed. Id. at 29 (quoting Commonwealth v. Andrews, 768 A.2d 309, 316 (Pa. 2001)). King asserts that analyzing these factors makes clear there was only one agreement in this case, i.e., to murder Banks, and thus only one conspiracy. King‘s Brief at 30. In other words, there was no separate agreement to injure Banks, plus a separate agreement to kill her. Building upon this rationale, King maintains that his single conspiracy conviction must “merge” with attempted murder for sentencing purposes under The Commonwealth responds that King‘s consecutive sentences for attempted murder and conspiracy to commit aggravated assault were not subject to “merger” under We find that King entered into one agreement with his co-conspirator to murder Banks and, because he failed in his attempt to do so, King could not be sentenced to serve separate terms for the inchoate crimes of conspiracy and attempt. Preliminarily, we note that the Commonwealth and Superior Court both theorize that the consecutive sentences were legal at least in part because King was found guilty of conspiracy to commit murder as well as conspiracy to commit aggravated assault. The parties further frame this issue as one of merger. These characterizations are flawed under these circumstances for two reasons. First, the jury did not find King guilty of both conspiracy to commit homicide and conspiracy to commit aggravated assault. A review of the verdict sheet returned by the jury lists seven charges: attempted murder, conspiracy to commit murder, conspiracy to commit aggravated assault, aggravated assault, firearms not to be carried without a license, carrying a firearm on public streets in Philadelphia, and possession of an instrument of crime. The verdict sheet lists a corresponding charge number for each crime. Next to both conspiracy to commit murder and conspiracy to commit aggravated assault is the designation “#2.” This is consistent with the criminal information, which charged six total counts with only one count of conspiracy. Within the language for conspiracy, the Commonwealth listed: “Criminal objective: assault, murder.” Thus, in reality the Commonwealth presented the jury with two separate theories of conspiracy, presumably as a fallback in case the jury found the lack of specific intent to kill. The Commonwealth indicated the case would be submitted to the jury as a general conspiracy count, but King agreed with the judge‘s comment that there were two: [COMMONWEALTH]: Then conspiracy on here it just is general. We— THE COURT: It should say conspiracy to commit attempted murder and conspiracy to commit aggravated assault. [KING]: Conspiracy to commit murder because you can‘t have two offenses. And conspiracy to commit aggravated assault. N.T. 5/25/16, at 175. While any problem with the verdict sheet was agreed to by King, we find that the plenary scope of review permits consideration of what crimes King was actually convicted of for purposes of our legality of sentence review.16 Second, even if we accept that the jury returned a verdict of conspiracy to commit aggravated assault as existing apart from the conspiracy to сommit murder, The Commonwealth‘s legal argument assumes that there existed a separate conspiracy to commit aggravated assault that was not subsumed within the conspiracy to kill. But a person cannot conspire to kill a targeted individual and not concurrently conspire to commit aggravated assault against the same individual. This Court has held that “[t]he act necessary to establish the offense of attempted murder—a substantial step towards an intentional killing—includes, indeed, coincides with, the same aсt which was necessary to establish the offense of aggravated assault, namely, the infliction of serious bodily injury.” Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). As such, the single object of both the attempt and conspiracy convictions was Banks’ murder, and thus, pursuant to Rather than follow the unambiguous statutory language of Kelly was convicted and sentenced concurrently for, inter alia, attempted murder and conspiracy to commit aggravated assault arising from a shooting incident involving one victim. Kelly, 78 A.3d at 1145. The majority reasoned that the offenses of attempted murder and conspiracy to commit aggravated assault are not designed to culminate in the commission of the same crime, specifically, murder. Id. at 1145. The majority further noted that these offenses would not merge under traditional merger principles, as each offense includes an additional element absent from the other. Id. “Further, attempted murder and conspiracy to commit aggravated assault both include additional separate elements and therefore do not merge.” Id. (citing Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994)). We disapprove of the Superior Court‘s injection of Blockburger merger principles in resolving a As we determine that the Blockburger merger test is not the appropriate test, we now address two cases from this Court applying This Court in Graves, cited by King, addressed a circumstance in which the defendant was convicted and sentenced for criminal conspiracy and criminal solicitation for his part in an incident in which he conspired with fellow gang members to assault three police officers and also individually solicited a gang member to murder one of the police officers. Consecutive sentences were imposed for the inchoate conspiracy and solicitation crimes. This Court approved of the two sentences, holding that “the record demonstrates that each [crime] was directed at a different purpose.” Id. at 1198. The conspiracy was “for the purpose of furthering an assault with several co-defendants on three police officers,” while the solicitation “had as its object the death of one of the officers.” Id. (emphases added). As such, the intended culmination of the two inchoate offenses was not the same crime, but rather two different crimes (assault and murder). We agree that Graves supports King‘s position as there were two distinct objectives in Graves. Furthermore, those objectives were different with respect to individual victims, further establishing the presence of multiple and distinct crimes for purposes оf In sum, the traditional merger test has no application here because the By enacting Justices Baer, Todd and Wecht join the opinion. Chief Justice Saylor files a concurring and dissenting opinion.III. Consecutive Sentences for Inchoate Crimes
A. The Arguments of the Parties
Notes
At least one federal case after Cotton applied, in a consolidated appeal, the Cotton plain error standard to unpreserved errors and the harmless error standard to preserved errors:
For the appellants who did not object at trial, Cotton requires us to apply plain-error analysis and, more specifically, to assess the evidence of drug quantity to determine whether the sentencing error seriously affects the integrity, fairness, or public reputation of the judicial proсeedings. If the evidence supporting the omitted fact is “overwhelming” and “essentially uncontroverted,” then the error cannot be said to seriously affect the integrity of the proceedings. Cotton, 122 S.Ct. at 1786.
For the appellants who objected at sentencing, we apply harmless error analysis.
United States v. Baptiste, 309 F.3d 274, 277 (5th Cir. 2002). “Harmless error, however, is a rule of constitutional law, whereas plain error is a rule of appellate procedure.” United States v. Phipps, 319 F.3d 177, 189 (5th Cir. 2003).
Justice Mundy asserts that the verdict sheet establishes that King was in fact convicted of two counts of conspiracy, freeing the trial court to impose sentence on the “separate” conspiracy to commit aggravated assault. See Dissenting Op. at 2 (Mundy, J.). The Dissent does not address the fact that the criminal information alleged within the sole count of conspiracy that King sought to “assault, murder.” Because any conspiracy to kill neсessarily subsumes an intent to commit serious bodily injury, we disagree with the position that two separate conspiracies can emerge from the one charged conspiracy count.
Indeed, our analysis on this point is consistent with our disposition of King‘s first claim, holding that King was on fair notice of the Commonwealth‘s intent to proceed on the enhanced sentence of attempted serious bodily injury. Likewise, the criminal information informed King only that the Commonwealth sought to prove one conspiracy. On its terms, the information alleged that the objective of the conspiracy was to kill, with the conspiracy to commit assault a lesser-included offense that was available to the jury if it found the lack of a specific intent to kill. Cf. Commonwealth v. Kelly, 78 A.3d 1136, 1146 (Pa. Super. 2013) (“In Commonwealth v. Riley, 811 A.2d 610 (Pa.Super.2002), this Court held that where the jury renders a general verdict and there is an absence of clear evidence of the jury‘s intent, a defendant can only be sentenced for conspiracy to commit the less serious underlying offense.“).
Under the Commonwealth‘s merger analysis,
Similarly, Justice Mundy‘s conclusion that the crimes of attempted murder and conspiracy to commit aggravated assault are “not necessarily designed to culminate in the commission of the same crime in the narrowest sense, as the object crime of murder requires the specific intent to kill, while aggravated assault merely requires the intent to cause serious bodily,” Dissenting Op. at 3 (Mundy, J.), is simply an alternative way of saying that the inchoate crimes at issue here do not merge under Blockburger.
The presence of an additional victim is significant. By way of comparison, every robbery necessarily subsumes a theft. According to the Commonwealth‘s argument, a defendant who conspired with another to commit a robbery against one victim could be sentenced separately if the Commonwealth happened to charge (1) attempted robbery and (2) conspiracy to commit theft, but could not be sentenced separately if the Commonwealth charged (1) attempted robbery and (2) conspiracy to commit robbery. Where the actors intend to rob multiple victims,
Under the factual circumstances presented in this case, the notion that there was an independent aggravated assault separable from the attempted murder is a pure fiction. In fact, as previously stated, the Commonwealth‘s sentencing memorandum agreed that there was no separate aggravated assault, as it listed all of the charges and stated: “Conspiracy to Commit Aggravated Assault—merges with Conspiracy to Commit Murder.”
This represents a concession of the obvious: King and Porter necessarily conspired to commit an aggravated assault against Banks when they conspired to kill her. Cf. Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). Accordingly, the inchoate crimes constituted “conduct designed to commit or to culminate in the commission of the same crime.”
Nor is it unsurprising that the General Assembly chooses to punish more harshly those who succeed than those who attempt but fail. Compare