Com. v. Johnson, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONNIE JOHNSON :
:
Appellant : No. 1326 MDA 2018
Appeal from the Judgment of Sentence Entered April 26, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002195-1998
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED: OCTOBER 16, 2019
Ronnie Johnson appeals pro se1 from the April 26, 2018 judgment of
sentence of thirty years to life imprisonment that was imposed after he was
resentenced on a 1999 conviction for first-degree murder. We affirm in part,
vacate in part, and remand with instructions.
The conviction arose out of events that transpired on May 25, 1998,
when Appellant was seventeen years old. Appellant and his co-defendant,
Jermaine Watkins (“Co-defendant”), entered Memorial Park in Carlisle,
Pennsylvania, in search of Robert “Rocky” Anderson. Co-defendant
approached Anderson and they began to argue. Appellant was carrying a .22
caliber revolver and Co-defendant had a .380 caliber semi-automatic
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1 After a brief Grazier colloquy, Appellant chose to proceed pro se at the
resentencing hearing with stand-by counsel, and has continued to represent
himself on appeal. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998);
N.T. Resentencing Hearing, 4/26/18, at 3-4.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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handgun. During the argument, Appellant and Co-defendant fired their
weapons. Anthony Shannon Banks (“victim”), a bystander, was struck by a
stray bullet and fell to the ground. Appellant approached the victim and shot
him multiple times, killing him. At autopsy, a .22 caliber bullet was removed
from the victim’s brain.
On July 9, 1999, Appellant pled guilty to first-degree murder. In
exchange for his guilty plea, the Commonwealth agreed not to seek the death
penalty.2 On the same day, he was sentenced to the mandatory sentence of
life in prison without the possibility of parole (“LWOP”).
After the United States Supreme Court’s decisions in Miller v.
Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, ___ U.S.
___, 136 S.Ct. 718 (2016), Appellant received a resentencing hearing wherein
he was ordered to serve thirty years to life imprisonment. Appellant filed a
post-sentence motion which was denied. He filed a timely notice of appeal
and was not ordered to file a concise statement of errors complained of on
appeal. The resentencing court filed its opinion, and the matter is now ripe
for our review.
Appellant raises the following issues on appeal, which we have reordered
for ease of disposition:
I. Did the trial court abuse its discretion by denying Appellant’s
post-sentencing motion despite his request to supplement
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2The imposition of the death penalty on juveniles between the ages of sixteen
and seventeen who had been convicted of homicide was not rendered
unconstitutional until 2005. See Roper v. Simmons, 543 U.S. 551 (2005).
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such after receipt of his sentencing transcripts to challenge
the language of the sentencing statute under the void for
vagueness doctrine (due process) since a life sentence has
not been clearly defined under title 18 Pa.C.S. § 1102?
II. Did the trial court abuse its discretion by failing to hold a
hearing on Appellant’s writ of habeas corpus ad
subjiciendum being as though it took over 240 days after
the U.S. middle district court of Pennsylvania granted his
federal habeas corpus ordering a prompt resentencing
hearing when all similarly situated litigants was given
120/180 days of unconditional release was ordered?
III. Did trial court abuse its discretion by imposing a sentence
based on the crime alone despite underdeveloped sense of
responsibility of a minor/child?
IV. Did the trial court [err] by imposing a [thirty] to life
sentence under title 18 Pa.C.S. § 1102 in violation of the
separation of powers doctrine when no legislation exists to
confer a minimum term?
V. Did the trial court abuse its discretion when it failed to
identify the statute which allowed a sentence to be imposed
and gave [it] jurisdiction to enforce a penalty not clearly
defined by statute (legislation) ultimately depriving [it] of
subject matter jurisdiction?
VI. Did the trial court [err] in denying Appellant’s post-
sentencing motion by utilizing title 18 Pa.C.S. § 1102.1 as
guidance in violation of the equal protection clause of the
U.S. Const. when a sub-class was created for sentencing via
Commonwealth v. Batts, [163 A.3d 410 (Pa. 2017)
(“Batts II”)] when a 14 year old is given a lesser sentence
than a 15 year old due to legislation?
[VII. Did the trial court commit an error by failing to issue a
opinion addressing Appellant’s claims within his post-
sentencing motion.]3
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3 Although, included in his brief as its own argument section, we note with
displeasure that Appellant failed to include this issue in his statement of
questions section.
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VIII. Did the trial court commit error by increasing Appellant’s
court cost[s] at a resentencing hearing which violated the
double [jeopardy] clause when the penalty was more severe
because transportation cost[s] are illegal?
Appellant’s brief at 7, 21.
In his first claim, Appellant alleges that 42 Pa.C.S. § 9711 should be
declared void for vagueness because the statute does not define “life.”
Appellant’s brief at 15. The Commonwealth responds that this claim is waived
because Appellant is raising it for the first time on appeal. Commonwealth’s
brief at 16. Appellant acknowledges the Commonwealth’s argument, and
concedes his failure to preserve this issue below, but explains that his failure
to do so was the result of trial court error. The trial court denied his post-
sentence motion without first ruling on his request to supplement his filing
once he received the resentencing hearing transcript. Appellant alleges that
he could not raise this challenge to the statutory definition of “life” without
first reading the sentencing transcript. Appellant’s brief at 15. We disagree.
“It is a bedrock appellate principle that ‘issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.’”
Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa. 2013). Notably, “if the
grounds asserted in the post-sentence motion do not require a transcript,
neither the briefs nor hearing nor argument on the post-sentence motion shall
be delayed for transcript preparation.” Pa.R.Crim.P. 720(2)(c).
While Appellant is correct that the resentencing court never issued an
order responding to Appellant’s request to supplement his post-sentence
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motion upon receipt of the resentencing transcript, he has offered no
explanation or legal authority in order to support his contention that the
resentencing transcript was necessary in order for him to be able to properly
plead his claim, such that his failure to preserve this issue should be
overlooked. Importantly, Appellant’s substantive analysis is purely legal.
While he has included citations to the sentencing hearing transcript, such
excerpts do not enhance the strength of his argument. Accordingly, since we
conclude that the transcript was not necessary for Appellant to preserve this
issue in his post-sentence motion, and Appellant failed to include it in his post-
sentence motion, it is waived.
In his second issue, Appellant attacks the timeliness of his resentencing
hearing. This issue is similarly waived due to Appellant’s failure to litigate it
below. A review of the record reveals that this action began when his attorney
filed a petition for a writ of habeas corpus and amended PCRA petition on
December 26, 2013. In that filing, counsel preserved Appellant’s resentencing
claim based on Miller and requested that his case be stayed pending the
outcome of a petition for allowance of appeal in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). The PCRA court granted Appellant’s
request for a stay. Notably, if it had not done so, Appellant’s PCRA petition
would have been dismissed as untimely, because Miller had not yet been
found to apply retroactively.
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In 2016, counsel filed a second amended PCRA petition, following the
United States Supreme Court’s decision in Montgomery, wherein the Court
found that Miller should be applied retroactively. Montgomery, supra at
736-37. The PCRA court granted Appellant’s second amended PCRA petition
and scheduled a resentencing hearing for June 14, 2016. This initial date was
continued twice by the parties while they awaited the Pennsylvania Supreme
Court’s decision in Batts II. Following the issuance of Batts II, the final
continuance was granted after both sides agreed that they needed more time
to acquire necessary witnesses for the resentencing hearing. At no time did
defense counsel challenge the timeliness of the resentencing hearing, and in
fact, all of the continuances were requested by the defense.
Appellant began representing himself at his resentencing hearing, with
stand-by counsel. However, Appellant never challenged the speediness of his
resentencing hearing either orally or in a post-sentence motion. Because
there is no evidence in the record that Appellant ever challenged the delay in
his resentencing hearing until he filed his appellate brief, we find this claim to
be waived.
In his third issue, Appellant challenges the discretionary aspects of his
sentence. Specifically, he alleges that the resentencing court improperly
relied on his misconduct record in prison and the nature of the underlying
crime itself, without placing enough emphasis on the fact that Appellant was
young when he committed his crime, had to exist within a hostile prison
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environment amongst substantially older inmates, and has since been
rehabilitated. See Appellant’s brief at 12, 20. The following principles apply
to our consideration of whether review of the merits of his claim is warranted.
“An appellant is not entitled to the review of challenges to the discretionary
aspects of a sentence as of right. Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this Court’s jurisdiction.”
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014). In
determining whether an appellant has invoked our jurisdiction, we consider
four factors:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.Appellant filed both a timely post-sentence motion and a notice of
appeal. However, in his motion, Appellant did not challenge the court’s failure
to consider mitigating factors or alleged reliance on improper facts when it
fashioned his sentence. See Post-Sentence Motion, 3/8/18, at unnumbered
1-2. Also, a review of the resentencing transcript reveals that Appellant did
not raise either of these claims at the resentencing hearing. Therefore,
Appellant did not preserve this issue and his discretionary aspects of sentence
claim is waived. See, e.g., Commonwealth v. Jones, 858 A.2d 1198, 1204
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(Pa.Super. 2004) (holding that a discretionary aspects issue was waived
because it was not raised at sentencing or in a post-sentence motion).
In his fourth and fifth claims, Appellant attacks the court’s authority to
follow Batts II, and resentence him under 18 Pa.C.S. § 1102.1, as an abuse
of discretion, because no legislation exits to “confer a minimum term” on
Appellant.4 Appellant’s brief at 14, 19. Specifically, Appellant points to the
text of § 1102.1, which states that it applies only to offenders who are
sentenced after June 24, 2012, as support for his argument that the
legislature did not intend for it to apply retroactively. Id. at 19. Therefore,
when the resentencing court utilized § 1102.1 as guidance, it was
“legislat[ing] from the bench.” Id. at 14. Appellant mischaracterizes the
Miller and Batts II holdings in order to reach the conclusion that the
resentencing court was not required to impose a minimum term of
imprisonment at resentencing.
In Batts II, our Supreme Court interpreted Miller and found that,
pursuant to Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (“Batts
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4 While Appellant also includes certain constitutional “buzz words” in his
analysis, he fails to offer a coherent analysis in support of his allegations. We
could find waiver on that basis. See Commonwealth v. Perez, 93 A.3d 829,
841 (Pa. 2014) (holding that a “failure to provide any developed argument or
legal citation results in waiver of this issue”). However, because Appellant
does advance similar arguments in both claims against the utilization of 42
Pa.C.S. § 1102.1 as a guideline in the absence of a legislative mandate, we
decline to find waiver and will instead analyze those portions of his claims
together on their merits.
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I”), once a resentencing court evaluates the criteria identified in Miller and
determines a life without the possibility of parole sentence is inappropriate, it
must impose a “mandatory maximum sentence of life imprisonment as
required by Section 1102(a), accompanied by a minimum sentence
determined by the common pleas court upon resentencing.” The Batts II
court instructed resentencing courts to look to mandatory minimum sentences
set forth in § 1102.1(a) as guidance for setting a minimum sentence for a
juvenile convicted of first-degree murder prior to Miller. Importantly, our
Supreme Court explained that § 1102 was still valid when applied to juveniles
who were convicted of first or second degree murder prior to June 25, 2012,
since the unconstitutional part of Pennsylvania’s sentencing scheme, the lack
of parole eligibility pursuant to § 6137(a)(1), was severable. In doing so, it
also considered the legislature’s inaction in this area:
Despite the passage of four years since we issued our decision in
Batts I, the General Assembly has not passed a statute
addressing the sentencing of juveniles convicted of first-degree
murder pre-Miller,5 nor has it amended the pertinent provisions
that were severed in Batts I. As we have previously stated, the
General Assembly is quite able to address what it believes is a
judicial misinterpretation of a statute, and its failure to do so in
the years following the Batts I decision gives rise to the
presumption that the General Assembly is in agreement with our
interpretation.
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5 The legislature did eventually respond to Miller by enacting 18 Pa.C.S. §
1102.1, which provides that individuals between the ages of fifteen and
seventeen convicted of first-degree murder must be sentenced to a maximum
of life imprisonment and a minimum term set anywhere from thirty-five years
to life. However, this statute only applies to those individuals sentenced after
June 24, 2012.
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Batts II, supra at 445 (internal quotation marks, citations, and footnote
omitted).
Subsequent case law has relied on the holding of Batts II and
repeatedly rejected claims that such a sentencing scheme is unconstitutional
as applied to juvenile offenders convicted of murder prior to Miller. Although
these cases have largely focused on challenges to the life maximum tail
instead of the minimum range sentence, those holdings are still instructive
here. See Commonwealth v. Blount, 207 A.3d 925 (Pa.Super. 2019);
Commonwealth v. Olds, 192 A.3d 1188 (Pa.Super. 2018) (holding
imposition of mandatory maximum sentence of life imprisonment for juvenile
defendant convicted of second-degree murder prior to Miller was
constitutional); Commonwealth v. Seskey, 170 A.3d 1105 (Pa.Super. 2017)
(finding that the resentencing court was required to impose a mandatory
maximum sentence of life imprisonment when it resentenced a juvenile
defendant convicted of first-degree murder prior to Miller).
Based on a review of the above-precedent and statutory authority, it is
clear that Appellant’s argument, pertaining to the application of § 1102.1 to
those sentenced after June 24, 2012 is incorrect. Just as we have previously
found with regard to the maximum life tail, the resentencing court was
statutorily required to start its analysis of the appropriate minimum range
sentence for Appellant by looking to § 1102.1, as Batts II required. We also
are bound to follow the mandate of stare decisis.
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In his sixth issue, Appellant challenges the constitutionality of 18 Pa.C.S.
§ 1102.1, which the legislature enacted in response to the High Court’s
decision in Miller.6 “We note that duly enacted legislation carries with it a
strong presumption of constitutionality.” Commonwealth v. Turner, 80
A.3d 754, 759 (Pa. 2013) (citation omitted). “A presumption exists ‘[t]hat
the General Assembly does not intend to violate the Constitution of the United
States or of this Commonwealth’ when promulgating legislation.”
Commonwealth v. Baker, 78 A.3d 1044, 1050 (Pa. 2013).
In conducting our review, we are guided by the principle that acts
passed by the General Assembly are strongly presumed to be
constitutional, including the manner in which they were passed.
Thus, a statute will not be found unconstitutional unless it clearly,
palpably, and plainly violates the Constitution. If there is any
doubt as to whether a challenger has met this high burden, then
we will resolve that doubt in favor of the statute’s constitutionality.
Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal quotation
marks and citations omitted). Constitutional challenges present pure
questions of law; therefore, our standard of review is de novo and our scope
of review is plenary. Turner, supra.
Appellant argues that § 1102.1 violates the Equal Protection Clause of
the 14th Amendment because it treats juveniles under the age of fifteen
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6While Appellant was not subject to § 1102.1, as it only applies to defendants
sentenced after June 24, 2012, the Court used it as a guideline. Trial Court
Opinion, 12/11/18, at 2. Additionally, Appellant orally preserved his equal
protection challenge to § 1102.1 at the resentencing hearing. N.T.
Resentencing Hearing, 4/26/18, at 34-35. Therefore, this claim is properly
before us and we proceed to review it on the merits.
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differently than it treats juveniles between the ages of fifteen and eighteen
when fashioning the minimum range of a sentence for the same crime.
Appellant’s brief at 13. This disparity in treatment on the basis of age, alone,
appellant alleges, is unconstitutional because the statute fails to account for
the individual circumstances of each case, such as the “horrific” nature of the
offense, as required by Miller. Id. We disagree.
The statute provides, in relevant part, as follows:
Sentence of persons under the age of 18 for murder, murder of
an unborn child and murder of a law enforcement officer
(a) First degree murder.—A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement officer
of the first degree and who was under the age of 18 at the time
of the commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be
sentenced to a term of life imprisonment without
parole, or a term of imprisonment, the minimum of
which shall be at least 35 years to life.
(2) A person who at the time of the commission of the
offense was under 15 years of age shall be sentenced
to a term of life imprisonment without parole, or a
term of imprisonment, the minimum of which shall be
at least 25 years to life.
18 Pa.C.S. § 1102.1(a). When determining whether to impose a sentence of
life without parole on a juvenile convicted of murder, § 1102.1 requires a court
to consider and make findings on the record regarding the following individual
factors:
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(1) The impact of the offense on each victim, including oral and
written victim impact statements made or submitted by family
members of the victim detailing the physical, psychological and
economic effect of the crime on the victim and the victim’s family.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed
by the defendant.
(4) The nature and circumstances of the offense committed by the
defendant.
(5) The degree of the defendant’s culpability.
(6) Guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the
defendant.
(v) The nature and extent of any prior delinquent or criminal
history, including the success or failure of any previous
attempts by the court to rehabilitate the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S. § 1102.1(d).
The Equal Protection Clause of the Fourteenth Amendment provides that
no State shall “deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. “The starting point of [an] equal
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protection analysis [of a statute] is a determination of whether the State has
created a classification for the unequal distribution of benefits or imposition of
burdens.” Commonwealth v. Parker White Metal Co., 515 A.2d 1358,
1363 (Pa. 1986). Section 1102.1 differentiates between offenders based upon
their age, and other age related factors. “It is well-settled that age
classifications do not implicate suspect classes, and therefore, do not trigger
strict scrutiny review.” Commonwealth v. Albert, 758 A.2d 1149, 1152 (Pa.
2000) (citing Gondelman v. Commonwealth, 554 A.2d 896, 899 (Pa.
1989)). When fundamental rights or suspect classifications are not implicated,
we apply the rational basis test. Commonwealth v. Lark, 504 A.2d 1291,
1298 (Pa.Super. 1986).
In applying the rational basis test, we follow a two-step analysis: “First,
[a court] must determine whether the challenged statue seeks to promote any
legitimate state interest or public value. If so, [the court] must next
determine whether the classification adopted in the legislature is reasonably
related to accomplishing that articulated state interest or interests.” Albert,
supra at 1152. We also note that, “[i]n undertaking [our] analysis, [we are]
free to hypothesize reasons the legislature might have had for the
classification. If [we determine] that the classifications are genuine, [we]
cannot declare the classification void even if it might question the soundness
or wisdom of the distinction.” Id.
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As noted above, § 1102.1 was created in response to the Miller
decision, wherein the United States Supreme Court held that children must be
treated differently than adults for purposes of sentencing even when they
commit terrible crimes, because juveniles have “diminished culpability and
greater prospects for reform,” since their brains are not fully developed.
Miller, supra at 469. Therefore, the mandatory penalty scheme that
prevented the sentencing court from exercising its discretion to sentence a
juvenile offender to anything other than life without the possibility of parole,
without first considering socioscientific factors, was found to be
unconstitutional. Id. at 474. Thus, our legislature passed § 1102.1,
differentiating between offenders based on age, in order to ensure that
juvenile offenders were given individualized sentences that took into
consideration their unique backgrounds.
We find that the legislation serves a legitimate state interest, to ensure
that society is protected from criminal offenders who commit heinous crimes,
while guaranteeing that juvenile offenders are given the opportunity to reform
in conformance with Miller’s mandate. A distinction between juveniles, under
the age of eighteen and under the age of fifteen, recognizes that as juveniles
age and get closer to adulthood, the starting point for assessing a degree of
culpability and potential for reform must also evolve. Thus, the legislation
meets the rational basis test. Based on the foregoing, we conclude that
§ 1102.1 does not run afoul of the United States Equal Protection Clause.
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In his seventh issue, Appellant attacks the content of the resentencing
court’s Pa.R.A.P. 1925(a) opinion and its failure to order him to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He alleges that
both issues led to a record so deficient that proper appellate review is
impossible. Appellant’s brief at 21. We disagree with Appellant’s
characterization of the record and that any Pa.R.A.P. 1925 error occurred.
Once Appellant filed a notice of appeal, the resentencing court was
required to do the following:
Except as otherwise prescribed by this rule, upon receipt of the
notice of appeal, the judge who entered the order giving rise to
the notice of appeal, if the reasons for the order do not already
appear of record, shall forthwith file of record at least a brief
opinion of the reasons for the order, or for the rulings or other
errors complained of, or shall specify in writing the place in the
record where such reasons may be found.
Pa.R.A.P. 1925(a)(1). A plain reading of Pa.R.A.P. 1925(a)(1) reveals that
the resentencing court was not required to respond individually to each of
Appellant’s claims in his post-sentence motion. Instead, all it was required to
do was to issue “a brief opinion of the reasons for [its sentencing order]” and
it did that. Id.; see also Trial Court Opinion, 12/11/18, at 1-3. Therefore,
Appellant is entitled to no relief on the first portion of his claim.
Appellant also alleges that the resentencing court erred when it did not
order him to file a Pa.R.A.P. 1925(b) concise statement. The relevant
subsection of the rule provides that:
If the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
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appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
Pa.R.A.P. 1925(b) (emphasis added). The plain text of the rule indicates that
the resentencing court had the discretion to decide if a concise statement was
needed and should have only ordered Appellant to file one if it felt that the
record was inadequate or that it needed Appellant to clarify which issues he
intended to raise on appeal. Since the resentencing court proceeded to file its
Rule 1925(a) opinion without ordering Appellant to file a Rule 1925(b)
statement, it follows that the court determined that a Rule 1925(b) statement
was unnecessary. Therefore, Appellant’s claim fails on both accounts.
In his final issue, Appellant challenges the resentencing court’s order
requiring him to pay the costs of prosecution, because it violated the Double
Jeopardy Clause of the United States Constitution. Appellant’s brief at 17.
While pointing out the incoherence of Appellant’s constitutional analysis, the
Commonwealth nevertheless concedes that Appellant should not have been
ordered to pay the costs of his resentencing on different grounds.
Commonwealth’s brief at 17. We appreciate the Commonwealth’s candor and
agree with its assessment.
Because Appellant’s claim challenges the resentencing court’s authority
to impose costs as part of its resentencing order, it implicates the legality of
his sentence. Commonwealth v. Lehman, 201 A.3d 1279, 1283 (Pa.Super.
2019). “Our standard of review over such questions is de novo and our scope
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of review is plenary.” Commonwealth v. White, 193 A.3d 977, 985
(Pa.Super. 2018) (citing to Commonwealth v. Cardwell, 105 A.3d 748, 750
(Pa.Super. 2014)).
We find instructive this court’s recent decision in Lehman. In that case,
the defendant, like Appellant, was convicted of a murder he committed when
he was a juvenile and sentenced to life without the possibility of parole. After
obtaining relief pursuant to Miller and Montgomery, the defendant was
resentenced to thirty-years to life for his first-degree murder conviction and
ordered to pay the costs of prosecution, which included costs accrued during
his resentencing hearing. Among other issues, on appeal the defendant
challenged the resentencing court’s imposition of prosecution costs for the
resentencing hearing. Although we upheld the sentencing court’s authority to
impose the thirty-years to life sentence, we also agreed with the defendant
that he should not have been charged with the costs associated with the
resentencing, as that “would punish him for exercising his constitutional right
to receive a sentence that comports with the Eight Amendment of the United
States Constitution.” Lehman, supra at 1286. We remanded the case so
that the defendant’s costs could be recalculated. The same is true here.
Appellant should not have been assessed costs which were accrued as a result
of changes in the law. Id. Therefore, we vacate the portion of the
resentencing court’s order requiring Appellant to pay the costs of his
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resentencing and remand for a recalculation of his costs in conformance with
our holding in Lehman.
Judgment of sentence affirmed in part and vacated in part. Case
remanded with instructions. Jurisdiction relinquished.
Judge Strassburger joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2019
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