COMMONWEALTH of Pennsylvania v. Ronald WALKER, Appellant.
Superior Court of Pennsylvania
Argued March 7, 1989. Filed Dec. 26, 1989.
568 A.2d 201
Decree affirmed. Case remanded. Jurisdiction relinquished.
Thomas E. Waters, Jr., Dist. Atty., Blue Bell, for Com., appellee (submitted).
Before CAVANAUGH, BECK and CERCONE, JJ.
OPINION BY BECK, Judge *:
This case presents significant questions concerning the power of a judge to increase the severity of the punishment for a crime after the initial sentencing hearing.
The relevant facts arе not in dispute. On August 11, 1985, Ronald Walker gained entry to the home of his estranged wife and held her hostage at gunpoint for five hours. Following a jury trial in the Court of Common Pleas of Montgomery County, Walker was convicted of possessing an instrument of crime, simple assault, recklessly endangering another person, unlawful restraint, and criminal trespass.
Walker initially filed a notice of appeal but the appeal was discontinued. Walker then filed a pro se petition under the Post Conviction Hearing Act (PCHA).1 New counsel was appointed and a supplementary petition was filed. Among the issues presented was a claim that Walker‘s conviction for simple assault merged with his conviction for recklessly endangеring another person.
Appellant challenges the legality of his new sentence under the due process and double jeopardy clauses of the federal constitution.2 These claims merit serious consideration.
One can imagine Walker‘s surprise and confusion at the PCHA hearing. He was first told that his petition for relief had been granted as to his sentencing claim. He was then notified that аs a result of filing a meritorious PCHA petition, he would now be subject to an additional five years imprisonment. We conclude, nonetheless, that under the unusual facts of this case, the PCHA court did not exceed the limits of its authority by increasing appellant‘s maximum prison term. Accordingly, we affirm the enhanced sentence.
I.
Appellant contends that the PCHA court violated the due process protection against enhanced sentences first recognized by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Pearce Court held that once a defendant has been sentenced, his sentence may be increased only if the longer sentence was not motivated by judicial vindictiveness. The Court further emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id., 395 U.S. at 725, 89 S.Ct. at 2080 (footnote omitted). In Pearce, the defendants successfully appealed their judgments of sentence and were reconvicted and given increased sentences following a new trial. The Court viewed these increases as unconstitutional penalties that had been imposed upon the defendants for exercising their right to judicial review.
The instant case arises in an unusuаl procedural posture. We deal here with a defendant who did not pursue an appeal from his original judgment of sentence but instead received a new sentencing hearing after filing a PCHA petition. Pearce, however, is not limited to situations in
We must therefore consider whether appellant‘s new sentence may have been tainted by judicial vindictiveness. In some cases, the fact that a sentencing authority punished the defendant for an impermissible reason will be apparent from the record. However, in most cases, it is exceedingly difficult to establish that a judge has retаliated against a defendant for exercising legal rights. See Pearce, 395 U.S. at 725 n. 20, 89 S.Ct. at 2080 n. 20. The Pearce Court addressed this problem by establishing, subject to certain exceptions, a presumption that an increase in sentence is the product of an improper motive on the part of the sentencing authority. We must examine whether this presumption of judicial vindictiveness applies to the instant case, and if it does, whether the trial court rebutted the presumption.
Whether a presumption of vindictiveness arises depends upon the factual context in which resentencing has taken place. The presumption does not apply in the absence of a reasonable likelihood that the increase in sentence was the product of actual vindictiveness on the part of the sentenc
The McCullough Court relied on three factors in finding that the Pearce presumption was not implicated. First, the enhanced sentence was imposed by a judge, while the original sentence was imposed by a jury. Second, the same judge who imposed the enhanced sentence had previously granted the defendant a new trial. Third, the defendant had the option оf being resentenced by a jury and instead chose to be resentenced by a judge.
The instant case is readily distinguishable from McCullough. The trial judge who enhanced appellant‘s sentence was the same judge who had imposed the original sentence. This trial judge did not grant appellant‘s request for a new trial; the only “relief” that the judge provided was to replace a defective sentence of four to fourteen years incarceration plus seven years probation with a harsher
Appellant filed a рetition alleging that the trial judge had committed an error of law when he imposed the original sentence. The trial judge responded by increasing the maximum prison term of the aggregate sentence by five years. Under these circumstances, there is a genuine danger that the judge‘s conduct may have been influenced by vindictiveness toward the defendant. Moreover, the trial judge‘s action in this case may deter other defendants from challenging their sentences. One should not underestimate the chilling effect on a defendant‘s right to seek judicial review produced by a trial court‘s decision to cure a defect in a sentence by increasing its severity. We therefore conclude that where, as here, a court responds to a defendant‘s motion to vacate a sentence by increasing the severity of the aggregate sentence, the use of the Pearce presumption is clearly warranted.3
In the instant case, the trial judge stated on the record at the resentencing hearing that his sole objective was to achieve the same purpose as his original sentence. Upon resentencing, a court has a valid interest in preserving the integrity of a prior sentencing scheme. See Commonwealth v. Greer, 382 Pa.Super. 127, 143, 554 A.2d 980, 988 (1989).4 A judge need not ignore the fact that one count of
In the case sub judice, however, the trial judge‘s options were limited. As noted above, the court originally sentenced appellant to consecutive terms of one to five years for unlawful restraint, one to five years for possessing an instrument of crime, one to two years for recklessly endangering another person, one to two years for simple assault, and seven years prоbation for criminal trespass. The aggregate sentence was four to fourteen years imprisonment plus seven years probation. This sentence reflected the serious nature of appellant‘s acts of violence. For each crime, the court had imposed a maximum term of the greatest length permitted by the law. The court mitigated its punishment only insofar as appellant was given a probationary sentence, rather than a sentence of imprisonment, on the criminal trespass count.
The trial court concluded that a certain minimum level of punishment was essential in order for the penalty for appellant‘s crimes to have its intended deterrent and rehabilitative effect. Consistent with this view, the court could not impose a less severe punishment than the aggrеgate sentence appellant had received at the original sentencing hearing. Furthermore, it was not possible for the court to impose the same aggregate sentence appellant had received at the original sentencing hearing. Under these unique circumstances, an increased aggregate sentence was necessary to preserve the original sentencing scheme. We therefore find that appellant‘s enhanced sentence was not motivated by judicial vindictiveness, and that appellant is not entitled to relief under Pearce.
II.
Appellant also argues that the trial court violated the double jeopardy clause of the fifth amendment. The double jeopardy clause is applicable to the states through
It is well established that the double jeopardy clause does not bar an increase in the length of a sentence under all circumstances. In the seminal case of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court upheld the constitutionality of a federal statute that authorized an increase in the defendant‘s sentence following an appeal by the prosecution. In doing so, the Court specifically noted, “[a]lthough it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.” Id. at 139, 101 S.Ct. at 438. Following DiFrancesco, several federal courts have held that the double jeopardy clause prohibits an increase in punishment where the defendant does have a “legitimate expectation of finality” at the time of the original sentencing hearing. United States v. Fogel, 829 F.2d 77, 89 n. 10 (D.C.Cir.1987) (collecting cases); see Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 2531-33, 105 L.Ed.2d 322, 338-40 (1989) (Scalia, J., dissenting). Other courts have found that a defendant‘s interest in the finality of a sentence is protected by the due process clause of the fourteenth amendment rather than by thе double jeopardy clause. See United States v. Lundien, 769 F.2d 981 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986).5
This reasoning is supported by the decision of the Sixth Circuit Court of Appeals in Gauntlett v. Kelley, 849 F.2d 213 (6th Cir.1988). In Gauntlett, a convicted sex offender was sentenced to a term of probation on condition that he take a drug that decreases sexual desire. The judge expressly noted at sentencing that if drug treatments were not available, he would have sentenced the defendant to a term of imprisonment. The defendant challenged the legality of the drug treatment condition, and his probationary sentence was vacated. On remand, the trial court then resentenced the defendant to a term of imprisonment. On appeal from the prison sentence, the circuit court held that the resentencing was constitutional since it did not transgress the defendant‘s legitimate expectation of finality. Gauntlett indicates that once a defendant succeeds in invalidating his original sentence, he cannot object to an increase in sentence, at least where the incrеase was imposed in order to effectuate the intent of the judge at the original sentencing hearing and was necessary to achieve that purpose. Such is the case in the instant proceeding, and therefore appellant‘s double jeopardy claim must fail.
III.
Appellant also raises a number of other issues on appeal. We have little difficulty in concluding that these additional claims are without merit.
Appellant contends that the punishment he received for his crimes was harsh and excessive. This challenge implicates a discretionary aspect of sentence rather than a question of sentence legality. The right to appeal from a discretionary aspect of sentence is not absolute. An appeal
Appellant raises several challenges to the decisions of the trial judge at trial and during pre-trial proceedings. He claims that the trial court erred by: 1) conducting certain pre-trial hearings during the defendant‘s absence; 2) failing to sustain defense objections to testimony by the victim; 3) denying a motion for a sidebar conference; 4) denying a motion for mistrial following the admission into evidence of testimony by the victim; 5) denying a motion for dismissal of charges under the doctrine of collateral estoppel; and 6) refusing to grant relief on the grounds that the verdict was against the evidence and against the weight of the evidence on the criminal trespass charge. As to these issues, we affirm on the basis of the trial court opinion.
Finally, appellant maintains that his trial counsel provided ineffective assistance. He argues that counsel was ineffective for failing to make a motion for mistrial in a timely
Judgment of sentence is affirmed.
CAVANAUGH, J., files dissenting opinion.
CAVANAUGH, Judge, dissenting.
I respectfully dissent because the majority opinion permits the court below to increase the total sentence of imprisonment imposed in circumstances that are legally impermissible. The appellant was originally sentenced to an aggregate term of four to fourteen years imprisonment for various offenses, and seven years probation for criminal trespass.
Following a Post Conviction Hearing Act petition, the court dеtermined that it had erred in sentencing the defendant to one to two years imprisonment for simple assault and vacated the sentence for that offense. It then replaced the sentence of probation for criminal trespass with a sentence of one to seven years imprisonment. Consequently, the new sentence was for a term of imprisonment of four to nineteen years.
The court below and the majority opinion justify the increase in the sentence on the basis that the trial court intended to carry out its original sentencing scheme after it properly realized that it erred in imposing a separate sentence for simple assault and recklessly endangering another
In my opinion, the increase in sentence violates the appellant‘s rights to due process of law. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) established the principle that due process requires that vindictiveness against a defendant must play no part in resentencing. In order to assure that there is nо vindictiveness in increasing a sentence, the trial judge must affirmatively state justifiable reasons for doing so, otherwise, there is a presumption that the sentence was increased for vindictive purposes. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The recent case of Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) held that where there is no likelihood of vindictiveness, the burden is on the defendant to prove actual vindictiveness. In that case, the defendant was granted a new trial after he succeeded in withdrawing his guilty plea. His sentence after a jury trial was greater than it would
In thе case before us, the defendant did not receive a new trial and no additional facts were brought to the court‘s attention. All the defendant did was properly complain that the trial judge erred in imposing separate sentences for assault and recklessly endangering another person. The court agreed and then increased the sentence for criminal trespass from seven years probation to one to seven years imprisonment.
The majority cites Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989) to sustain the proposition that in resentencing, a court has a valid interest in preserving the integrity of a prior sentencing scheme. In Greer, supra, the defendant was sentenced by two different judges for factually similar but unrelated offenses. Judge Erb vacated his sentence and then resentenced the defendant for a term of imprisonment to run consecutively to that imposed by Judge Cassimatis. We stated at 382 Pa.Super. 141, 554 A.2d 980:
However, it is abundantly clear from the record that the trial court, in effect, did not impose a harsher sentence. At the time of the original sentencing, it was the intention of the sentencing judges to have the sentences at 1009 C.A.1979 and 1060 C.A.1979 run consecutively. Instantly, Judge Erb‘s decision to have the present sentences run consecutively to those imposed by Judge Cassimatis merely gives effect to the original sentencing scheme. Simply put, the appellant will first serve the sentences imposed by Judge Cassimatis at 1060 C.A.1979 and thеn will serve the sentences imposed by Judge Erb, rather than vice versa as originally intended. (Emphasis added.)
In the case before us, the sentence to imprisonment was substantially increased and did not merely carry out the original sentencing scheme. For these reasons, I dissent and would remand for resentencing.
Notes
This reasoning would not support a refusal to apply the Pearce presumption where the judge who had presided at trial and had imposed the original judgment of sentence responded to the defen- dant‘s challenge to that sentence by increasing its severity. In such a case, it is not likely that upon resentencing the judge would be aware of significant information concerning the defendant‘s character or his crime that was not available at the time of the original sentencing hearing. Nor is it likely that the basis for imposing a lenient sentence at the time of the original sentencing hearing would have been substantially undermined.Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.... As this case demonstrates, in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant‘s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present. Alabama v. Smith, 109 S.Ct. 2201, 104 L.Ed.2d at 874 (citations omitted).