Com. v. McFarland, S. ( 2023 )

J-S33021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MCFARLAND :
:
Appellant : No. 498 WDA 2022
Appeal from the Judgment of Sentence Entered March 9, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004150-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: December 4, 2023
Shawn McFarland (Appellant) appeals from the judgment of sentence
imposed on March 9, 2022, in the Allegheny County Court of Common Pleas
after the trial court granted his post-sentence motion, and vacated his original
sentence. Appellant argues his due process rights were violated when the trial
court doubled his original sentence absent any post-sentencing conduct or
new information justifying the increase. For the reasons below, we agree the
trial court had no authority to increase Appellant’s aggregate sentence under
the facts presented herein, and remand for reinstatement of the original
sentence.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S33021-23
On November 9, 2021, Appellant entered a guilty plea to one count each
of criminal mischief and possession of controlled substances (cocaine). 1 We
derive the following facts underlying Appellant’s plea from the affidavit of
probable cause attached to the criminal complaint. See Police Criminal
Complaint, 4/17/21, Affidavit of Probable Cause at 1-3. On April 16, 2021, at
approximately 11:30 p.m., Pittsburgh police officers were dispatched to Butler
and Main Streets after an anonymous caller informed them that an individual
was slashing tires. See id. at 2. A second caller stated that the individual,
later identified as Appellant, went into a nearby bar and was bleeding from a
cut on his hand. Id. When the officers arrived, two witnesses told them that
Appellant was crossing the street and was in possession of a knife. Id. The
officers then saw Appellant throw something near a dumpster. Id. Appellant
initially resisted arrest, but subsequently relented. See id. When they placed
him under arrest, the officers noticed cuts on two of Appellant’s fingers. Id.
Upon a search of the area, officers recovered a folding knife with fresh,
undried blood, and a clear plastic baggie of cocaine. See Affidavit of Probable
Cause at 2. The witnesses told police they “heard the sound of air being
released from a vehicle tire” and watched Appellant “walk down the street
with a knife” before leaning against a car “as if to stab the tire[.]” Id. The
officers determined that “there were approximately 23 cars with tires
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1 See 18 Pa.C.S. § 3304(a)(5); 35 P.S. § 780-113(a)(16).
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slashed.” Id. at 3. They also learned that Appellant had “an active arrest
warrant out of the United States Marshal[’s S]ervice.” Id. at 2.
Appellant was subsequently charged with criminal mischief as a third-
degree felony, possession of controlled substances, possession of an
instrument of crime, possession of a weapon, simple assault, and loitering and
prowling at night.2 As noted above, on November 9, 2021, Appellant pled
guilty to one count each of criminal mischief and possession of cocaine, in
exchange for which the Commonwealth agreed to amend the criminal mischief
charge to a second-degree misdemeanor,3 and withdraw the remaining
charges. See N.T., 11/9/21, at 2. The trial court ordered a presentence
investigation report (PSI) and scheduled sentencing for February 14, 2022.
At the February 14th hearing, Appellant’s counsel argued that Appellant
was “exceptionally remorseful for the inconvenience” he caused both the
police and the victims, and insisted Appellant “was not himself that night[.]”
N.T., 2/14/22, at 4. He attributed Appellant’s behavior to depression and
mental health struggles, noting that at the time of the incident, Appellant was
transitioning from one mental health medication to another. Id. Counsel
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2 See 18 Pa.C.S. §§ 907(a), (b), 2701(a)(3), and 5506, respectively.
3 Criminal mischief is graded as a third-degree felony if, inter alia, the
defendant “intentionally causes pecuniary loss in excess of $5,000[,]” but is
graded as a second-degree misdemeanor if the loss is “in excess of $1,000[.]”
18 Pa.C.S. § 3304(b). Here, despite the amended grading, Appellant was
directed to pay $5,005.18 in restitution to 13 victims. See Order of Sentence,
2/14/22 at 1 (unpaginated).
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acknowledged that, on the night of his arrest, Appellant tested positive for
numerous drugs ─ including ecstasy, marijuana, methamphetamines, PCP,
cocaine ─ and alcohol. See id. at 11. However, while Appellant was an
admitted marijuana user, and pled guilty to possession of cocaine, he
maintained that “he did not ingest . . . the various cocktail” of drugs in his
system. Id. at 11-12. Counsel noted that Appellant’s “last case was almost
15 years” earlier, when he received a “significant federal sentence for a case
. . . with a firearm.”4 Id. at 10, 12. He further stated that because Appellant
was on supervised release at the time of this offense, he would “likely” receive
a “12- to 18-month violation with the federal government.” Id. at 12-13.
Both Appellant’s mother and father testified that Appellant was a
“changed person” since his federal prison stint. See N.T., 2/14/22, at 6, 8-9.
Appellant apologized, asked the trial court for leniency, and claimed he did
not “knowingly ingest those substances[,]” admitting only that he was
drinking and smoking marijuana. Id. at 13.
At the conclusion of the hearing, the trial court indicated that it had
reviewed the PSI, and considered the statements of Appellant, his mother,
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4 According to the PSI, in December of 2009, Appellant pled guilty in federal
court to one count of possession of a firearm by a convicted felon, and, in
March of 2010, was sentenced to 100 months’ imprisonment. See Appellant’s
Presentence Report, 1/15/22, at 8. He was released under supervision in June
of 2017, and then reincarcerated in December of 2017. Id. Appellant was
then released on October 9, 2019, and serving a period of 23 months’
supervised release when he committed the instant offenses in April of 2021.
See id.
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and his father. See N.T., 2/14/22, at 15. The court then sentenced Appellant
to two concurrent terms of one to two years’ imprisonment, one for each
count, and directed him to pay a total of $5,005.18 in restitution to 13
victims.5 See id. at 15-16; Order of Sentence, 2/14/22, at 1-2 (unpaginated).
Although the court noted that the sentence for the drug offense was within
the standard range, it did not indicate where the criminal mischief sentence
fell within the sentencing guidelines. See N.T., 2/14/22, at 15-16.
On February 23, 2022, Appellant filed a timely post-sentence motion for
modification of sentence, asserting that the sentence imposed for criminal
mischief was “not only an aggravated range sentence, but the statutory
maximum.”6 See Appellant’s Post-Sentence Motion for Modification of
Sentence, 2/23/22, at 2 (unpaginated). He stated the sentencing guidelines
called for a standard range sentence of one to nine months’ imprisonment,
and 12 months in the aggravated range. See id. Appellant argued the court
did not state reasons on the record justifying an aggravated range sentence
for his conviction of criminal mischief and failed to consider relevant mitigating
sentencing criteria. See id. at 2-3.
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5 The Commonwealth later clarified that “while 23 total victims were impacted,
it was only 13 that came forward to seek restitution[.]” See N.T., 3/30/22,
at 7.
6 See 18 Pa.C.S. § 1104(2) (statutory maximum for second-degree
misdemeanor is two years’ imprisonment).
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On March 3, 2022, the trial court entered an order granting Appellant’s
motion for modification, vacating the judgment of sentence, and scheduling a
new sentencing hearing for March 9, 2022. See Order, 3/3/22. Both
Appellant and the Commonwealth filed memoranda prior to the resentencing
hearing. In its memorandum, the Commonwealth acknowledged that the trial
court failed to state reasons on the record supporting an aggravated range
sentence for criminal mischief, but insisted there were “several aggravating
factors available[.]” See Commonwealth’s Response to [Appellant’s]
Memorandum in Support of Sentencing, 3/9/22, at 3.
At the March 9, 2023, resentencing hearing, the trial court stated that
it reviewed the PSI prior to sentencing, and “considered all the facts[,]”
including “the applicable sentencing guidelines in this case.” N.T., 3/9/22, at
3, 5. The court then asked, “What have I missed?” Id. at 5. When Appellant’s
counsel responded that a court must provide a factual basis to deviate from
the guidelines, the trial court asked, “Did I deviate from the guidelines?” Id.
at 6. After briefly discussing the sentencing guidelines, the trial court
commented: “So I sentenced him to three months more than the standard
range? Is that your argument? And I didn’t give reasons?” Id. Appellant’s
counsel responded, “Correct.” Id.
The Commonwealth argued the court’s sentence was appropriate and
noted that it had “outlin[ed] a few different factors” in its memorandum that
would be considered “aggravators[,”] including: (1) Appellant was on federal
supervised release at the time of the crime; (2) Appellant possessed a
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weapon, namely a knife, during the crime; and (3) the crime greatly impacted
the community as there were 13 victims. See N.T., 3/9/22, at 7-9. The
Commonwealth requested the court reimpose the same sentence. Id. at 7.
Appellant’s counsel, however, requested the court impose two
concurrent terms of 6 to 12 months’ imprisonment, citing the following
mitigating factors: (1) Appellant was transitioning mental health medications
and therapy at the time of the offense; (2) Appellant has the support of his
family; (3) Appellant was working prior to the crime and was very remorseful;
(4) Appellant’s last offense occurred in 2007; (5) although Appellant had prior
drug convictions, they were not for the type of drugs found in his system on
the night in question, so he believed “his drink was spiked[;]” and (6)
Appellant was facing a “12 to 18 month . . . federal hit for his parole violation.”
Id. at 11-12.
After further argument by both counsel, the trial court noted that it had
“reread and re-evaluated the contents of the” PSI, and made the following
comments before imposing sentence:
I have considered the statements made by [Appellant] today.
I have considered the arguments of Counsel. I have
considered the specific argument of Defense Counsel that claims
there should be mitigation in this case.
I have considered all other factors that I may take into
account, as well as the contents of the Motion to Modify the
Sentence that originally was imposed in this case filed by
[Appellant].
I have also considered the Commonwealth’s response to
that Motion in support of sentencing, that it appears that I may
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have overlooked aggravating factors by not specifying them on
the record at the previous sentencing.
One of which, the Commonwealth argues that the
commission of additional criminal activity while on federal
supervised release, rather than a mitigating factor or
circumstance.
The inconvenience that this must have caused the number
of victims in this case, although they only charged as one
particular Count, Criminal Mischief.
The amount of damage. The extent of damage. The
number of individual victims that were affected by [Appellant’s]
actions.
For all those reasons, . . . at Count 1, [criminal mischief,]
this case warrants, if any that I have come across, an upward
departure from the standard range of the sentencing guidelines,
and my sentence for [Appellant] is not less than one or more than
two years in a State Correctional Facility[.]
* * *
Additionally, at Count 6, [possession of cocaine, Appellant]
is sentenced to not less than one nor more than two years in a
State Correctional Facility[.]
This sentence shall be served consecutive to the sentence
I just imposed at Count 1. . . .
N.T., 3/9/22, at 24-26 (emphasis added). Thus, the new aggregate sentence
was double the original sentence imposed. The court also reimposed the order
of restitution. See Order of Sentence – Resentencing, 3/9/22, at 1
(unpaginated).
On March 21, 2022, Appellant filed a second, timely post-sentence
motion,7 arguing that the increased sentence imposed by the trial court upon
____________________________________________
7 Although this motion was filed 12 days after sentencing, the 10th day fell on
Saturday, March 19, 2022; thus, Appellant had until Monday, March 21st to
(Footnote Continued Next Page)
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resentencing raised a presumption of vindictiveness. See Appellant’s Post-
Sentence Motion for Modification of Sentence, 3/21/22, at 3. Further,
Appellant insisted that the court did not increase the sentence based upon
new information or “identifiable conduct of” Appellant occurring after the
original sentencing hearing. Id. at 4 (citation omitted). Therefore, he, once
again, requested the court vacate the judgment of sentence, and resentence
him to two concurrent terms of six to 12 months’ imprisonment. See id. at
5. The trial court scheduled a hearing for March 30, 2022.
At the second post-sentence hearing, Appellant argued the court
“doubl[ed]” his sentence absent any additional factors. See N.T., 3/30/22, at
3. The trial court, however, stated that it did not “double his sentence[,]” but
rather “sentenced him consecutively.” Id. Moreover, the court explained
that, when imposing the original sentence, it “underestimated or understated
. . . the impact” of the crime on the victims. Id. When Appellant’s counsel
argued that an increased sentence must be based on “new objective
information,” the court stated it was “a sentencing de novo” so that it was
permitted to “[s]tart over[.]” Id. at 4. The Commonwealth agreed, noting
that “there were aggravating factors that maybe were missed prior” and
____________________________________________
file a timely post-sentence motion. See Pa.R.Crim.P. 720(A)(1) (post-
sentence motion must be filed within 10 days of imposition of sentence); 1
Pa.C.S. § 1908 (when last day of time computation falls on weekend or
holiday, that day is omitted from computation).
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Appellant’s request for resentencing “essentially opened the door for [the
court] to reconsider.” Id. at 5.
The trial court emphasized that Appellant “already had some mitigation”
because the Commonwealth charged only one count of criminal mischief,
when it could have charged 13 separate counts. N.T., 3/20/22, at 8. The
court further explained that it previously “overlooked the gravity and scope of
the impact on the victims.” Id. See also id. at 10 (“I made a mistake the
first time. I underestimated the impact on the victims.”). Thus, the trial court
denied Appellant’s post-sentence motion. See Order, 3/30/22. This timely
appeal follows.8
Appellant presents one issue for our review:
Were Appellant[’s] due process rights, under the Fourteenth
Amendment to the United States Constitution and Article 1 § 9 of
the Pennsylvania Constitution, violated when the trial court in his
case increased the one-to-two year aggregate sentence of
imprisonment imposed on him on February 14, 2022[,] to a two-
to-four year sentence, doing so after he filed a post-sentence
motion seeking a reduction in his sentence, and doing so absent
the presentation of any information at the resentencing hearing
showing relevant post-sentence conduct on his part, or post-
sentence events relevant to his case, that justified such an
increase?
Appellant’s Brief at 4.
Preliminarily, we note that in the past this Court has considered a claim
asserting judicial vindictiveness in resentencing to be a challenge to the
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8 Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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discretionary aspects of sentencing.9 See Commonwealth v. Watson, 228
A.3d 928, 934 (Pa. Super. 2020); Commonwealth v. Barnes, 167 A.3d 110,
122 (Pa. Super. 2017) (en banc). However, more recent decisions of both the
Pennsylvania Supreme Court and this Court consider such a claim to challenge
the legality of sentencing. See Commonwealth v. Prinkey, 277 A.3d 554,
567-68 (Pa. 2022) (appellant’s claim that “resentencing court lacked authority
to extend his term of incarceration beyond the length of the original sentence
because . . . no event occurred between the two sentencing hearings that
could (or would) have justified the imposition of a lengthier sentence”
challenged legality of sentence);10 Commonwealth v. Coleman, 226 A.3d
____________________________________________9 It merits mention Appellant treated this claim as a challenge to the
discretionary aspects of sentencing, by raising it in a post-sentence motion,
filing a timely appeal, and including in his brief a Pa.R.A.P. 2119(f) statement
of reasons relied upon for allowance of appeal to invoke this Court’s
jurisdiction. See Appellant’s Post-Sentence Motion for Modification of
Sentence, 3/21/22, at 3; Appellant’s Brief at 22-24. See also
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc).
10 We note that the facts in Prinkey were somewhat distinguishable. In that
case, the defendant obtained PCRA relief from this Court, which concluded
that appeal counsel was ineffective for failing to challenge the sufficiency of
the evidence supporting one of the defendant’s convictions. Prinkey, 277
A.3d at 557. On remand for resentencing, “the Commonwealth for the first
time notified [the defendant] that it was seeking” a 25-year mandatory
minimum sentence for one of the remaining convictions. Id. Over objection,
the trial court imposed the mandatory minimum sentence, opining that it
“lacked discretion to do otherwise.” Id. at 558 (citation omitted). Thus, the
Prinkey Court stated that the defendant’s claim “turn[ed] upon the
Commonwealth’s allegedly vindictive decision to seek the mandatory
minimum, which by its very nature purported to strip the trial court of its
traditional sentencing authority.” See id. at 567 (emphasis added).
(Footnote Continued Next Page)
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598, 602 (Pa. Super. 2020) (claim that court was not permitted to “sua sponte
increase a defendant’s sentence where it . . . decided the original sentence
imposed was too lenient” challenged legality of sentencing). Therefore, “[o]ur
standard of review . . . is de novo and our scope of review is plenary.”
Commonwealth v. Asbury, 299 A.3d 996, 998 (Pa. Super. 2023).
In his sole claim on appeal, Appellant contends his due process rights
were violated when the trial court imposed an increased aggregate sentence
following his request for post-sentence relief absent any post-sentence
conduct or information justifying the increase. See Appellant’s Brief at 25.
As this Court, sitting en banc in Barnes, explained:
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 Commonwealth
v. Robinson, 931 A.2d 15, 20–22 (Pa. Super. 2007) (en banc ).
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 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
____________________________________________
Nonetheless, as quoted above, the Prinkey Court characterized the claim as
challenging the trial court’s authority to impose an increased sentence upon
resentencing absent additional events or facts occurring between the two
sentencing hearings to justify the increase. See id. at 567-68.
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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) (emphasis
added). Although Pearce dealt with an increased sentence
following the grant of a 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).
Barnes, 167 A.3d at 123–24 (some emphases omitted and some added;
footnotes omitted).
In Prinkey, our Supreme Court elaborated on the continued vitality of
Pearce’s presumption of vindictiveness in light of the High Court’s subsequent
decision in Smith. The Court explained that, while the Smith Court held “the
Pearce presumption does not apply in every case where a convicted
defendant receives a higher sentence on retrial[,]” it still “persists unless some
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event occurs after the successful appeal . . . which provides the court with a
greater amount of sentencing information.” Prinkey, 277 A.3d at 565
(citations & quotation marks omitted; emphasis added).
Thus, the Pearce presumption will not apply when the
resentencing that results in a higher sentence follows some post-
appeal occurrence that makes it likely that the court obtained
new details about the defendant’s moral character and suitability
for rehabilitation. Where no such event occurs, yet the
defendant’s new sentence is higher than the original sentence, the
Pearce presumption applies with full vigor. And when it does, it
acts as a prophylactic measure that forbid[s] . . . the imposition
of a greater punishment than was imposed after the first trial,
absent specified findings.
Id. (citations & quotation marks omitted; emphases added).
Turning to the present matter, Appellant insists the presumption of
vindictiveness applies in his case because his “aggregate sentence was
increased by the same judge who [ ]sentenced him originally, with the
increase following in the wake of [his] submission of a post-sentence motion.”
Appellant’ Brief at 29. Although the trial court cited certain facts in support of
the increased sentence ─ such as the number of victims and Appellant’s prior
criminal record ─ Appellant emphasizes that those facts were already known
to the court at the time of the original sentencing hearing. See id. at 32-34.
Indeed, as he points out, none of the aggravating facts refer to “conduct on
the part of [Appellant] occurring after . . . the original sentencing proceeding[,
or] relevant . . . events that occurred subsequent to the original sentencing
proceeding.” Id. at 32-33 (citations omitted). Accordingly, Appellant argues
the presumption of vindictiveness was unrebutted, and requests that we
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vacate the judgment of sentence and reinstate the original sentence imposed
on February 14, 2022.11 See id. at 35.
At the March 30, 2022, hearing on Appellant’s second post-sentence
motion, the trial court justified its decision to increase the aggregate sentence
based on the following: (1) the re-sentencing was de novo so the court could
“[s]tart over[,]” and (2) the court realized it had “overlooked the gravity and
scope of the impact on the victims” when it imposed the original sentence.
See N.T., 3/30/22, at 4, 8. In its opinion, the trial court simply details the
factors which it believes supports the lengthier sentence imposed. See Trial
Ct. Op., 12/1/22, at 4-5 (explaining that at the time of the offense, Appellant
was on federal supervised release, was under the influence of a “veritable
cocktail of miscellaneous controlled substances[,]” was armed with a knife
which he used to randomly slash tires and wielded in a menacing fashion at
witnesses, engaged in a “senseless rampage . . . that affected nearly a dozen
property owners[,]” and fled from police when confronted).
In support of the new sentence, the Commonwealth urges this Court to
“take[ the trial court] at its word about misapprehending the record” and not
permit Appellant “a windfall of a reduced sentence based upon the [t]rial
[c]ourt’s admitted mistake . . . regard[ing] the number of victims and impact
on the community of his criminal actions.” Commonwealth’s Brief at 42.
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11 Appellant “has abandoned any claim that the original one-to-two year
sentence of imprisonment imposed upon him on February 14, 2022 was too
harsh[.]” Appellant’s Brief at 36.
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Indeed, it insists that because the trial court “articulated a reason for the new
sentence that was not vindictive[,]” we should conclude the court rebutted the
presumption of vindictiveness. Id. at 49.
Upon our review of the record and relevant case law, we conclude that
the presumption of vindictiveness was not overcome in this case, and we are
constrained to vacate the judgment of sentence and remand for imposition of
the original sentence. This Court’s decisions in Coleman and
Commonwealth v. Nickens, 923 A.2d 469 (Pa. Super. 2007), are
controlling.
In Nickens, the trial court sentenced the defendant to an aggregate
term of 20 to 72 months’ imprisonment after revocation of his probation at
three dockets. Nickens, 923 A.2d at 471. The defendant filed a motion to
modify his sentence, and, in response, the Commonwealth filed “an answer”
with “[n]ew [m]atter[,]” requesting the court increase the defendant’s
sentence. Id. The Commonwealth did not file a separate post-sentence
motion. Two months later, the trial court entered an order denying the
defendant’s post-sentence motion, and “simultaneously modif[ying] the
sentence upward” based upon “the reasons enumerated in the
Commonwealth’s answer.” Id. (record citation & quotation marks omitted).
On appeal, this Court vacated the new sentence and remanded for
reinstatement of the original sentence. See Nickens, 923 A.2d at 472. We
determined that the trial court had no authority to increase the defendant’s
sentence absent a post-sentence motion filed by the Commonwealth seeking
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such relief, and that the Commonwealth’s answer and new matter was not “an
equivalent to a post-sentence motion.” See id. at 472. Thus, the Nickens
panel opined “the sentencing court had no basis on which to impose a harsher
sentence” and the court erred when it “essentially increased [the] sentence
sua sponte[.]” Id.The Coleman Court relied upon the ruling in Nickens to conclude that
the trial court in that case erred by increasing the defendant’s sentence under
facts similar to those presented in this appeal. In Coleman, the defendant
was convicted of burglary, criminal contempt for violating a protection from
abuse (PFA) order, and related charges following a bench trial. Coleman,
226 A.3d at 600. At the August 23, 2018, sentencing hearing, after
consideration of the PSI, the trial court sentenced the defendant to an
aggregate term of 12 to 24 months’ imprisonment, followed by two years’
probation. Id. at 601. The defendant filed a timely post-sentence motion
seeking reconsideration of his sentence. Id. No post-sentence motion was
filed by the Commonwealth.
On August 30, 2018, the trial court conducted a hearing on the
defendant’s motion. Coleman, 226 A.3d at 601. The court pointed out that
between the time of the conviction and original sentencing, the defendant
“pleaded guilty to violating the PFA order again.” Id. The court then stated
“that after the original sentencing, he ‘went home and thought to [himself],
[he] may have done the wrong thing and gave too many breaks and that [he]
didn't take enough seriousness [sic] of the domestic violence.’” Id. (record
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citation omitted). Consequently, the court re-sentenced the defendant to a
term of 14 to 28 months’ incarceration, followed by four years’ probation ─ an
increase of two months to the minimum sentence, four months to the
maximum sentence, and two additional years of probation. Id. After a second
post-sentence motion was denied by operation of law, the defendant filed an
appeal to this Court. See id. at 602.
First, the Coleman panel emphasized three facts that were not in
dispute:
1) the Commonwealth did not request a modification of [the
defendant’s] sentence, either in writing pursuant to Pa.R.Crim.P.
721 or orally at the hearing; 2) the trial court was not correcting
a patent or obvious mistake in [the defendant’s] original sentence;
and 3) the original sentence imposed upon [the defendant] was
not illegal.
Coleman, 226 A.3d at 602 (footnotes omitted). Next, the panel reviewed the
Nickens decision, and concluded the defendant’s “situation [was] virtually
indistinguishable[.]” Id. at 603. The Coleman Court opined:
[D]espite the fact the Commonwealth did not file a post-sentence
motion, the trial court sua sponte reconsidered its sentence and
increased [the defendant’s] sentence. Pursuant to Pa.R.Crim.P.
720, Pa.R.Crim.P. 721,[12] and Nickens, the trial court was
without authority to do so. . . .
Id. at 603-04.
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12 Pa.R.Crim.P. 720 and 721 set forth the procedures for filing post-sentence
motions, including the requirement that a motion must be filed within 10 days
of imposition of sentence. See Pa.R.Crim.P. 720(A)(1) (defendant must file
post-sentence motion within 10 days); 721(B)(1) (Commonwealth must file
motion for modification of sentence within 10 days).
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The facts of this case are indistinguishable from those in Coleman.
Here, on February 14, 2022, the trial court sentenced Appellant to an
aggregate term of one to two years’ imprisonment. Thereafter, Appellant
filed a post-sentence motion for modification of his sentence. The
Commonwealth did not file a motion for modification, and, in fact, during the
March 9th hearing, asked the trial court to “reimpose the sentence [it] did
originally.” N.T., 3/9/22, at 7. However, despite the absence of any new
evidence, or post-sentencing conduct on the part of Appellant, the trial court
reconsidered its prior sentence and, sua sponte, imposed an increased
aggregate term of imprisonment. Pursuant to Coleman and Nickens, the
trial court had no authority to do so. See Coleman, 226 A.3d at 603-04;
Nickens, 923 A.2d at 472.
The Commonwealth attempts to distinguish Coleman by arguing that
the trial court in the present case misapprehended the record, while the court
in Coleman “simply decided that [the] original sentence was too lenient[.]”
Commonwealth’s Brief at 31. We conclude this is a distinction without a
difference. The information the trial court relied upon to justify an increased
aggregate sentence in this case was part of the record at the original
sentencing hearing. Indeed, both the affidavit of probable cause13 and the
____________________________________________
13 At the November 9, 2021, guilty plea hearing, the trial court explicitly stated
that it had “read the affidavit of probable cause” and asked Appellant’s counsel
if he had “any objection to incorporating that into the record[,]” to which
counsel replied, “No, Your Honor.” See N.T., 11/9/21, at 4.
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PSI provide detailed accounts of the events on the night in question. The
affidavit of probable cause indicates that “there were approximately 23 cars
with tires slashed[,]” and the PSI lists the 13 victims to whom Appellant owed
restitution. See Affidavit of Probable Cause at 3; Appellant’s Presentence
Report at 4. In addition, the PSI enumerates Appellant’s six prior convictions,
and details the circumstances surrounding his federal supervised release,
including the fact that his release had been revoked on another prior occasion.
See Appellant’s Presentence Report at 8. Therefore, we conclude the trial
court’s justification for the increased sentence ─ that it simply “overlooked the
gravity and scope of the impact on the victims” at the original sentencing ─ is
insufficient under Coleman.
We also emphasize that pursuant to Pearce and its progeny, in order
to satisfy the requirements of due process and overcome the presumption of
judicial vindictiveness, an increased sentence following resentencing “must be
based upon objective information concerning identifiable conduct on the part
of the defendant occurring after the time of the original sentencing
proceeding[,]” or “new details about the defendant’s moral character or
suitability for rehabilitation[,]” See Prinkey, 277 A.3d at 565 (citation &
quotation marks omitted); Barnes, 167 A.3d at 123 (emphasis added),
quoting Pearce, 395 U.S. at 726. Here, the trial court did not rely upon any
post-sentencing conduct by Appellant, or “new details about [Appellant’s]
moral character or suitability for rehabilitation[,]” to justify the imposition of
an increased sentence. See Prinkey, 277 A.3d at 565 (citation & quotation
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marks omitted). Thus, the trial court had no authority to impose the March
9, 2022, sentence.
Lastly, we note that neither the trial court nor the Commonwealth
provide any authority for the court’s assertion that it could impose an
increased sentence because it was conducing a sentencing de novo. See N.T.,
3/30/22, at 4. Rather, the case law is clear that Pearce and its progeny
control.
Therefore, because we conclude the trial court’s decision to increase
Appellant’s aggregate sentence upon his motion for modification, absent any
request by the Commonwealth, raises a presumption of judicial vindictiveness
which is not rebutted by evidence of post-sentencing conduct or new
information supporting an increase, we are constrained to vacate the
judgment of sentence imposed on March 9, 2022, and remand for the trial
court to reinstate the sentence imposed on February 14, 2022.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
President Judge Emeritus Bender joins this Memorandum.
President Judge Emeritus Stevens files a Dissenting Memorandum.
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DATE: 12/4/2023
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