Com. v. Barnes, K. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KWAME LAMAR BARNES, : No. 947 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, January 30, 2014,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0000426-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016
Kwame Lamar Barnes appeals from the judgment of sentence imposed
following his convictions of criminal attempt-homicide, aggravated assault,
kidnapping, and recklessly endangering another person.1 We vacate and
remand for resentencing.
We assume the parties’ familiarity with the facts of the case. Briefly,
the charges stem from an incident where Barnes choked the victim to
unconsciousness.
On May 18, 2012, Barnes was sentenced to a term of 20 to 40 years’
imprisonment for his conviction of attempted homicide, a consecutive term
of 2½ to 5 years for aggravated assault, and a consecutive term of 2½ to
1
The jury found Barnes not guilty of terroristic threats.
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5 years for kidnapping. Following a direct appeal, a panel of this court
vacated judgment of sentence and remanded for resentencing, finding that
the conviction of aggravated assault should have merged with the attempted
homicide conviction since the crimes arose from a single set of facts.
Commonwealth v. Barnes, No. 691 MDA 2013, unpublished memorandum
(Pa.Super. filed December 3, 2013).
Thereafter, on January 30, 2014, Barnes was re-sentenced to the
following: 20 to 40 years’ for criminal attempt homicide and a consecutive
sentence of 5 to 10 years’ for kidnapping. On February 5, 2014, Barnes filed
a post-trial motion. On May 12, 2014, the trial court denied the motion. On
June 4, 2014, Barnes filed a notice of appeal and complied with the trial
court’s order to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
The following issues have been presented for our review:
[1.] Apprendi doctrine. The United States
Constitution mandates that juries should
decide all facts that increase a crime’s
statutory maximum sentence. Here, a jury
convicted Barnes of attempted murder,
generally—a 20 year maximum sentence. If
the trial court submits the crime of attempted
murder resulting in serious bodily injury to the
jury, the maximum sentence increases to
40 years. But Barnes court didn’t submit this
element. Is Barnes’ legal attempted murder
maximum sentence 20 years?
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[2.] Substantial questions. To appeal the
discretionary aspects of a sentence, an
appellant must present a “substantial question”
why the sentencing court’s actions are
inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying
the sentencing process. This sentencing court:
(1) increased a crime’s sentence where the
only changed fact was the exercise of appellate
rights; and (2) failed to provide reasons for its
new sentence on the record. Does Barnes[]
raise substantial questions?
[3.] Judicial Vindictiveness. A presumption of
vindictiveness arises where a sentencing court
imposes a more severe sentence absent
objective evidence justifying an increased
sentence. This trial court doubled Barnes’
kidnapping sentence at his resentencing. It
based the increased sentence on the same
facts and information as at the time of the
original sentence. Is Barnes’ new kidnapping
sentence void?
[4.] Record reasons for an imposed sentence.
On resentencing, following remand, the court
shall make as a part of the record, and disclose
in open court at the time of sentence, a
statement of reason or reasons for the
imposed sentence. In Barnes’ five-minute
resentencing this record does not make such a
statement. Should this Court vacate Barnes’
current sentence and resentence him to
provide a reasoned statement?
Barnes’ brief at 8-9.
The first issue presented concerns the sentence imposed for the
conviction of criminal attempt homicide and involves the application of
Section 1102 of the Crimes Code, and in particular, the “serious bodily
injury” requirement. “[T]he statute imposes a condition precedent to the
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imposition of a maximum term of imprisonment of up to 40 years,
specifically, that ‘serious bodily injury’ must have resulted from the
attempted murder. Otherwise, the sentence shall be not more than
20 years.” Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super.
2006), appeal denied, 923 A.2d 1173 (Pa. 2007). Barnes concludes that
the sentence imposed is illegal under Apprendi v. New Jersey, 530 U.S.
466 (2000), wherein the United States Supreme Court held 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, and proved beyond a reasonable doubt.” Id. at 490. Barnes notes
that the docket sheet does not show that he was charged with criminal
attempt resulting in serious bodily injury; nor does the verdict sheet in this
case mention serious bodily injury with respect to the attempted homicide
charge. Barnes also contends that the jury instruction does not contain any
instruction as to making a finding of whether serious bodily injury resulted
from the criminal attempt; rather, the instruction referenced aggravated
assault. His argument suggests a finding cannot be implied by virtue of the
fact that the jury found him guilty of aggravated assault and the court
instructed the jury on serious bodily injury.
Barnes’ claim involves the legality of the sentence. Commonwealth
v. Aponte, 855 A.2d 800, 802 n.1 (Pa. 2004). “Issues relating to the
legality of a sentence are questions of law . . . Our standard of review over
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such questions is de novo and our scope of review is plenary.”
Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)
(citation omitted).
We agree with Barnes that the failure of the jury to render a separate
finding regarding serious bodily injury requires that we vacate the conviction
and remand for resentencing. We find support for our conclusion in
Johnson, supra. In Johnson, this court held that a defendant convicted of
attempted murder and aggravated assault was sentenced illegally where the
jury did not determine that serious bodily injury occurred relative to the
attempted murder charge. The trial court therein concluded that serious
bodily injury was proven because the jury convicted the defendant of
aggravated assault causing serious bodily injury. The Johnson court found
that the jury’s consideration of serious bodily injury for the aggravated
assault count was not relevant to the attempted murder conviction.
Relying on Apprendi, supra, the Johnson court held that it was not
the prerogative of the trial court but solely the responsibility of the jury to
find, beyond a reasonable doubt, whether a serious bodily injury resulted
from the attempted murder. The court held that to sentence a defendant to
a maximum term of incarceration of 40 years for attempted murder, the jury
must determine that the Commonwealth proved serious bodily injury as it
specifically pertained to the attempted murder charge.
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Instantly, as in Johnson, “the jury was never presented with, nor
rendered a decision on, the question of whether a serious bodily injury
resulted from the attempted murder.” Johnson, supra at 67 (footnote
omitted). Thus, we are constrained to vacate the sentence on this count
and remand for resentencing.
Barnes next contends that the trial court erred by sentencing him to a
more severe sentence for kidnapping on remand than his original sentence.
He avers that such action results in a presumption of vindictiveness.
(Barnes’ brief at 26.)
“Challenges to the discretionary aspect of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa.Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[This court conducts] a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant's brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Id. (citation omitted).
Instantly, Barnes filed a timely notice of appeal, preserved his claim in
a timely post-sentence motion, and included in his appellate brief a separate
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Rule 2119(f) statement. As such, he is in technical compliance with the
requirements to challenge the discretionary aspect of a sentence. We will
proceed to determine whether a substantial question has been presented for
our review. Challenges to the length of the sentence following resentencing,
citing judicial vindictiveness, implicate a discretionary aspect of the
sentencing process. See Commonwealth v. Tapp, 997 A.2d 1201,
1202-1203 (Pa.Super. 2010); Commonwealth v. Robinson, 931 A.2d 15,
20-21 (Pa.Super. 2007) (en banc). Accordingly, we grant review of Barnes’
claim.
When a due process violation is raised regarding resentencing, this
court must satisfy itself that an increase in a sentence is not the result of
judicial vindictiveness. See Commonwealth v. Walker, 568 A.2d 201(Pa.Super. 1989), disapproved of on other grounds by Robinson,
supra.2 In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on
other grounds by Alabama v. Smith, 490 U.S. 794 (1989), the United
States Supreme Court stated:
Due process of law, then, requires that
vindictiveness against a defendant for having
successfully attacked his first conviction must play
no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may
2
Walker and prior cases had held that a claim of judicial vindictiveness in
resentencing was a challenge to the legality of the sentence that could be
raised as a matter of right. In Robinson, supra, an en banc panel of this
court held claims of judicial vindictiveness in sentencing, and any due
process concerns arising therefrom, implicate discretionary aspects of
sentence.
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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.
In order to assure the absence of such a
motivation, we have concluded that whenever a
judge imposes a more severe sentence upon a
defendant after a new trial, the reasons for his doing
so must affirmatively appear. Those reasons must
be based upon objective information concerning
identifiable conduct on the part of the defendant
occurring after the time of the original sentencing
proceeding. And the factual data upon which the
increased sentence is based must be made part of
the record, so that the constitutional legitimacy of
the increased sentence may be fully reviewed on
appeal.
Id. at 725-726 (footnote omitted). While Pearce dealt with an increased
sentence following the grant of a new trial, this court held that the same
rationale applies where the original sentence is vacated and the second
sentence is imposed without an additional trial. See Commonwealth v.
Greer, 554 A.2d 980, 987 n.7 (Pa.Super. 1989).3 Absent evidence an
increase in a sentence is justified due to objective information concerning
the case, the presumption of vindictiveness cannot be rebutted.
Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa.Super. 1999).
3
We disagree with the trial court that the instant case is distinguishable
from Pearce based on the fact that appellant did not proceed to a new trial
but rather was resentenced after this court found a sentencing error. (Trial
court opinion, 5/12/14 at 4.)
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Barnes was originally sentenced on the kidnapping conviction to a
consecutive term of 2½ to 5 years of incarceration; after remand, the
conviction of aggravated assault merged with the attempted homicide
conviction and the kidnapping sentence was doubled to a consecutive five to
ten years of imprisonment. In its opinion, the trial court explained that it
“merely maintained its original sentencing structure by increasing the
kidnapping [sentence] when the aggravated assault charge merged into the
criminal attempt charge. In doing so, the court was able to maintain the
original sentence.” (Trial court opinion, 5/12/14 at 4.)
We find Barnes’ argument that he received an enhanced sentence to
be questionable. Barnes’ argument requires us to only look at one part of
his new sentence and compare it to one part of his old sentence without
examining the overall sentencing scheme of both the new and old sentences.
Barnes fails to note the trial court’s overall sentencing scheme. Before his
successful appeal, his aggregate sentence was 25 to 50 years’
imprisonment; after his successful appeal, the trial court resentenced Barnes
to this very sentence. Accordingly, he was not the victim of a vindictive
sentence on the part of the trial court. See Commonwealth v. Vanderlin,
580 A.2d 820 (Pa.Super. 1990) (recognizing authority of the trial court, after
reducing sentence on one count to accord with the law, to impose greater
sentence on another count in order to insure appellant remained in prison
for a certain length of time); Commonwealth v. Grispino, 521 A.2d 950-9-
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(Pa.Super. 1987) (noting that trial court does not violate double jeopardy
principles by increasing sentence on remand where aggregate term is not
increased).
In the third issue, Barnes states that the trial court abused its
discretion when it resentenced him as it failed to provide a statement in
open court of the reasons for the sentence imposed. Due to the disposition
of appellant’s first claim, we need not address this issue. However, we
remind the trial court that “[r]eimposing a judgment of sentence should not
be a mechanical exercise.” Commonwealth v. Losch, 535 A.2d 115(Pa.Super. 1987). When a sentence is vacated and the case remanded for
resentencing, the sentencing judge should start afresh; the requirement to
state reasons for the imposition of sentence applies both to the original
sentencing hearing and to all subsequent resentencing hearings. Id. at
123 n.9.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Stabile, J. joins the Memorandum.
Shogan, J. files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
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