Com. v. Barnes, K. ( 2018 )

J-S52043-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KWAME LAMAR BARNES, :
:
Appellant : No. 279 MDA 2018
Appeal from the Judgment of Sentence October 18, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000426-2011
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 29, 2018
Kwame Lamar Barnes (Appellant) appeals from the October 18, 2017
judgment of sentence of an aggregate term of 20 to 40 years of incarceration,
after being convicted by a jury of attempted murder, aggravated assault,
kidnapping, and recklessly endangering another person (REAP). We affirm.
This Court has summarized the facts of this case as follows.
On December 19, 2010, the victim, who was sixteen at the time
of trial, was sleeping alone at her mother’s home in Steelton when
she received a text message from Appellant, her ex-boyfriend[,
who was eighteen years old at the time]. Although they were no
longer dating, the victim and Appellant still had an amicable
relationship. Appellant indicated in the text message that he was
at the back door of the residence and the victim allowed Appellant
to enter the home. The victim and Appellant went upstairs to the
victim’s bedroom where they talked, engaged in sexual
intercourse, and then talked again. They then had an argument.
The victim asked Appellant to leave and she escorted him
downstairs to the back door. Prior to leaving, Appellant threatened
to hit the victim with a vacuum. Subsequently, Appellant
strangled the victim from behind by using his arm. She lost
consciousness. When she regained consciousness, Appellant said
* Retired Senior Judge assigned to the Superior Court.
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to the victim, “you’re gonna die today,” and proceeded to strangle
her again until she lost consciousness a second time. When the
victim finally regained consciousness, she was wrapped in a
blanket and lying head-first in a recycling dumpster under the
State Street Bridge. She eventually freed herself and managed to
get to the side of a roadway, where the driver of a passing vehicle
stopped and took her to the hospital. The victim suffered a broken
vertebra in her neck, various facial injuries, a lacerated and
swollen tongue, a large contusion to her right eye, and
hypothermia.
On December 20, 2010, Appellant was charged with criminal
attempt to commit homicide (“attempted murder”), aggravated
assault, kidnapping, REAP, terroristic threats, and theft by
unlawful taking. On February 28, 2012, at the conclusion of a jury
trial, Appellant was found guilty of attempted murder, aggravated
assault, kidnapping, and REAP. The jury found Appellant not guilty
for the charge of terroristic threats. On May 18, 2012, Appellant
was sentenced to a term of incarceration of 20 to 40 years for the
conviction of attempted murder, a consecutive term of
incarceration of 2½ to 5 years for his conviction of aggravated
assault, and a consecutive term of incarceration of 2½ to 5 years
for his conviction of kidnapping. The trial court imposed no
additional sentence for the conviction of REAP. Appellant timely
appealed to this Court. [This resulted in an aggregate sentence of
25 to 50 years of incarceration.]
On December 3, 2013, a panel of this Court (“2013
decision”) determined that the convictions of aggravated assault
and attempted homicide should have merged because the crimes
arose from a single set of facts, i.e., Appellant choked the victim
to unconsciousness. Accordingly, the panel vacated the judgment
of sentence, and remanded for resentencing. Commonwealth v.
Barnes, [93 A.3d 497 (Pa. Super. 2013) (unpublished
memorandum at 2-3)]. On January 30, 2014, upon remand, the
trial court resentenced Appellant to 20 to 40 years’ imprisonment
for attempted murder and a consecutive term of incarceration of
5 to 10 years for the conviction of kidnapping. [Once again, this
resulted in an aggregate sentence of 25 to 50 years of
incarceration.] On February 5, 2014, Appellant filed a post-
sentence motion, which the trial court denied on May 12, 2014.
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Commonwealth v. Barnes, 167 A.3d 110, 114–15 (Pa. Super. 2017) (en
banc) (citations to notes of testimony and footnotes omitted).
On appeal after re-sentencing, this Court again vacated Appellant’s
sentence. This Court considered whether the trial court’s decision to impose
a maximum term of imprisonment of 40 years for the offense of
attempted murder in the absence of a jury finding of serious bodily
injury … violates the United States Supreme Court’s decision in
Apprendi[ v. New Jersey, 530 U.S. 466 (2000)], wherein the
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.”
Barnes, 167 A.3d at 117. This Court concluded that “the jury was never
presented with, nor rendered a decision on, the question of whether a serious
bodily injury resulted from the attempted murder.” Id. at 122. Thus, this
Court vacated Appellant’s sentence for attempted murder and remanded for
re-sentencing. Id.
Appellant was re-sentenced on October 18, 2017. At that hearing, the
sentencing court heard testimony from Appellant’s parents about Appellant’s
good conduct since being incarcerated. In addition, Appellant took the
opportunity to tell the trial court about his accomplishments and changes since
being in prison. The victim and her relatives also testified. The trial court
recounted Appellant’s crimes, pointing out that he “not only strangled [the
victim], [he] beat her senseless, and then [he] strangled her again and left
her for dead.” N.T., 10/19/2017, at 30. Appellant was sentenced to 10 to 20
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years of incarceration on the attempted murder charge and 10 to 20 years of
incarceration on the kidnapping charge to run consecutively. Id.
Appellant timely filed a post-sentence motion, which was denied by the
trial court. Appellant timely filed a notice of appeal, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant challenges the discretionary aspects of his
sentence. In particular, Appellant argues that the trial court’s quadrupling of
his kidnapping sentence at resentencing was vindictive. Appellant’s Brief at 4.
We consider this issue mindful of the following.
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.
***
When imposing [a] sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
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. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
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(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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Instantly, Appellant has satisfied the first three requirements: he timely
filed a notice of appeal, sought reconsideration of his sentence in a post-
sentence motion, and his brief contains a Pa.R.A.P. 2119(f) statement. We
now consider whether Appellant has presented a substantial question for our
review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the sentencing code; or (2)
contrary to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation and
quotation marks omitted).
“[I]t is settled that Appellant’s claim that his sentence on remand was a
product of vindictiveness presents a substantial question for our review. See
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Commonwealth v. Tapp, 997 A.2d 1201, 1202–03 (Pa. Super. 2010)
(noting that “alleging judicial vindictiveness ... constitute[s] a substantial
question mandating appellate review”).” Barnes, 167 A.3d at 123. Thus, we
address the merits of Appellant’s vindictiveness claim, by setting forth the
following based upon the similar issue addressed in Appellant’s prior appeal
to this Court.
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. In North
Carolina v. Pearce, 395 U.S. 711 [] (1989), the United States
Supreme Court remarked:
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
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.
Pearce, 395 U.S. at 725–26 [] (footnote omitted) []. Although
Pearce dealt with an increased sentence following the grant of a
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new trial, we have 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. See Commonwealth v. Greer, 554 A.2d 980, 987 n.7 ([Pa.
Super.] 1983) (noting that Pearce applies to harsher sentence
imposed by trial court after trial court granted post-trial request
for resentencing). Thus, under Pearce, whenever a trial court
imposes upon a defendant a more severe sentence following
resentencing, the reasons for such sentence must be made a part
of the record. “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).
Here, the trial court originally sentenced Appellant on the
kidnapping conviction to a consecutive term of 2½ to 5 years of
incarceration. On remand, however, the trial court was obligated
to merge the offenses of aggravated assault with attempted
homicide. In so doing, the trial court doubled the kidnapping
sentence to a consecutive term of 5 to 10 years’ 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 [trial] court was able to
maintain the original sentence.” Trial Court Opinion, 5/12/14 at 4.
We find Appellant’s argument that he received an enhanced
sentence to be wanting. Appellant’s argument requires us to look
only 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. Appellant fails to note
the trial court’s overall sentencing scheme. Before his successful
appeal in 2013, his aggregate sentence was 25 to 50 years’
imprisonment. Thereafter, on remand, the trial court resentenced
him to the same aggregate sentence. We have held that
preserving the integrity of a prior sentencing scheme is a
legitimate sentencing concern. See [Commonwealth v.]
Walker, 568 A.2d [201,] 205 [(Pa. Super. 1989)] (“Upon
resentencing, a court has a valid interest in preserving the
integrity of a prior sentencing scheme.”) (citation omitted).
Indeed, a trial court properly may resentence a defendant to the
same aggregate sentence to preserve its original sentencing
scheme. See Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.
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Super. 1999) (noting a resentence of 7½ to 15 years for burglary
was lawful after not receiving a sentence for burglary and having
been given previously the same sentence for theft by unlawful
taking) []. “[I]n most circumstances, 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.” Walker, 568 A.2d at 206. However, “[i]f a judge could
have imposed the same aggregate sentence he handed down at
the original sentencing hearing, and ... instead imposes a harsher
aggregate sentence, the presumption of vindictiveness could not
be rebutted by invoking the need to preserve the original
sentencing plan.” Id. In Commonwealth v. McHale, 924 A.2d
664, 667 (Pa. Super. 2007), overruled in part on other grounds
as stated in Commonwealth v. Robinson, 931 A.2d 15 (Pa.
Super. 2007), 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. McHale, 924 A.2d at 673–74. After
remand, to maintain the same total aggregate sentence as
originally imposed, the trial court increased the overall sentence
on the surviving counts. Id. at 667. Noting that the aggregate
sentence remained unchanged, we upheld the new sentence. Id.
at 674. In so doing, 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.
Id. at 673–74.
Appellant here was not the victim of a vindictive sentence
on the part of the trial court, as his aggregate sentence after
remand remained the same. Put differently, consistent with
Greer, Walker, and McHale, the trial court’s resentencing did
not rise to vindictiveness because the trial court here sought to
preserve the integrity of the original sentencing scheme by
imposing the same aggregate sentence. See Commonwealth v.
Vanderlin, [] 580 A.2d 820, 831 ([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
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count in order to insure appellant remained in prison for a certain
length of time); Commonwealth v. Grispino, 521 A.2d 950, 954
([Pa. Super.] 1987) (noting that trial court does not violate double
jeopardy principles by increasing sentence on remand where
aggregate term is not increased) []. Accordingly, Appellant is not
entitled to relief on his due process claim under Pearce.
Barnes, 167 A.3d at 124-125.
Instantly, Appellant received an aggregate sentence of 20 to 40 years
of incarceration following remand, which is actually less than either of his prior
aggregate sentences. Again, Appellant asks this Court to look only at his
kidnapping sentence without considering the sentence as a whole. We have
not done so previously, and we will not do so now. Accordingly, we conclude
that Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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