Com. v. Kemp, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAMUEL KEMP :
:
Appellant : No. 2618 EDA 2017
Appeal from the Judgment of Sentence July 6, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013505-2014
BEFORE: PANELLA, J., PLATT, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2018
Samuel Kemp appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas. Kemp alleges the trial court
abused its discretion by imposing on remand the same total aggregate term
of imprisonment as was imposed during his initial sentencing hearing. We
affirm.
On October 8, 2011, while driving under the influence of narcotics, Kemp
hit a man with his car. Kemp was arrested and charged with various offenses
arising from this incident. Following a bench trial, the trial court convicted
Kemp of aggravated assault, possessing an instrument of crime (“PIC”),
simple assault, two counts of recklessly endangering another person,
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
Retired Senior Judge assigned to the Superior Court.
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aggravated assault by vehicle while driving under the influence (“aggravated
assault-DUI”), accidents involving death or personal injury while not properly
licensed, driving under the influence–general impairment (“DUI”), three
counts of DUI–controlled substance, and driving without a license. The trial
court sentenced Kemp to 9 to 18 years’ imprisonment, followed by 2 years’
probation, for aggravated assault, a consecutive term of 7 years’ probation
for aggravated assault-DUI, and a concurrent term of 3 months to 5 years’
imprisonment for DUI-combined impairment. Kemp received no further
penalties on his additional convictions.
Kemp appealed his sentence, alleging, in part, that the Commonwealth
presented insufficient evidence to support his aggravated assault conviction.
A panel of this Court agreed, reversed Kemp’s conviction for aggravated
assault, vacated his judgment of sentence, and remanded to the trial court for
resentencing on the remaining convictions.1 See Commonwealth v. Kemp,
No. 873 EDA 2016 at 19-20 (Pa. Super. filed Feb. 17, 2017) (unpublished
memorandum).
At resentencing, the trial court sentenced Kemp to 5 to 10 years’
imprisonment for aggravated assault–DUI, 3.5 to 7 years’ imprisonment for
accidents involving death or personal injury while not properly licensed, and
6 to 12 months’ imprisonment for PIC, followed by 2 years’ probation. As the
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1 The Court also determined that Kemp’s sentence for DUI-combined
impairment should have merged with his sentence for aggravated assault-DUI
for sentencing purposes. See id.
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trial court ordered Kemp to serve these sentences consecutively, the
aggregate sentence of 9–18 years’ imprisonment mirrored the aggregate
sentence of imprisonment imposed at Kemp’s first sentencing hearing.2 This
timely appeal follows.
On appeal, Kemp contends the trial court abused its discretion in
imposing more severe sentences for aggravated assault–DUI, accidents
involving death or personal injury while not properly licensed, and PIC than it
did during his original sentencing. Kemp argues that the increase in sentence
could only have been caused by judicial vindictiveness, as he received the
same sentence on remand despite the reversal of his most serious conviction.
Ultimately, Kemp asserts that this led to an unduly harsh and excessive
sentence.
Kemp concedes his argument raises a challenge to the discretionary
aspects of his sentence. See Appellant’s Brief, at 25. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted). “An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test.”
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2 However, Kemp’s aggregate sentence on resentencing included only 2 years’
probation—7 less than the probationary sentence Kemp received during his
initial sentencing.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted). This test requires us 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; brackets in original).
Here, Kemp has met the first three parts of the test by filing a timely
notice of appeal, preserving his challenge in a post-sentence motion, and
including the requisite Rule 2119(f) statement in his brief. Thus, we look to
his Rule 2119(f) statement to determine whether he has met the fourth part
of this test by raising a substantial question for our review.
To raise a substantial question, Kemp must show that his “sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)
(citation omitted). Kemp contends that his sentence was a result of judicial
vindictiveness, as the trial court improperly considered his previous sentence
in fashioning his sentence on remand.3 We have previously found that this
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3 Kemp’s 2119(f) statement spanned 15 pages and did not provide clear
arguments as to what he believed raised substantial questions for our review.
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assertion raises a substantial question for our review. See, e.g.,
Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010) (finding
claims of judicial vindictiveness constitute substantial questions for review).
As such, we will address Kemp’s claim.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. 2006) (citation
omitted).
Kemp contends the imposition of the same sentence on remand as was
originally imposed was a result of judicial vindictiveness.
Due process of law … 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 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.
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See Appellant’s Brief, at 25-40. Therefore, we have discerned Kemp’s
arguments to the best of our ability. To the extent Kemp intended to challenge
the consecutive nature of his sentences and/or the trial court’s failure to
adequately consider mitigating factors, we note that these claims do not even
raise a substantial question for our review. See Commonwealth v. Moury,
992 A.2d 162, 171-172 (noting the imposition of consecutive rather than
concurrent sentences only raises a substantial question in the most extreme
circumstances); Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (claim of inadequate consideration of mitigating factors does not raise
a substantial question for review).
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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 part of the record, so that the
constitutional legitimacy of the increased sentence may be fully
reviewed on appeal.
North Carolina v. Pearce, 395 U.S. 711, 725-726 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989).
Our Court has held that “Pearce’s rationale for providing reasons on
the record applies also when the original sentence is vacated and a second
sentence is imposed without an additional trial.” Commonwealth v. Barnes,
167 A.3d 110, 123 (Pa. Super. 2017) (citation omitted). “Absent evidence
[that] a sentencing increase is justified due to objective information
concerning a defendant’s case, the presumption of vindictiveness cannot be
rebutted.” Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super.
1999).
However, as recently noted by an en banc panel of our Court, this
presumption is rebutted where a trial court imposes higher sentences on
certain counts during resentencing to reach the same aggregate sentence as
previously imposed and preserve its sentencing scheme. See Barnes, 167
A.3d at 124 (noting, “a judge can duplicate the effect of the original sentencing
plan by adjusting the sentences on various counts so that the aggregate
punishment remains the same”). In reaching this conclusion, the Barnes
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Court analyzed our decision in a remarkably similar case, Commonwealth v.
McHale, 924 A.2d 664 (Pa. Super. 2007), overruled in part on other grounds
by Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007):
In … McHale …, we upheld the trial court’s resentencing of the
defendant when his conviction on the most serious charges, two
counts of aggravated assault, previously had been reversed based
on insufficient evidence. After remand, to maintain the same
aggregate sentence as originally imposed, the trial court increased
the overall sentence on the surviving counts. Noting that the
aggregate sentence remained unchanged, we upheld the new
sentence. In doing so, we noted:
[O]ur conclusion is not altered by the fact that remand
and resentencing were prompted by reversal of two of
[the defendant’s] convictions…. Whether remand is the
result of reversal of one or more convictions or vacation
of an illegal sentence, we conclude that the trial court
has the same discretion and responsibilities in
resentencing.
Barnes, 167 A.3d at 124-125 (internal citations omitted; brackets in original).
Consistent with Barnes and McHale, it is readily apparent that the trial
court increased Kemp’s sentence on aggravated assault-DUI, accident
involving death or personal injury while not properly licensed, and PIC not out
of vindictiveness, but instead in an attempt to preserve the integrity of its
original sentencing scheme by imposing the same aggregate sentence of
imprisonment. As a trial court’s desire to preserve its previous sentencing
scheme defeats the presumption of vindictiveness, and Kemp’s sentence was
not increased at resentencing, we do not find evidence that his sentence was
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a result of judicial vindictiveness. Therefore, we do not find that the trial court
abused its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/18
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